Assisted Decision-making (Capacity) Act 2015

1.1 Background:

The Assisted Decision-making (Capacity) Act 2015 (“ADMA”) came into force on various dates between 2016 and 2023.  The ADMA provides for: 

• the reform of the law relating to persons who require or may require assistance in exercising their decision-making capacity, whether immediately or in the future;
• the appointment of persons to assist them in decision-making or to make decisions jointly with them and for the appointment by the Circuit Court of decision-making representatives;
• the amendment of the law relating to enduring powers of attorney; and the appointment and functions of the Director of the Decision Support Service (“DSS”).

1.2  Provisions of the ADMA: 

Capacity: The provisions of the ADMA begin at the starting point that a person’s capacity should be construed functionally.  A person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time.

Lacking capacity:   A person is deemed to lack the capacity to make a decision if he or she is unable— (a) to understand the information relevant to the decision, (b) to retain that information long enough to make a voluntary choice, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.

1.3  Definitions:

In the ADMA a “relevant person” means—

(a) a person whose capacity is in question or may shortly be in question in respect of one or more than one matter,

(b) a person who lacks capacity in respect of one or more than one matter, or

(c) a person who falls within paragraphs (a) and (b) at the same time but in respect of different matters,

as the case requires.

In the ADMA a “person who lacks capacity” means a relevant person who falls within paragraph (b) of the definition of “relevant person” but only in relation to the matter or matters by virtue of which he or she falls within that paragraph.

1.4 Levels of assistance with decision-making:

The ADMA introduced different levels of assistance with decision-making as follows:

• Decision-making assistant
• Co-decision-maker
• Decision-making representative
• Decision-making order

2.1     Decision-making assistant:

A relevant person can enter into a decision-making assistance agreement and appoint a decision-making assistant to assist them in making decisions on their personal welfare or property and affairs, or both. 

2.2     Applications involving a decision-making assistant: 

Given that the decision-making assistant’s function is to assist with rather than make decisions, applications to Tailte Éireann involving a decision-making assistant will most likely be to obtain information to assist with the decision, such as an application for a copy instrument.

2.3     Supporting documentation:

An application for information to Tailte Éireann by a decision-making assistant should be accompanied by the following documentation:

1. A Decision Support Service (“DSS”) certified copy of the decision-making assistance agreement; and
2. Confirmation from the decision-making assistant or their solicitor that the agreement is still in full force and effect and has not been revoked or amended.

2.4     Redaction:

The following details should be redacted from the copy of the decision-making assistance agreement lodged with Tailte Éireann as part of the application:

• In the paragraph entitled ‘Details of personal welfare decisions’ – any details relating to personal welfare decisions which are not relevant to the property which is the subject of the application to Tailte Éireann.
• In the paragraph entitled ‘Details of property and affairs decisions’ – any details relating to personal or financial matters which are not relevant to the property which is the subject of the application to Tailte Éireann.

2.5     Checklist:

The agreement must:

• Give the decision-making assistant the power to assist with obtaining information in respect of the property;
• Not have expired. (Note that some agreements will have an expiry date but if not, all decision-making agreements expire three years after commencement); and
• Have been notified to the Decision Support Service. (Note that whilst these agreements must be notified to the DSS, the DSS does not maintain a register of decision-making assistance agreements but will provide a certified copy to the parties).

2.6     Example: 

An example of a certified copy decision-making assistance agreement from the Decision Support Service is included at Appendix 1 for reference purposes only.

3.1     Co-decision-maker: 

A relevant person can enter into a co-decision-making agreement and appoint a suitable person as a co-decision-maker to jointly make decisions with them on their personal welfare or property and affairs, or both.  

3.2     Applications involving a co-decision-making agreement:

Any application authorised by the provisions of the co-decision-making agreement in respect of the property which is the subject of the application to Tailte Éireann. 

