Introduction / Summary
Where there are concerns about a person’s decision-making capacity, a concerned person may apply to the Circuit Court for the appointment of a Decision-Making Representative (DMR). The concerned person may, in certain circumstances, need to get the consent of the Circuit Court before making the application. Such consent is obtained by completing Form 55G, paying a fee of €60, swearing a grounding affidavit (which must exhibit the draft Capacity Application (Form 55A) and draft Statement of Particulars (Form 55B) intended to be filed if consent is given), and then applying ex parte to the Circuit Court having jurisdiction over the relevant person.
Making a Capacity Application involves completing Forms 55A (Capacity Application), 55B (Statement of Particulars), and 55I (Grounding Affidavit). The Grounding Affidavit needs to exhibit a Capacity Report (a report from a medical practitioner or other healthcare professional on the capacity of the relevant person) and also to exhibit any document referenced in the Statement of Particulars, any Orders made under the Act in relation to the relevant person, and any other decision-support arrangements made by the relevant person.
The documentation needs to be filed in the relevant Court Office and copies of the documentation must then be served on the relevant person (personal service) and on any notice parties (registered post). The person serving the application on the relevant person must also explain that the relevant person is permitted and encouraged to participate in and will be facilitated in participating in the hearing of the Capacity Application. They must also record any response by the relevant person.
An Affidavit of Service (Form 55D) should be prepared and will (presumably) contain averments as to the response of the relevant person when served with the documentation.
Why would a Capacity Application be made?
If there is a concern that a person is unable to make certain decisions which need to be made, even with the support of a decision-making assistant, or a co-decision-maker, and that person has not previously made an enduring power of attorney or an advance healthcare directive for those particular decisions, then a decision-making representative may need to be appointed to make those decisions on behalf of the person concerned.
When would a Capacity Application be made?
This is an action of last resort. It may be necessary from time to time to ensure that the person’s will and preferences are respected and that their property and affairs are preserved for their benefit.
An application to court may be made when the applicant believes that a person no longer has the capacity to make decisions within an existing decision support arrangement.
An application to court may be made when a person suddenly and unexpectedly loses capacity to make decisions about certain matters, for example, as a result of an accident or injury and has not put an enduring power of attorney or advance healthcare directive in place.
An application to the court could also be needed if the person who was providing support is no longer willing or able to continue providing such support for any reason, including illness or death, and the person is not able to make certain decisions without support. Where no other person is willing or able to provide support, an application may need to be made to court.
Who Can Apply?
The ADMC Act sets out a list of people 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.
These are:
- The relevant person
- The Director of the Decision Support Service
- The person’s spouse, civil partner or co-habitant
- The person’s adult child
- An existing decision supporter for the relevant person
- A person specified in an existing court order under Part 5 of the Act, where the application relates to that order
If the application relates to the relevant person’s capacity to make a decision to consent to being married or being in a civil partnership:
- A registrar of births, stillbirths, deaths and marriages
- The other party to the proposed marriage or civil partnership
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.
The Act says that any other adult with a genuine interest in the welfare of the person can make an application to court, but they must get the permission of the court first.
An application for the consent of the court to the making of a Capacity Application can be made by way of an ex-parte notice of motion (Form 55G). See “How to make an application” below for further information.
How to apply for the consent of the court to make a Capacity Application.
If you are not one of the people listed in the Act who can make these applications without the consent of the court (see “Who Can Apply?” above) then you must first apply to the Circuit Court for consent to bring a Capacity Application.
An application for consent is made by an ex-parte motion (Form 55G) called an Ex Parte Consent Application.
To make the Consent Application, the applicant needs to complete the necessary paperwork and submit it to the court office. Court fees must be paid on the Application before it can be issued by the office. As of 27 April 2023 the fee is €60.00. The application is made to the Circuit Court having jurisdiction over the matter. (See this page on jurisdiction).
The applicant needs to provide:
- An Ex Parte Consent Application (Form 55G)
- A grounding affidavit. This must include details of any existing decision support arrangements and provide information as to why the application cannot be made by one of the persons who do not need the consent of the court to make an application.
- The grounding affidavit must exhibit the Capacity Application (Form 55A) and Statement of Particulars (Form 55B) intended to be filed if consent is given.
