Assisted Decision-Making (Capacity) (Amendment) Bill 2026: Second Stage
Seanad Éireann — 2026-03-26
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Cathal Byrne (FG), Cultural and Educational Panel

The Minister of State is most welcome and I welcome the opportunity to make a short contribution on Second Stage of this legislation. About ten or 11 years ago, I was a law student while this legislation was being introduced. I remember hearing in lectures about the background to this legislation and the reason it was so important that we moved away from the previous system, which had operated in Ireland from 1871 to 2015. What we have before us is legislation that will have a profound impact on the lives of 1,400 people, perhaps even more than that, out in the community, as well as on their families and loved ones, the people they need who have cared for them over the lives. These are people who have lost capacity to make fundamental decisions about their own well-being, their financial affairs, their social life, who they should engage with, as well as healthcare decisions. These are some of the most fundamental decisions that anybody can make about their own lives. That is what is at stake here. It is important that when we are discussing this legislation, we look at it in its entirety. There are issues with the capacity Act of 2015. As a solicitor, my practice has made applications to the courts on behalf of some of these people. I have seen first-hand and engaged directly with people who have had difficulties with the legislation as it currently exists, particularly around assisted decision-making applications to the courts, the length of time the courts are taking to process those applications, the number of stakeholders involved in the applications. My experience is that while each one of these wards who is being discharged is entitled to legal aid, and they do have legal representation, the reality is that very few lawyers, solicitors and barristers are accepting as clients wards of court or who are taking on the legal aid certificates that they have. That has meant their offices are swamped. It is taking an inordinate length of time to process those applications through their offices, through no fault of their own, but also because the courts themselves, given the weight and gravity of these decisions, are reluctant to make decisions as swiftly as perhaps would happen in other ranges of court applications. It is important that, in the extension of time that we have here out to October 2027, that we look at the real reasons as to why some of these applications are taking so long, outside of what is outlined by the review that was done. That review is saying that some of the wards are reluctant, it is a new model and they may not want to be the first engagers but want to see how others are getting on and they will respond. I actually think there is an issue with access to legal representation for wards of court in this situation because of how few practices are engaging in this whole area. Perhaps that needs to be looked at properly.
I do think it is important this legislation passes. The Fine Gael group is certainly supportive of it. Later on, we will have an opportunity to discuss the enduring powers of attorney. There are amendments before that. I urge the Minister of State to take a real look at the enduring powers of attorney model that we have brought in under the 2015 legislation. I do not think it is fully working the way it was envisaged. It may need a review. Ultimately in the forefront of our minds we have to have the 1,400 wards of court, their families and the people who care for them as we pass this emergency legislation.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-03-26/debate/main
Retrieved: 2026-08-14T04:54:47+00:00
Sitting date: 2026-03-26