Decision-Making Representative Orders

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Decision-Making Representative Orders

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We regularly represent clients before the Circuit Court and High Court in relation to Decision Making Representative Orders. Our clients are usually family member of persons who have dementia, a brain injury or persona unable to make certain decision due to old age. These decisions usually relate to financial, property and affairs.

Residents in hospital care or nursing homes are some of the most vulnerable in society. Those in residential care range from young adults with mild learning disabilities who need support to live semi-independently all the way to those with the most severe learning and physical disabilities who require 24 hour care. Residents in nursing homes are often elderly with significant health needs or cognitive impairments. The nature of a resident’s age and/or disability often means that they are extremely vulnerable to physical/psychological abuse or neglect.
They are often unable to speak up for themselves or unable to realise (because of their cognitive impairments or learning disabilities) when they are victims of abuse. They may feel unable to report incidents of abuse for fear of reprisals from their abuser. They may be living in a placement where the abuse of residents is seen as normal day-to-day activity and residents assume that it is just something that they have to deal with on their own.

The court may appoint a suitable person to be a decision-making representative for the relevant person, for the purpose of making one or more than one specified decision on behalf of the relevant person in relation to his or her personal welfare, or property and affairs, or both. This is known as a  decision-making representation order.

There are two options available to the court in appointing a DMR: either a suitable person who may already be known to the relevant person4; or where no one suitable is available, a nomination from the Director5.  In the second instance, where the court requests it6, the Director nominates two or more persons from a panel of decision-making representatives established by the Director for that purpose.

In essence, a decision-making representative order allows a DMR to carry out substitute decision-making on behalf of the relevant person. However, there is a crucial difference in the substitute decision-making that is provided for under the Act and what has gone heretofore, where a ‘best interests’ approach was the guiding principle. The Act completely removes considerations of ‘best interests’ from the powers of substitute decision-makers. Instead, a DMR must act according to the will and preferences of the relevant person.

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In making an order, the court will have the guiding principles at s.8 to consider. It requires, inter alia, that an intervention of this kind be made in a manner that minimises the restriction of the relevant person’s rights and freedom of action, that will have due regard to the rights to dignity, bodily integrity, privacy and autonomy of the relevant person, shall be proportionate, and be as limited in duration in so far as is practicable.

 

Consequently, the court has powers to create an order with these principles in mind. S. 38(8) provides that the court may make provision within the order for such matters as it consider appropriate, including the conferral of power on a DMR, the imposition of duties on a DMR, the attachment of conditions to the making of any relevant decision by a DMR or the exercise of any power by a DMR in his capacity as a DMR, and the period of time for which the order is to have effect.

 

Where the order confers powers on a DMR, the court must ensure that the powers are as limited in scope and duration as is necessary in the circumstances, having regard to the interests of the relevant person34.

 

The court must also require the DMR to sign a statement that he or she understands and undertakes to act in accordance with the powers conferred and the duties imposed on him or her by the court, and that he or she understands and undertakes to act in accordance with the guiding principles set out in s.8.

 

An order made by the court may be varied or discharged by the court, whether of its own motion, or pursuant to an application35.

 

The court may also appoint one or more than one person as a DMR, and may so appoint different persons in respect of different relevant decisions36. The order must specify as to whether such persons are to act jointly, jointly and severally or jointly as respects some relevant decisions and jointly and severally as respects other relevant decisions.

Decision-Making Representation – Part 5 of Assisted Decision-Making (Capacity) Act 2015

  1. Court orders

Power of court to make orders

The court1 may make a declaration as to a relevant person’s capacity under s. 37(1) of the Assisted Decision-Making Capacity Act 2015 (“the Act”). A relevant person is defined by s.2 of the Act as:

  • a person whose capacity is in question or may shortly be in question in respect of one or more than one matter,
  • a person who lacks capacity in respect of one or more than one matter, or
  • a person who falls within paragraphs (a) and (b) at the same time but in respect of different matters,

As the case requires.

