Capacity Applications under Part 5 of the Assisted Decision-Making (Capacity) Act include applications for the appointment of a Decision-Making Representative.
You may wish to talk to a solicitor before making your application. A solicitor can provide legal advice, discuss the options available and complete the forms on your behalf. A solicitor can also manage your case and represent you in court.
Any affidavits lodged in respect of an application must be sworn and signed by the deponent (the person swearing the information) in person in front of an independent Commissioner for Oaths or practising solicitor who will verify the affidavit.
Please note that decision-making representation orders are only appropriate where the Relevant Person lacks capacity to make certain decisions even if a lower tier support arrangement (for example a decision-making assistance agreement or a co-decision-making agreement) was in place. For more information on all the support arrangements available under the Assisted Decision-Making Capacity Act, please see the website of the Decision Support Service.
What is a Decision-Making Representation Order (DMRO)?
If the Court declares that the person lacks capacity to make certain decisions, even with support, it can make a decision-making representation order and appoint a decision-making representative to make those decisions on behalf of the Relevant Person.
The declaration of incapacity is kept under review by the Court.
A decision-making representation order is an arrangement to appoint a substitute decision-maker. This means that the decision-making representative is the person responsible for making the decisions included in the order. The order will state what functions the decision-making representative will have and what decisions they can make.
The Court will usually appoint someone who is known to and trusted by the Relevant Person in the role of decision-making representative. If there is no-one known to the Relevant Person who is willing or suitable to be appointed as their decision-making representative, then the Court can select someone from the DSS panel of trained experts.
The decision-making representative can only make decisions that are written down in the decision-making representation order. The decision-making representative must consider the will and preference of the Relevant Person during the decision-making process.
The court can appoint more than one person to act as a decision-making representative for a Relevant Person. They can be appointed in relation to separate decisions or can be given responsibility for the same decisions. The court can specify if they must act together or individually.
The DSS is responsible for registering the decision-making representation order and for supervising the decision-making representative.
What decisions can be included in a decision-making representation order?
The decisions that a decision-making representative may be required to make come under two categories:
Personal welfare decisions
Decisions about a person’s interests, health and wellbeing. These types of decisions can include:
- accommodation, including whether or not the Relevant Person should live in a designated centre
- participation by the Relevant Person in employment, education or training
- participation by the Relevant Person in social activities
- decisions on any social services provided or to be provided to the Relevant Person
- healthcare
- participation by the Relevant Person in healthcare research and social care research except in relation to clinical trials of medicinal products for human use or clinical investigations undertaken to assess the safety or performance of medical devices
- other matters relating to the Relevant Person’s well-being
Property and affairs decisions
Decisions about property, business and money matters. These types of decision can include:
- the custody, control and management of some or all of the Relevant Person’s property or property rights
- the sale, exchange, mortgaging, charging, gift or other disposition of the Relevant Person’s property
- the acquisition of property by the Relevant Person, or on his or her behalf
- the carrying on, on behalf of the Relevant Person, of any profession, trade or business which may lawfully be carried on by a person other than the Relevant Person
- the making of a decision which will have the effect of dissolving a partnership in which the Relevant Person is a partner
- the carrying out of any contract entered into by the Relevant Person
- the discharge of the Relevant Person’s debts, tax and duty liabilities and obligations or other obligations
- the execution or exercise of any of the powers or discretions vested in the Relevant Person as a tenant for life
- providing, to the extent that the Relevant Person might have been expected to do so, for the needs of a decision-making assistant, a co-decision-maker, an attorney, a designated healthcare representative or a decision-making representative for the Relevant Person or the needs of other persons;
- the conduct of proceedings before any court or tribunal, whether in the name of the Relevant Person or on his or her behalf
- making an application for housing, social welfare or other benefits or otherwise protecting or advancing the interests of the Relevant Person in relation to those matters
Who can be a decision-making representative?
If you are applying to be a decision-making representative, or have been nominated as one on a Capacity Application, you should read the Code of Practice for Decision-Making Representatives. This is available on the DSS website.
Some people cannot be a decision-making representative. You are not allowed to be a decision-making representative if you:
- Have been convicted of an offence against the Relevant Person, or their child
- Have been subject to a safety or barring order in relation to the Relevant Person, or their child
- Are financially insolvent (unless the appointment is in relation to personal welfare matters only)
- Are the owner or a registered provider of a designated centre or mental health facility where the person lives, or a person residing with, employed by or an agent of such owner or registered provider (unless you are a relative of the Relevant Person)
- Have been convicted of an offence of forcing or pressuring a person to make a decision support arrangement
- Have been convicted of an offence of ill-treating or will-fully neglecting a Relevant Person
Why would a Capacity Application be made?
If there is a concern that a person is unable to make certain decisions which need to be made, even with the support of a decision-making assistant, or a co-decision-maker, and that person has not previously made an enduring power of attorney or an advance healthcare directive for those particular decisions, then a decision-making representative may need to be appointed to make those decisions on behalf of the person concerned.
When would a Capacity Application be made?
Before a Capacity Application is made, the applicant must make sure all steps have been taken to provide the Relevant Person with the support they need in a less intrusive manner. This may include supported decision-making arrangements such as a decision-making assistance agreements or co-decision-making agreements or through other informal mechanisms that would allow the Relevant Person to keep control of those decisions in their own life.
The Court must be satisfied that a decision-making representation order or decision-making order is the only appropriate and practical option remaining before it will consider making such an order.
A Capacity Application may be necessary from time to time to ensure that the person’s will and preferences are respected and that their property and affairs are preserved for their benefit.
A Capacity Application may be made when the applicant believes that a Relevant Person no longer has the capacity to make decisions within an existing decision support arrangement.
A Capacity Application may be made when a Relevant Person suddenly and unexpectedly loses capacity to make decisions about certain matters, for example, as a result of an accident or injury and has not put an enduring power of attorney or advance healthcare directive in place.
A Capacity Application could also be needed if the person who was providing support is no longer willing or able to continue providing such support for any reason, including illness or death, and the Relevant Person is not able to make certain decisions without support. Where no other person is willing or able to provide support, an application may need to be made to court.
Are there Capacity Applications where the Circuit Court does not have jurisdiction under the Assisted-Decision-Making (Capacity) Act?
The Circuit Court has jurisdiction under the ADMC Act in capacity matters except for the following matters which are reserved for the High Court:
- decisions on organ donation where the donor lacks capacity, and
- applications on withdrawal of life-sustaining treatment from a person who lacks capacity.
When making an application that includes authorisation for a certain courses of treatment or medical intervention, the applicant will need to consider what that treatment extends to. For example, where that treatment necessitates restraint or detention, an application to the High Court exercising its inherent jurisdiction might be advisable, as ADMC does not give the Circuit Court power to make detention orders. You can contact the Central Office of the High Court for queries in relation to High Court matters.