Appointing Representative

Application to Court

A person whose capacity is in question and any person over 18 who has a bona fide interest in his welfare, may make an application to the court. Where made by another, it is to be made on notice to the person whose capacity is in question and the persons mentioned below.

The application shall not be made without the initial approval of the court under a unilateral ex parte application. The requirement for ex parte application and approval does not apply to the person whose capacity is in issue, a spouse, civil partner, a cohabitant, a child under 18 years, the Director, decision-making assistant where that person is co-decision maker for the person, decision making representative of the person, an attorney for the person, a designated health care representative, a person specified for that purpose in an existing court order.

The application is to state the applicant’s connection with the person, subject of the application, the benefit sought to be achieved, the reason why it has been made and in particular why the benefit sought to be achieved cannot be achieved in another, practicable and less intrusive manner, has been taken.

The applicant is to inform the court of every existing decision-making assistance agreement, co-decision-making agreement, enduring power, decision-making representation order or decision-making order of which it has knowledge.

The hearing is to be informal and other than in public. Court reporting can take place in particular by legal court reporters on a limited anonymized basis similar to that in family law cases to ensure the basis of decisions and proceedings can be known.

The Application

The court on hearing the application may allow the persons whose capacity is in question if he is not instructed the legal practitioner to be assisted in court by a  friend unless there is a decision-making assistant, co-decision-maker, decision-making representative, attorney, designated healthcare representative for the person concerned who is available and is willing to assist during the hearing or there is another person in respect of whom the court is satisfied, is willing and able to assist during the hearing.

Where, on the hearing of an application, the person concerned has not instructed the legal practitioner and no such persons above are appointed to assist, the court may direct the director to appoint a court friend for that person.

Hearings are to be conducted with the least amount of formality consistent with the proper administration of justice. They are to be heard and determined otherwise than in public. Judges and legal practitioners appearing are not to wear wigs or gowns.

The court has powers to make interim applications in relation to applications, where it is of the opinion that it is in the interest of the person to make an order without delay. Such orders are to be limited in time and effect and subject matter as is ordered. The court may renew the order if it considers it in the interest of the person so to do. It may vary or revoke the order of its own motion or pursuant to an application.

Provision is made for legal aid in respect of the principal application. Where a legal aid certificate has been granted to an applicant who is a relevant person who does not satisfy the criteria in respect of financial eligibility specified, the Board may seek to recover some or all of the costs of providing the legal aid to the relevant person concerned. There may be provision for the mechanism for recovery of the costs.

Declarations and Decision

The court may on application above make either or both of the following declarations:

• that the person, the subject of the application lacks capacity unless the assistance of a suitable person as a co-decision-maker is made available, make one or more decisions specified in the declaration relating to his or her personal welfare, property or affairs or both;
• or a declaration that the relevant person lacks capacity even if the assistance of a suitable person as a co-decision maker was made available;

The court may make one or more decisions specified in the declaration relating to his or her personal welfare, property or affairs or both.

Where the first declaration is made above, then unless it is clear to the court that the person does not intend to enter a co-decision-making agreement, it shall allow the person in question such period of time as the court considers necessary to register a co-decision-making agreement.

The court, on an application, may make a declaration as to the lawfulness of an intervention proposed to be made in relation to the relevant person. See the general definition of intervention above. This does not apply to intervention or decision made by the High Court or made pursuant to an order of the High Court.

Where an order is made above in relation to entering a co-decision-making agreement, but no suitable person is available as a representative, no decision-making agreement is entered or registered or the court makes the latter declaration that the person lacks capacity even with the assistance of a co-decision maker, following provisions apply:

The court may make an order making the decision or decisions concerned on behalf of the person where it is satisfied that the matter is urgent or it is otherwise contingent to do so. The court may make an order appointing a suitable person who is aged 18 or more to be a co-decision maker for the purposes of making one or more decisions specified in the order in relation to the person’s welfare, property and affairs or both.