3.3     Supporting documentation:

An application to Tailte Éireann involving a co-decision-making agreement should be accompanied by the following supporting documentation:

1. An authenticated copy of the co-decision-making agreement certified by the Decision Support Service (“DSS”) (which means that the co-decision-making agreement is registered with the DSS, bears the signature of the Director, the date on which his or her signature was applied and the date of registration of the co-decision-making agreement); and
2. A solicitor’s certificate that the co-decision-making agreement is still in full force and effect and has not been revoked or amended.

3.4     Redaction:

The following details should be redacted from the authenticated copy of the co-decision-making agreement lodged with Tailte Éireann as part of the application:

• In the paragraph entitled ‘Details of relevant personal welfare decisions’ – any details relating to personal welfare decisions which are not relevant to the property transaction which is the subject of the application to Tailte Éireann.
• In the paragraph entitled ‘Details of relevant property and affairs decisions’ – any details relating to personal or financial matters which are not relevant to the property transaction which is the subject of the application to Tailte Éireann.

3.5     Checklist:

• The co-decision-making agreement should contain a provision authorising the co-decision-maker to make the decision in respect of the property;
• The copy of the co-decision-making agreement must be authenticated by the DSS. Please note that an authenticated copy of the co-decision-making agreement may be downloaded free of charge by the co-decision-maker from the DSS website or by other specified parties on payment of a fee;
• The application cannot be in respect of a voluntary deed or contain any element of gift;
• The Deed or Land Registry Form should be executed by the relevant person and the co-decision-maker and the date of execution must post-date the date of registration of the agreement with the DSS;
• Where the appointer/relevant person is unable to make his or her signature, a document may be signed on the appointer’s behalf by a person who has attained the age of 18 years and who is not the co-decision-maker if the appointer is present and directs that the document be signed on his or her behalf by that person. An affidavit of attestation witness must accompany the deed if it has been so executed;
• The appropriate Land Registry Form should be amended to include the co-decision maker as a party. The Form should state that the co-decision-maker is acting under the co-decision-making agreement and should include the parties to the agreement, the date of agreement and the date of registration with the DSS.   For example:

‘A.B., the registered owner and M.N., the co-decision-maker appointed by the co-decision-making agreement dated x day of x 20xx between A.B. and M.N. and registered with the Decision Support Service on the x day of x 20xx ….’ ; and

• A search may be carried out by Tailte Éireann of the Decision Support Service Register to confirm the registration of the co-decision-making agreement. 

3.6     Example:  

An example of an authenticated copy co-decision-making agreement from the Decision Support Service is included at Appendix 2 for reference purposes.

4.1     Decision-making representative:  

A decision-making representative, in relation to a relevant person, means a person appointed by the court pursuant to a decision-making representation order to make one or more than one decision specified in the order on behalf of the relevant person. 

4.2     Applications involving a decision-making representative: 

Any application authorised by the provisions of the decision-making representation order in respect of the property which is the subject of the application to Tailte Éireann. 

4.3     Supporting documentation:

An application to Tailte Éireann involving a decision-making representative should be accompanied by the following supporting documentation:

1. An authenticated copy of the decision-making representation order certified by the Decision Support Service (“DSS”) (which means that the decision-making representation order is registered with the DSS, bears the signature of the Director, the date on which his or her signature was applied and the date of registration of the decision-making representation order); and
2. A solicitor’s certificate that the decision-making representation order is still in full force and effect and has not been revoked or amended.

4.4     Redaction:

The following details should be redacted from the authenticated copy of the decision-making representation order lodged with Tailte Éireann as part of the application:

• In the paragraph entitled ‘Authority in relation to personal welfare decisions’ – any details relating to personal welfare decisions which are not relevant to the property transaction which is the subject of the application to Tailte Éireann.
• In the paragraph entitled ‘Details of the Court Order’ – any details relating to personal or financial matters which are not relevant to the property transaction which is the subject of the application to Tailte Éireann.