As the Consent Application is made ex parte, you do not need to notify anyone that you are making the application. The Court can adjourn the matter however and direct that you notify certain people.
Making a Capacity Application / Applying for a Decision-Making Representation Order (DMRO)
To make the Capacity Application, the applicant needs to complete the necessary paperwork and submit it to the Circuit Court office having jurisdiction over the matter. (See this page on jurisdiction).
Paperwork
Completed and signed Form 55A – Capacity Application (plus fee of €130) containing:
- The name of the Circuit and County and you are applying in e.g., Eastern Circuit, Kildare;
- Details of the Relevant Person and the applicant(s);
- Details of the Orders being sought;
- Name and address of any person (Notice Party) who must be notified of the application.
Completed and signed Form 55B – Statement of Particulars (no fee) containing:
- Who is making the application and their connection to the relevant person;
- The reason for the application;
- The benefit to the relevant person in making the application;
- An explanation as to why less intrusive options (for example a lower tier of support) cannot be taken;
- Details of any relevant support agreements, instrument or court orders affecting the relevant person;
- Details of the relevant persons past and present will and preference in relation to the decisions concerned;
- Details of any particular needs the relevant person may have in relation to the decisions concerned;
- Where the decision concerned relates to the relevant persons property and affairs – details of their assets, liabilities, income and expenditure;
- Details of any proposed co-decision-maker or decision-making representative.
Completed Form 55I – Grounding Affidavit (plus fee of €15) exhibiting:
- Any document referred to the Statement of Particulars;
- Copies of other orders under the Act in relation to the relevant person;
- Copies or details of other decision-support arrangements made by the relevant person;
- A Capacity Report – (a report from a medical practitioner or other healthcare professional on the capacity of the relevant person);
- Copies of other relevant correspondence and documents relevant to the application.
The applicant should send in the original documents to the court office along with some copies. The originals will be kept on file by the court office. The court office will fill in the record number and date and time of the court hearing on the forms and will return the copies to you to be served on the relevant person and any notice parties.
Serve the Capacity Application
The applicant should keep a copy of the Capacity Application for their own records. They must also send a copy of the application to the relevant person and any notice parties. The Relevant Person and each notice party must be served copies of the completed Form 55A, Form 55B, Form 55I and any exhibits at least 21 days before the hearing date assigned by the court office. This process is called serving.
The documents must be served personally on the Relevant Person. This means handing the documents to the Relevant Person and explaining the application to him/her. The Relevant Person must also be served with a blank Form 55C. This is a form which the Relevant Person can fill in if they want to reply to the application.
The person serving the application on the relevant person must also explain that the relevant person is permitted and encouraged to participate in and will be facilitated in participating in the hearing of the Capacity Application. They must also record any response by the relevant person.
Other notice parties can be served by registered post.
Each of the below must be served with copies of the application:
a) the spouse or civil partner of the relevant person;
b) the cohabitant of the relevant person;
c) a child of the relevant person who is aged of 18 years or more;
d) any existing decision supporter appointed by or on behalf of the relevant person;
Where the relevant person in his or her reply does not consent to the Capacity Application, the applicant must also serve a copy of that reply on each notice party.
The court will ask for proof that the documents have been served. This is called an Affidavit of Service. The person who served the documents (in most cases the applicant) must sign the affidavits in person in front of a solicitor or Commissioner for Oaths to swear that the information given is correct. There is a specific form the must be used to verify that the relevant person was served – Form 55D
Return documents to court office
After serving, you must file the following documents in the court office at least four days before the hearing date of the Capacity Application:
- Form 55D – Affidavit of service on the relevant person
- Affidavits of service of the Capacity Application on the other notice parties
- An indexed booklet containing copies of:
- The completed Capacity Application (Form 55A);
- The completed Statement of Particulars (Form 55B), grounding affidavit and any exhibits;
- Every medical or other report prepared for the purpose of the application or intended to be relied upon in the application;
- Any other affidavit relied upon by the applicant;
- Any affidavit or response delivered by or on behalf of any person served with the application;
- Every affidavit of service;
- Any other document to be relied upon at the hearing of the Capacity Application.
Last Updated: 27 April 2023