Making a Capacity Application
Blanchardstown, Castleknock, 27 Upper Mount Street, Dublin City Centre
Making a Capacity Application in Ireland
The Assisted Decision Making (Capacity) Act, 2015 (the “ADMA”) provides a process for an application to be made to the Court to appoint a Decision Making Representative for a person who no longer has legal or medical capacity.
In situations where a person does not hold an Enduring Power of Attorney, to deal with a person’s welfare and financial decisions, during a period of a loss of capacity, a Capacity Application must be prepared and submitted to the Circuit Court. There are various Court forms associated with this process and the first initial step having taken legal advice and identified the best pathway forward, is to obtain a medical report detailing the Relevant Person’s capacity.
A Capacity Report is a report from a medical practitioner or other healthcare professional on the capacity of the person with respect of whom the Application is required. That person is referred to in law and for the purposes of all of the paperwork as the Relevant Person.
The capacity assessment will use a functional test and will essentially involve an assessment of the Relevant Person to see if that person can be said to lack the capacity to make a decision.
A person will be deemed to lack capacity to make a decision if they are unable to do one of the following:
Appointment of a Decision Making Representative >
- Understand information relevant to the decision.
- Retain that information long enough to make a voluntary choice.
- Use or weigh up that information as part of the process of making the decision.
- To communicate the decision in whatever way they communicate (more than verbal communication is taken into account in this regard).
Our role as your Solicitors
Our role as your solicitors is to assist you in gathering all of the information relevant to prepare the Application for the Court to draft and submit the Application for Court attend the hearing and advise you around this process. This will include liaising with the appropriate medical professional once identified to prepare the Capacity Report. It will also include meetings with you to guide you through the process.
Next Steps of Capacity Application
We offer an initial consultation to review your requirements starting at €230 plus VAT being €283. At the meeting we can review your situation and what is the most suitable way to progress.
We can review all of the avenues available under the Assisted Decision Making (Capacity) Act, 2015 (the “ADMA”), from Decision Making Assistance Agreements, Co-Decision Making Agreements to Capacity Applications and the making of a Decision Making Representation Order and appointment of a Decision Making Representative. There is a range of new terms and processes and we will explain these to you in plain English and follow up with a letter of advices having reviewed your situation and a notice of legal cost having assessed what is the best pathway forward to address matters.
The previous process was known as Wardship. This was a very outdated process but it did have a number of differences to this new process. Unlike the old process, the person seeking to be appointed as the Decision Making Representative must request from the Court the specific powers that they wish 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 what matters need to be addressed and the best pathway forward.
We will work with you to assess what outcomes you wish to achieve by bringing the Application.
When a date is set for the matter to come before the Court, we will be on hand to attend to all matters in advance of the hearing and prepare the papers for the Court that the Court will require to be filed in advance of the Application proceeding.
Many of our qualified solicitors are qualified mental health lawyers and are fully trained in mental health law and have worked with the Mental Health Act, 2001 since its implementation in 2005, as well as in the area of Wardship and Mental Health Tribunals.
After a Court hearing, the Court, if satisfied, will make a Decision Making Representation Order. The Court will appoint a person to make certain decisions on behalf of the Relevant Person if the Court deems that person unable to make the decisions for themselves. That person is called a Decision Making Representative.
If there is no one suitable able to undertake the role, the Court can appoint a Decision Making Representative from its panel of trained experts maintained by the Decision Support Representative. An Order will then be issued from the Court stating the specific items in relation to which the Decision Making Representative will have the authority to act.
At Carmody Moran Solicitors LLP our specialist Solicitors advise and act in Wardship matters, Mental Health and Capacity issues, Property law & Conveyancing , 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 the office.
Frequently Asked Questions about Making a Capacity Application in Dublin, Ireland
My father / mother has lost capacity, I have been advised that we need to apply for Fairdeal, what do I do?
All applications are made under Part 5 of the Assisted Decision Making (Capacity) Act, 2015. The application will be required in order for the appointed Decision Making Representative to complete the charging order to complete the Nursing Home Support Loan.
Who can make a Capacity Application?
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.
My adult child does not have capacity to make decisions around their care and welfare nor to manage their property and finances, what can I do?
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.
What if there is no one available to act as Decision Making Representative?
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.
Your Expert Appointment of a Decision Making Representative Legal Team in Ireland
At Carmody Moran Solicitors our experienced Inheritance and Family Law Solicitors Ireland are on hand to advise and skilled in handling all nature of inheritance and estate planning.
The two partners of Carmody Moran Solicitors have a combined total of in excess of twenty five years professional legal experience. Together with their associates they aim to make the Court process as straight forward and navigable as possible while being on hand to alleviate their clients concerns and worries about going through the Court process.
Anthony Carmody is one of the founding Partners of Carmody Moran Solicitors.
He has significant experience in personal injury cases and general litigation having handled literally thousands of cases on behalf of clients based in Ireland and abroad.
Niamh Moran is one of the founding partners of Carmody Moran Solicitors and is a solicitor with wide ranging experience across all areas of general practice.
Niamh manages the family law, conveyancing in Dublin, and probate divisions of the practice. Niamh’s practice of law is extremely varied and she is regularly sought out for her expertise by clients and colleagues alike.
*While we have made every effort to provide accurate information, the law is always changing and it affects each person differently. This information is not a substitute for specific advice about you personally and it is not intended as legal advice. We will not be liable to you if you rely on this information. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. This statement is made in compliance with Reg.8 of SI 518 of 2002.
You should note that no solicitor/client relationship or duty of care or liability of any nature shall exist or be deemed to exist between Carmody Moran Solicitors and you until you have received a written letter of engagement from us in which we confirm our appointment as your Solicitors.