4.5     Checklist:

• The decision-making representation order should contain a provision authorising the decision-making representative to make the decision in respect of the property;
• The copy of the decision-making representation order must be authenticated by the DSS. Please note that an authenticated copy of the decision-making representation order may be downloaded free of charge by the decision-making representative from the DSS website or by other specified parties on payment of a fee;
• The application cannot be in respect of a voluntary deed or contain any element of gift;
• The Deed or Land Registry Form should be executed by the decision-making representative as agent of the relevant person and the date of execution must post-date the date of the appointment in the Court Order;
• The appropriate Land Registry Form should be amended to include the decision-making representative as a party. The Form should state that the decision-making representative is acting under the decision-making representation order and should include the date of the order and the date of registration with the DSS.   For example:

‘M.N., the decision-making representative of A.B., the registered owner, appointed by the decision-making representation order dated x day of x 20xx and registered with the Decision Support Service on the x day of x 20xx ….’; and

• A search may be carried out by Tailte Éireann of the Decision Support Service Register to confirm the registration of the decision-making representation order.

4.6     Example:

An example of an authenticated copy of a decision-making representation order from the Decision Support Service is included at Appendix 3 for reference purposes only. 

4.7     Applications for First Registration:

In an application for first registration made by a decision-making representative, the Form 1 or Form 2 affidavit must contain additional averments that the decision-making representative is duly authorised to and has the necessary means of knowledge to swear the affidavit.  This may not be appropriate in respect of decision-making representatives appointed by the Court from the panel of experts, who may not be familiar with the property which is the subject of the application to Tailte Éireann. It may also not be appropriate in respect of Form 5 or Form 6 applications.

5.1     Decision-making order: 

The Court can make a decision-making order which is an order making the decision or decisions concerned on behalf of the relevant person where the Court is satisfied that the matter is urgent or that it is otherwise expedient for it to do so. This is the Court making the decision and differs from a decision-making representation order which is appointing a decision-making representative to make the decision.

5.2     Applications under a decision-making order:

It is anticipated that such urgent and interim orders will be in respect of personal

welfare matters rather than property matters.  However, in the event that an application to Tailte Éireann involves a decision-making order in respect of property, the following should be taken into consideration.

5.3     Supporting documentation:

An application to Tailte Éireann involving a decision-making order should be accompanied by the following supporting documentation:

1. An authenticated copy of the decision-making order certified by the Decision Support Service (“DSS”) (which means that the decision-making order is registered with the DSS, bears the signature of the Director, the date on which his or her signature was applied and the date of registration of the decision-making representation order); and
2. A solicitor’s certificate that the decision-making order is still in full force and effect and has not been revoked or amended.

5.4     Redaction:

The following details should be redacted from the authenticated copy of the decision-making order lodged with Tailte Éireann as part of the application:

• In the paragraph entitled ‘Authority in relation to personal welfare decisions’ – any details relating to personal welfare decisions which are not relevant to the property transaction which is the subject of the application to Tailte Éireann.
• In the paragraph entitled ‘Details of the Court Order’ – any details relating to personal or financial matters which are not relevant to the property transaction which is the subject of the application to Tailte Éireann.

5.5     Checklist:

• The decision-making order should contain a provision authorising the decision in respect of the property;
• The copy of the decision-making order must be authenticated by the DSS; and
• A search may be carried out by Tailte Éireann of the Decision Support Service Register to confirm the registration of the decision-making order.

6.1     Commencement of new provisions:

The provisions in the ADMA (Part 7) in relation to Enduring Powers of Attorney commenced on the 26^th April 2023.  The provisions of Part 7 of the ADMA do not apply in respect of Enduring Powers of Attorney under the Powers of Attorney Act 1996 (‘the 1996 Act’) which were created prior to 26^th April 2023.  From the 26^th April 2023, an Enduring Power of Attorney under the 1996 Act cannot be created and the 1996 Act shall not apply to an Enduring Power of Attorney created after that date.

Our current registration practices and procedures and the Tailte Éireann Practice Direction published in respect of the 1996 Act should be consulted in respect of Enduring Powers of Attorney created before 26^th April 2023.

These guidelines are in respect of Enduring Powers of Attorney created from the 26^th April 2023 under the ADMA.

