Making a Capacity Application Ireland

The following people can make a Capacity Application without first requiring the consent of the court to make a Capacity Application:

• the Relevant Person
• the Director of the Decision Support Service
• the Relevant Person’s spouse or civil partner or co-habitant
• the Relevant Person’s adult child
• An existing decision supporter for the Relevant Person (a decision-making assistant, co-decision-maker, attorney or a designated healthcare representative) 
• a person specified for that purpose in an existing order of the court under this Part where the application relates to that order 
• if the application relates, whether in whole or in part, to the Relevant Person’s capacity to make a decision to consent to being married or to being in a civil partnership – 

• a registrar within the meaning of section 17 of the Civil Registration Act 2004 , or
• the other party to the proposed marriage or civil partnership (if any), as the case may be, of the Relevant Person

If you are not in one of the designated categories above, then you can still apply for a Capacity Application, but you must first make an ex parte (one sided) application for the consent of the Court to bring a Capacity Application. 

Ministerial regulations may also list further persons or bodies who can make an application to the court for a declaration about a person’s capacity without needing to get the Court’s permission first.

Presuming this to be an enduring situation a Capacity Application to the Circuit Court to appoint a Decision Making Representative will be required. If you are not one of the persons eligible under the Act to bring such an application, and a parent is not such a designated category currently, you may need to bring an ex parte application to the Court for leave to bring the application. 

All applications are made under Part 5 of the Assisted Decision Making (Capacity) Act, 2015. For an appointed Decision Making Representative to undertake any task, they must have from the Court the specific powers that they wish to undertake on behalf of the Relevant Person. If you do not specifically seek authority from the Court to undertake a specific action, you will not have that authority, even if appointed as the Decision Making Representative. As such we will review your case with you at the outset and what matters need to be addressed and the best pathway forward.

If there is no one suitable or available to act as Decision Making Representative, the Court can nominate one or more persons from the panel maintained by the Decision Support Service to be the appointed Decision Making Representative.

At Carmody Moran Solicitors LLP of our Solicitors are registered with the Law Society of Ireland and are experienced legal advocates. Our specialist Solicitors advise and act in Wardship matters, Mental Health and Capacity issues, Property law, Wills, Probate and estate and future legal life planning. Carmody Moran Solicitors offers a range of legal services and is fully supported by an excellent administrative and accounting support team in office.

For questions or clarifications, please telephone us on 018272888 or contact us by email at [email protected] . We look forward to hearing from you.

We are now past the one year mark since the introduction of the Assisted Decision-
Making (Capacity) Act 2015 and the operation of Capacity applications to appoint
Decision Making Representatives in the Circuit Court. These cases happen in
private and behind closed doors, but there is now a reported judgement in a complex
case that very helpfully details the types of issues that can arise in such cases and
how the Court applies the new laws in such matters.
The law in this area is very much evolving and the written judgement of the Circuit
Court in the case of Joan Doe (“the Relevant Person”) and the HSE and John Doe,
(the Notice Party) [2023] IECC10 is very informative to such applications and the
issue of a written judgement much welcomed given that these hearings occur in
private. This case is a complex one with specific issues arising, and it is worth
analysing.
Equally it is worth mentioning that a significant amount of the cases our office has
worked upon address much more straight forward issues concerning applying for a
Decision Making Representative to obtain Fair Deal / the Fair Deal Nursing
Home loan, however the analysis of the application of the law in this judgement is
useful to review and consider as this case details a situation where there is a dispute
regarding the appointment of a Decision Making Representative.
The names in the case are anonymised so that the judgement details that it
concerns Joan Doe, a woman with significant cognitive impairment, who is the
Relevant Person, the subject of the capacity application. The primary issue before
the Court is whether Joan lacks the capacity to make decisions regarding her long-
term accommodation, medical treatment, and financial affairs. The Health Service
Executive (HSE) seeks to appoint a Decision-Making Representative (a “DMR”)
from a panel managed by the Decision Support Service (DSS), while in contrast,
Joan's siblings believed they were best suited to be her Decision Making
Representatives.
The HSE applied to the court seeking a declaration that Joan lacks capacity and
needed a Decision Making Representative. A psychiatrist provided a detailed
capacity report confirming Joan’s severe cognitive impairment due to frontotemporal
dementia.
Joan’s siblings, including John, James, Joy, and June Doe, said they had been
caring for Joan for many years. They acknowledged Joan’s lack of capacity but
contended that they are better suited to manage her affairs compared to an
independent Decision Making Representative.
An independent solicitor was appointed to communicate Joan’s voice to the court.
This is not unusual in cases of this nature and the appointment of a solicitor the
Relevant Person is increasingly becoming a feature of such cases particularly where
the Relevant Person the subject of the application is not in a position to attend Court.
Relevant Persons are currently automatically entitled to legal aid without a means
assessment to have a Solicitor appointed to represent them in Capacity matters.
The Legal Aid Board have a panel of private legal practitioners available to act in

such circumstances and Carmody Moran Solicitors are on the Legal Aid Board
Panel of private practitioners for capacity applications and appointments of a
Decision Making Representative.
The background to this case is that Joan was a widow in her late sixties with
significant assets, including her primary residence, an apartment, and several
pensions. She had a history of mental illness, including severe episodes of suicidal
ideation, and was diagnosed with frontotemporal dementia. Her siblings had been
heavily involved in managing her affairs, and there were concerns about
transparency and potential conflicts of interest due to their inheritance rights.
In the first instance the Court made a determination on the issue of Capacity and
court found that Joan lacks capacity to make decisions regarding her long-term
accommodation, medical treatment, and financial affairs.
The court evaluated the suitability of Joan’s siblings to serve as Decision Making
Representatives. Despite their long-standing involvement in her care, concerns were
raised about potential conflicts of interest, transparency in handling her assets, and
their ability to provide the necessary level of professional care.
It emerged in the case that John Doe managed Joan’s financial affairs and lived in
her property rent-free. Additionally, there were financial transactions benefiting family
members, such as a standing order payment to James Doe and contributions to his
holiday costs. These circumstances raised questions about the impartiality of family
members as Decision Making Representatives.
The family’s proposal for at-home care was deemed insufficient given Joan’s need
for 24-hour supervision, highlighting the necessity for professional care which the
family was not fully able to provide.
The court concluded that while the family had been deeply involved in Joan’s care,
an independent Decision Making Representative to ensure Joan’s best interests are
protected was appropriate, thus avoiding potential conflicts of interest and ensuring
professional and unbiased management of her affairs.
The judgment provides significant insights into how the Court approaches conflicts of
interest concerning what is in the best interests of the Relevant Person and the
interests of others.
This focus on such matters is perhaps best explained in a poster that SAGE, the
National Advocacy Service for Older People display in their window currently at their
offices. Essentially this details very eloquently how conflicts can arise in such a
situation, to paraphrase the poster says “it is one thing to lose your marbles, it is
another thing for someone to steal your marbles”.
In our experience, the Court in making Orders concerning the affairs of a person,
such as the appointment of a Decision Making Representative, to manage the
finances of a Relevant Person or for a Decision Making Representative to sell a

property, will consider carefully the potential for conflicts of interest when handling
the affairs of a Relevant Person.
Carmody Moran Solicitors have represented both Applicants applying for a Decision
Making Representative to be appointed, and equally have acted as solicitor for the
Relevant Person advising on such applications and representing their interests, and
bringing such Applications seeking for the Appointment of a Decision Making
Representative. In nearly all cases the issue of conflict of interest arises for
consideration. If you wish to arrange an appointment for more information
concerning such matters, please telephone us on 018272888 or email us at
[email protected].