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 or civil partner, 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 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.

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-s
  • 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, 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 as soon as practicable. The director (the director refers to the decision support service defined in the place). Provision is made for legal aid in respect of his court application.

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.

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

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

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.

Reimursement and Remuneration

Except where the court otherwise orders, a decision-making representative is to be entitled to be reimbursed from the assets of the person concerned, what is fair and reasonable expenses which are reasonably incurred in performing his duties as such decision-making representative.

Where the court so directs, he shall be entitled to reasonable remuneration for the performance of his functions, carried out in connection with a trade or profession or other exceptional circumstances. The remuneration is to be paid from the assets of the person concerned.

If the decision-making representative is empowered by the relevant order, to make gifts, then without specific approval of the court, the gifts are to be limited to gifts made on customary occasions, (e.g. birthdays, weddings etc.) to persons including the decision-making representative who are related or connected to the person and in relation to whom the person might be expected to make gifts, and gifts to any charity which the relevant person made or might reasonably be expected to make. The value of the gifts must be reasonable having regard to the all the circumstances and in particular the extent of its assets and financial obligations.

Management of Property

Notwithstanding that there is a decision-making representative, the court may confer on the director the custody, control and management of some or all of the property of the person concerned if he considers that the director is the most appropriate person to exercise that power. It shall not make such an order unless that is no person who is suitable and willing to act as decision-making representative in relation to the property and affairs of the person, it may require some or all of the property concerned to be lodged in court.

Where the court proposes to make an order above in relation to a person’s property, the director shall consult and have regard to the views of family members of the person concerned and such other persons as the court may direct to be consulted, in relation to the matters concerning the management of the property to which the order relates.

Personal Welfare Decisions

A decision-making representative is not to have power to prohibit a particular person from having contact with the person concerned. He is not to have powers to make decisions other than those specified in the order. He shall not without the express approval of the court, exercise powers in relation to any settlement of property, whether for the person’s benefit or the benefit of others or exercise powers vested in the person whether beneficiary or as trustee or otherwise.

Subject to the terms of an advance healthcare directive, made by the relevant person and powers exercisable by any designated health-care representative appointed under the directive, the decision-making representative shall not refuse consent to carrying out or the continuation of life sustaining treatment or consent to the withdrawal of such treatment.

Restraint

The representative shall not do an act that is intended to restrain the person unless there are exceptional emergency circumstances and the person lacks capacity in relation to the matter concerned or the representative reasonably believes he lacks capacity, the representative reasonably believes that it is necessary to do so to prevent imminent risk of serious harm to the relevant person or another. And the act is a proportionate response to the likelihood of the harm referred to and the seriousness of the harm.

A decision making representative restraints the person, if he uses or indicates an intention to use force, to secure the doing of an act which the person resists, intentionally restricts the person’s liberty of voluntary movement or behaviour, whether or not the relevant person resists or administers a medication which is not necessary for a medically identified condition with the intention of controlling or modifying the relevant person’s behaviour or ensuring that he is compliant or not capable of resistance or authorises another to do any of the above.

Any restraint imposed is to be ceased once no longer necessary to prevent imminent risk of serious harm to the relevant person or another.

Administrative

The director is to maintain a register of decision making representation order. It is to be available for inspection by such persons, are prescribed by regulations for that purpose and to satisfy the director that they have a legitimate interest in inspecting the register. Authenticated copies of entries in the register may be issued.

Decision-making representatives shall make annual reports in writing to the director as to the performance of their functions. The court may direct that reports be made at shorter intervals. The reports are to be in the form prescribed by the director and to include details of transactions entered relating to the person’s finance, details of costs, expenses and remuneration claimed during the period.

Where the order authorises the representative to make decisions in relation to the relevant person’s property or affairs, he shall within three months of appointment, submit a schedule of the person’s assets and liabilities to the director and a projected statement of the person’s income and expenditure.

The decision making representative shall keep proper accounts and financial records in respect of the person’s income and expenditure, which shall be submitted to the director and made available for inspection by any special visitor at any reasonable time.

Where the representative fails to comply with these requirements, the director may following inquiries and satisfactory responses in relation to matters, satisfy himself that the report is substantially compliant or make an application to the court for a determination as to whether the decision-making representative shall continue as such. The court may determine that a person who has not complied with these obligations shall cease to be a representative.

A decision-making representative shall keep proper accounts and financial records in respect of the relevant person’s income, expenditure. He shall submit the accounts and records as part of the report to the director annually. He shall make them available for inspection by the director or special visitor.

Complaints

A person may make a complaint to the director that the decision making representative is acting or proposes to act outside his functions under the order or that a decision making representative is not suitable having regard to:

the known will and preferences of the relevant person, the desirability of preserving existing relationships, compatibility, ability to perform functions or conflict of interest, to continue or to be a decision making representative.

The director shall investigate the complaint. If he is of the view that it is well-founded, he shall make an order for determination in relation to the matter specified. Where he decides the complaint is not well-founded, he shall give the complainant reasons. The complainant may appeal the decision of the refusal to court.

The complainant may of his own initiative carry out investigations and make applications to the court in relation to matters above.

The court may make such determinations pursuant to an application of the director or an appeal by the complainant, determine that the decision making representative shall no longer act as such in relation to the relevant person concerned.

Review

Where a court has made a declaration above, an application for review of the declaration may be made at any time by the relevant person or with the consent of the court by the categories of person who are entitled to apply to the court without prior consent. See above.

Apart from the above, the court in every case shall review a declaration at interval specified by the court when making the declaration, at intervals of at least 12 months, not more than 12 months or not more than three years if the court is satisfied that the person is unlikely to recover capacity. The periods of 12 months or three years as the case may be, run from the date of the last review.

Where having reviewed the capacity of the person, the court is satisfied that the relevant person no longer lacks capacity, make one or more relevant decisions. It shall amend or revoke the declaration as appropriate, give such directions as it thinks appropriate for the order to have full effect. Where the court is satisfied that the person continues to lack capacity, make one or more relevant decisions, it shall continue the order.

 

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