Decision-Making Representation Order

May 17, 2023

It feels like my work life currently revolves solely around the introduction of the Assisted Decision-Making Capacity Act 2015. It seems to be all I am researching and getting my head around. In addition, since the introduction of the Act, we have received a number of enquiries about different aspects of the Act.

One aspect in particular that I have recently been examining and which has gained some attention from clients, refers to what is called a Decision-Making Representation Order. This application is somewhat akin to the former Ward of Court system.

If a person (known as the Relevant Person) lacks capacity and certain decisions require to be made on their behalf, an application must be made to the Court to appoint what is called a Decision-Making Representative (DMR). This DMR is appointed by the Court and is generally a person who is known and trusted by the Relevant Person. If, however, a specific person is not available or unwilling to make the application, the Court can select someone suitable from the panel of trained experts appointed by the Decision Support Service.

This application is made to the Circuit Court. The application is subject to Court stamping fees. The application is set out on a number of specific detailed forms. The application must set out the Orders you require. The DMR can only make decisions based on these specified Orders and the DMR must consider the Relevant Person’s wishes at all times during the decision-making process.

There are a number of important steps to go through in respect of the Court application as follows:

  1. Check that the applicant is approved to make the application. 

There is a list of people under the Act who can make an application to Court for a declaration about a person’s capacity. This includes:

    • the relevant person
    • the Decision Support Service
    • the person's spouse, civil partner or cohabitant
    • the person's adult child
    • an existing decision supporter for the person

Any other adult with a genuine interest in the welfare of the person can make an application to Court, but they must get the permission of the Court first.

If you are not one of the people listed in the Act as above, then you must make an application to the Court for consent to bring the Capacity Application. This application is done by way of a specific form which includes details of any existing support arrangements and provides information as to why the application cannot be made by one of the persons who do not need permission to make the application.

It appears to me to be extraordinary, and a major omission, that the parents of an adult child who lacks capacity are not included in this list. The parents of an adult child who lacks capacity are clearly people who should be entitled to make an application to the Court for a declaration about their child’s capacity without the prior permission of the Court. I have raised this serious issue with the Decision Support Service and with the Court and I have not as yet received a satisfactory response. I will be sure to monitor this over time.

  1. Complete the Capacity Application form

The person making the application, or their solicitor, must make an application to Court using a specific form called a Capacity Application. This includes information about:

    • who is making the application
    • their connection to the person
    • the benefit to the person in making the application
    • why other options cannot be taken
    • the proposed DMR if a suitable person is being proposed
    • any existing decision support arrangements

Other documents required as part of the application include:

    • an affidavit (a sworn statement) by the person making the application
    • a report by a doctor or other healthcare professional about the person's capacity
    • a report by any other expert or person that might be relevant or helpful to the Court
  1. Give notice of the application

The person making the application must tell certain people about the application they are making to the Court. This includes:

    • the relevant person
    • the Decision Support Service
    • the person's spouse, civil partner or cohabitant
    • the person's adult child
    • an existing decision supporter for the person

I am informed by the Court that at a minimum, the application must always be served on the Relevant Person and this must be done by personal service.

  1. Attend Court hearings

The Court may have one or more hearings in order to decide what to do about the application. The Court will first decide whether or not to make a declaration that the person lacks capacity to make one or more specific decisions. The Court will then decide whether to appoint a DMR to make certain decisions on behalf of the person.

  1. Court makes Decision-Making Representation Order

If the Court decides to appoint a DMR, the Court will decide what decisions the DMR will make on behalf of the person and what powers and duties they will have. The Court Order will be as limited as needs be in both duration and the different areas of the person's life that it covers to ensure that it is as suitable and as practical as possible for each Relevant Person’s circumstances.

The application process is clearly very detailed and should, if possible, be completed with the assistance of a solicitor, the Court services or the Decision Support Service.

Wolfe & Co LLP Solicitors are experienced advocates in all areas of the Court and are well equipped to assist you in the making of this vital application on behalf of your loved one.

 

By Aislinn Collins Solicitor

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

May 2023 Wolfe & Co. LLP Solicitors

Market Street, Skibbereen, Co. Cork - web: www.wolfe.ie

Tel: 028-21177, e-mail: info@wolfe.ie