Representative Issues

Reimbursement 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, fair and reasonable expenses which are reasonably incurred in performing his duties as such decision-making representative. Such expenses  may be approved by the Director or otherwise provided for by way of regulations made by the Minister after consultation with the Director and with the consent of the Minister for Public Expenditure and Reform.

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 court appoints a representative but makes no order in relation to remuneration or directs that the representative shall not be entitled to be reimbursed from the person’s assets, or  where such assets are insufficient, the director may reimburse the fair and reasonable expenses or pay such reasonable remuneration in relation to the performance of duties  in relation to the business of that person. The remuneration shall be calculated in accordance with a methodology and limits set and shall be subject to such conditions. as shall be prescribed by regulations made by the Minister. They may also allow for reimbursement in advance of the excess of the limits.

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 orders. 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 and are evidence of their content.

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,
• ability to perform functions or
• conflict of interest, to continue or to be a decision making representative.

The Director shall, investigate a complaint uunless in his or her opinion there has been undue delay in making the complaint. A decision by the Director not to investigate a complaint—

•  shall be in writing, shall contain the reasons for the decision and shall be sent to the complainant as soon as possible after it is made, and
• may be appealed by the complainant to the court not later than 3 months after the date of receipt by the complainant of the decision.]

Process

The Director shall investigate the complaint. This shall be done in three months which may be extended to 6 months having given notice.  If he is of the view that it is well-founded, he shall make an application to court for determination of  the matter specified.

Alternatively he may seek clarification or seek to engage in alternative methods of resolution. These may resolve the matter.

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 intervals specified by the court when making the declaration, at intervals of  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.

Expert Reports

In considering any application  for a declaration, order or review, the court shall have all such powers as are necessary to assist it in making a decision. On the main applicaiton, the court may direct that such reports as the court considers necessary be furnished to it, including—

• medical reports relating to the relevant person the subject of the application
• reports relating to the circumstances of the relevant person (including financial reports and valuations of property in which the relevant person has an interest), and
• reports from healthcare professionals, or other relevant experts, relating to the relevant person.