Capacity applications to appoint Decision Making Representative
We are now past the one year mark since the introduction of the Assisted Decision Making (Capacity) Act, 2015 (the “ADMA”) 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 is Evolving
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.
Applying for a Decision Making Representative to obtain Fair Deal
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.
Case Details
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.
Independent Solicitor
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 Conclusion
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”.
Decision Making Representative, to manage the finances of a Relevant Person or for a Decision Making Representative to sell a property
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.
Contact Carmody Moran Solicitors
If you wish to arrange an appointment for more information concerning such matters, please telephone us on 018272888 or email us at [email protected]
Capacity Applications Frequently Asked Questions
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.
For questions or clarifications, please telephone us on 018272888 or contact us by email at [email protected] . We look forward to hearing from you.
What are Capacity Applications?
Capacity applications are a legal process established under the Assisted Decision-Making (Capacity) Act 2015. They allow the appointment of a Decision Making Representative (DMR) for someone who lacks the capacity to make certain decisions about their own well-being, such as healthcare, finances, and living arrangements.
When are Capacity Applications Used?
Capacity applications are typically used when someone experiences a decline in mental capacity due to illness, age, or disability. These applications can be crucial for ensuring their well-being and managing their affairs effectively.
How Does the Irish Court Decide Capacity?
The court will consider various factors when determining capacity, including medical reports, observations of the individual, and their ability to understand and communicate decisions.
Who Can Apply for a Decision Making Representative?
Several parties can apply for a DMR, including family members, healthcare professionals, or social workers. In the case of the HSE applying for a DMR, an independent solicitor may be appointed to represent the individual (Relevant Person) in court
Who Can Be a Decision Making Representative?
A DMR can be a family member, friend, or a professional appointed by the Decision Support Service (DSS). The court prioritises the best interests of the individual and may choose a non-family member if there are potential conflicts of interest within the family.
What Happens if There's a Dispute About Who Should Be the DMR?
As seen in the case of Joan Doe, disputes can arise between family members regarding the appointment of a DMR. The court will evaluate each candidate’s suitability based on potential conflicts of interest, transparency, and ability to provide the necessary level of care.
What are Conflicts of Interest in Capacity Applications?
Conflicts of interest occur when someone appointed to manage another person’s affairs might have personal motivations that could clash with the best interests of the individual. This could involve financial gain, inheritance rights, or inadequate care capacity.
How Can I Get Legal Help with Capacity Applications?
Carmody Moran Solicitors can assist you with various aspects of capacity applications. We can represent applicants seeking a DMR appointment, advise the Relevant Person on their rights, and address potential conflicts of interest.
Contact Carmody Moran Solicitors
For further information or to schedule a consultation, call us at 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.