Criteria

In considering applications under the legislation for declarations, orders or reviews, the court shall have all powers necessary to assist it in making a decision. It may direct such reports as it considers necessary to be furnished including medical reports relating to the person, the subject of the application, including cognitive ability reports, reports relating to circumstances including financial reports and valuations, reports from healthcare professionals and other experts.

Where a court makes a declaration under the legislation or gives a direction, the registrar of the court making the declaration or order shall furnish a copy of the declaration or order to the Director of the DSS as soon as practicable.

In making decision-making orders, or decision-making representation orders in relation to personal welfare, the court shall have regard to the terms of any advance healthcare directive made by the person concerned. It shall ensure that the terms of the order are not inconsistent with the directive.

Where a decision-making representative is appointed, it shall ensure that his functions are not inconsistent with the directive or the relevant powers exercisable by a designated healthcare representative under the directive.

The Court shall have regard to the terms of any enduring power of attorney. It shall ensure the order is not inconsistent with it or and that where a decision-making representative is appointed, ensure that his functions are not inconsistent with the functions of an attorney under an enduring power of attorney or that person’s duties and obligations.

The Appointee

In considering the suitability of a person to be a decision-making representative, the court shall have regard to:

• the known will and preferences of the person, willing is subject of the application;
• the desirability of preserving existing family relationships;
• the relationship between the person and the proposed representative:
• the compatibility of the proposed representative and the person;
• whether the proposed representative is able to perform the functions vested;
• any conflict of interest.

Where a court appointed decision-making representative in relation to a person’s property and affairs, it shall have regard to

• the size, nature and complexity of the person’s financial affairs;
• any professional expertise, qualification or experience required to manage the person’s affairs;
• the capability of the proposed representative to manage the relevant person’s concerned property and affairs;
• the financial expertise and support available to the representative.

The court order shall be made subject to such conditions as the court considers appropriate. A decision-making representation order may provide for the giving of security by the representative to court as the court considers appropriate in relation to the proper performance of the representative’s function.

Appointment Issues

Where the court proposes to appoint a decision-making making representative but no suitable person is willing to act, it shall request the Director to nominate two or more persons from a panel established. The court may appoint a person from the nominees.

The court may appoint one or more persons as decision-making representatives and may appoint different persons for different types of decisions.In appointing a representative, the court shall require the representative to sign a statement to the effect that they understand their rights and duties and to act in accordance with the guiding principles.

A decision-making representation order may appoint persons jointly, jointly or severally, jointly in respect of certain types of decisions and jointly and severally in respect of other types of decisions. The court may vary or discharge a decision-making order or decision-making representation order on its own initiative or pursuant to an application by persons entitled above.

The classes of persons who are not suitable for appointment as decision-making representatives are similar to those who are disqualified under voluntary, assisted decision agreements.

Powers and Duties I

The court may appoint one or more persons as decision-making representatives and may appoint different persons for different types of decisions.

In appointing a representative, the court shall require the representative to sign a statement to the effect that they understand their rights and duties and to act in accordance with the guiding principles.

A decision-making representation order may appoint persons jointly, jointly or severally, jointly in respect of certain types of decisions and jointly and severally in respect of other types of decisions.

The court may vary or discharge a decision-making order or decision-making representation order on its own initiative or pursuant to an application by persons entitled above.

The classes of persons who are not suitable for appointment as decision-making representatives are similar to those who are disqualified under voluntary, assisted decision agreements.

Powers and Duties II

In making a decision-making order or decision-making representation order, the court shall make provision in relation to such other matters including the conferral of powers on a decision-making representative, the imposition of duties, the attachment of conditions, the duration of the order. The court is to ensure the powers are as limited in scope and duration as are necessary in the circumstances, having regard to the interest of the person, subject of the order.

In exercising his functions, specified in a decision-making representation order, the decision-making representative is insofar as possible to ascertain the will and preferences of the person concerned on the matter, subject of the relevant decision and assist that person in communicating his will and preferences.

A decision-making representative shall make a decision on behalf of the person concerned and shall act as agent in relation to the decision.