6.2     Applications under an Enduring Power of Attorney created from 26th April 2023:

Any application authorised by the provisions of the Enduring Power of Attorney in respect of the property which is the subject of the application to Tailte Éireann.

6.3     Supporting Documentation:

An application to Tailte Éireann involving an Enduring Power of Attorney should be accompanied by the following supporting documentation:

1. An authenticated copy of the notified and active Enduring Power of Attorney certified by the Decision Support Service (“DSS”) (which means that the Enduring Power of Attorney is registered with the DSS, bears the signature of the Director, the date on which his or her signature was applied, the date of registration of the Enduring Power of Attorney and the date that notification was accepted by the DSS); and
2. A solicitor’s certificate that the Enduring Power of Attorney is still in full force and effect and has not been revoked or amended.

6.4     Redaction:

The following details should be redacted from the authenticated copy of the Enduring Power of Attorney lodged with Tailte Éireann as part of the application:

• In the paragraph entitled ‘Authority in relation to personal welfare decisions’ – any details relating to personal welfare decisions which are not relevant to the property transaction which is the subject of the application to Tailte Éireann.
• In the paragraph entitled ‘Details of relevant property and affairs decisions’ – any details relating to personal or financial matters which are not relevant to the property transaction which is the subject of the application to Tailte Éireann.

6.5     Checklist:

• The authenticated copy of the Enduring Power of Attorney should contain a provision authorising the decision in respect of the property;
• The copy of the Enduring Power of Attorney must be authenticated by the DSS and must show that the Enduring Power of Attorney has been notified to the DSS and that notification has been accepted by the DSS;
• The application cannot be in respect of a voluntary deed or contain any element of gift;
• The Deed or Land Registry Form should be executed by the Attorney as attorney of the relevant person and the date of execution must post-date the ‘date notification accepted’ date on the authenticated copy of the Enduring Power of Attorney;
• The appropriate Deed or Land Registry Form should be amended to include the Attorney as a party. The Form should state that the Attorney is acting under the Enduring Power of Attorney and should include the date of the Enduring Power of Attorney, the date of registration with the DSS and the date notification was accepted by the DSS.   For example:

‘M.N., the Attorney of A.B., the registered owner, appointed by the Enduring Power of Attorney dated x day of x 20xx and registered with the Decision Support Service on the x day of x 20xx, notification of which was accepted by the Decision Support Service on the x day of x 20xx….’; and

• A search may be carried out by Tailte Éireann of the Decision Support Service Register to confirm the registration and acceptance of notification of the Enduring Power of Attorney.

6.6     Examples:

An example of an authenticated copy of a registered Enduring Power of Attorney from the Decision Support Service is included at Appendix 4.  An example of an authenticated copy of a notified and accepted Enduring Power of Attorney from the Decision Support Service is included at Appendix 5.  Please note the difference, in that the registered copy Enduring Power of Attorney in Appendix 4 has a date of registration only, whereas the notified active copy Enduring Power of Attorney in Appendix 5 has a date of registration and a date notification accepted.  Tailte Éireann will require the notified active Enduring Power of Attorney as shown in Appendix 5 which states the date notification accepted. 

6.7     Applications for First Registration:

In an application for first registration made by an Attorney, the Form 1 or Form 2 affidavit must contain additional averments that the Attorney is duly authorised to and has the necessary means of knowledge to swear the affidavit.  This may not be appropriate in respect of Attorneys who are not familiar with the property which is the subject of the application to Tailte Éireann and would therefore not have the necessary means of knowledge to swear the affidavit.  It may also not be appropriate in respect of Form 5 or Form 6 applications.

Head of Legal Standards and External Liaison Registration

14 of October  2025

Appendix 1 – Sample certified copy decision-making assistance agreement

Appendix 2 – Sample authenticated copy co-decision-making agreement

Appendix 3 – Sample authenticated copy decision-making representation order

Appendix 4 – Sample authenticated copy registered Enduring Power of Attorney

Appendix 5- Sample authenticated copy notification accepted Enduring Power of Attorney