Assisted Decision Making and Capacity Applications Insights
Let’s review the Assisted Decision Making and Capacity Applications. The Assisted Decision Making (Capacity) Act 2015 is now well and truly operational. In 2023 a not insignificant amount of these applications came before the Circuit Court, that said Capacity Applications to appoint a Decision Making Representative are still relatively novel.
Within our own office we have successfully navigated the new application process and had clients appointed as Decision Making Representatives in a number of cases.
Our firm already has a number of applications in motion for 2024, some of which Capacity Applications will have hearings completed in January.
As we start into this new year, it is worth reviewing the operation of the new system in 2023. Not least, we are now utilising regularly the new lexicon of language introduced, the new terms we most frequently use and encounter are:
- the Relevant Person: the term to describe the person in respect of whom a Decision Support Application or Capacity Order is being intended;
- Decision Making Representation Order: the Court Order which is the outcome of the Capacity Application
- Decision Making Representative (DMR): the person authorised to make a decision or certain decisions on behalf of the relevant person in the Decision Making Representation Order.
- Capacity Assessment being the Report(s) required from experienced and qualified medical practitioners and social workers that the Court will require are submitted as part of the application.
- Capacity Application: a name given to the hearing of a Decision Support Application.
- The cases completed in 2023, inform us that the Court when hearing a Capacity Application will seek to ensure that all components of the application have been properly attended to, including:
- Notification and representation to the Relevant Person and the designated Notice Parties of the application has been properly and fulsomely communicated.
- Complete Capacity Assessments are to hand and fully address the matters in respect of which an Order is sought.
- The Will and Preference of the Relevant Person is identified and expressed as part of the Capacity Application while providing support and protection.
Both our partners, Niamh Moran and Anthony Carmody, were similarly involved in the early stages of the implementation of the Mental Health Act, 2001 and have significant experience working with persons and their families with mental health concerns including in the area of severe dementia, mental illness, and intellectual disabilities. That combined experience of legal matters and medical and psychiatric matters holds great value in the ease with which they can complete the applications and see Capacity Applications drafted and submitted with speed and ease.
Carmody Moran Solicitors LLP are experts in the area of mental health law and capacity law, and the new law extends the protection and options available to vulnerable adults and to those with capacity issues, and who are currently wards of court.
We anticipate that in 2024 an increasing number of applications for declarations as to capacity in particular to enable Fair Deal applications to progress, and more applications for Decision Making Orders and Capacity Orders to the Circuit Court and the appointment of a Decision Making Representative (“DMR”) Order, as well as applications for discharge from Wardship by existing wards as the new system develops.
An initial information consultation is offered to review the matter and assess the situation with an expert Solicitor at our offices in Blanchardstown, Dublin 15, or at 27 Mount Street Upper, Dublin 2. The fee for the initial appointment is €230 plus vat at 23% being €283. To make an appointment please telephone 018272888 or email us at [email protected]
Niamh Moran is a partner at Carmody Moran Solicitors in Dublin. Niamh’s litigation experience includes injury claims law (both Plaintiff and Defendant) and is an Advisory Board Member of the State Claims Agency.