The court may make one of two types of declarations under s. 37(1):

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

Once a declaration is made, two different scenarios may then arise which require the court to make an order. Firstly, where the court makes a declaration which falls within paragraph (a) of s. 37(1), but there is no suitable person to act as co-decision-maker for the relevant person, or where there is a suitable person, but the relevant co-decision-making agreement is not registered within the period set down by the court (which has discretion to extend time)2. Secondly, where the court makes a declaration which falls within paragraph (b) of s.37(1).

Once either of these scenarios applies, s. 38(2) gives the court power to make orders. Where the court is satisfied that the matter is urgent or that it is otherwise expedient for it to do so, the order may make the decision or decisions concerned on behalf of the relevant person. This is known as a decision-making order.

The court may also, or instead of making a decision-making order, appoint a suitable person to be a decision-making representative for the relevant person, for the purpose of making one or more than one specified decision on behalf of the relevant person in relation to his or her personal welfare, or property and affairs, or both. This is a decision-making representation order.

Criteria to act as a decision-making representative (DMR)

Where the court makes a decision-making representative order made, it appoints a suitable person (see below) who is aged 18 or over, to be a DMR for the relevant person, for the purposes of making one or more than one decision specified in the order. The DMR makes decisions on behalf of the relevant person in relation to his or her personal welfare or property and affairs, or both3.

There are two options available to the court in appointing a DMR: either a suitable person who may already be known to the relevant person4; or where no one suitable is available, a nomination from the Director5. In the second instance, where the court requests it6, the Director nominates two or more persons from a panel of decision-making representatives established by the Director for that purpose7.

In essence, a decision-making representative order allows a DMR to carry out substitute decision-making on behalf of the relevant person8. However, there is a crucial difference in the substitute decision-making that is provided for under the Act and what has gone heretofore, where a ‘best interests’ approach was the guiding principle. The Act completely removes considerations of ‘best interests’ from the powers of substitute decision-makers. Instead, a DMR must act according to the will and preferences of the relevant person9.

Suitability of a decision-making representative

When considering who is a suitable person to act as a DMR for a relevant person, the following must be taken into account by the court10:

  • the known will and preferences of the relevant person;
  • the desirability of preserving existing relationships within the family of the relevant person;
  • the relationship (if any) between the relevant person and the proposed representative;
  • the compatibility of the proposed representative and the relevant person;
  • whether the proposed representative will be able to perform the functions to be vested in him or her;
  • any conflict of interest.

When the Director is creating a panel of DMRs, there are no guidelines in the Act for he or she to follow in creating such a panel. However, the Director must take account of the eligibility and disqualification criteria, which are set out at s. 39 and s.40. Further, s. 42 provides that a DMR may be entitled to reasonable remuneration in relation to the performance of his or her functions which are carried out in connection with his or her trade or profession. It seems, therefore, that the Act envisages DMRs to include professionals.

Performance of functions of DMR

  1. 41(2) sets out clearly that a DMR shall make a relevant decision on behalf of the relevant person and shall act as the agent of the relevant person in relation to a relevant decision.

A relevant decision in relation to a decision made, or to be made, by a DMR, is defined by s.2 as meaning a decision on a matter the subject of the decision-making representation order which appointed that DMR and which falls within the scope of that order.

  1. 41(1) creates the duty that a DMR, in exercising his or her functions as specified in the order, shall – insofar as this is possible – ascertain the will and preferences of the relevant person on a matter the subject of a relevant decision. The DMR must also assist the relevant person with communicating such will and preference.

This underlines and reflects the DMR’s duty under the guiding principles in relation to any intervention in relation to relevant person, which is an action taken under the Act by a DMR, among others11. S.8 provides that the principles apply for the purposes of an intervention in respect of a relevant person, and the intervener shall give effect to those principles accordingly.

The guiding principles set out in detail the ways in which an intervener, e.g. a DMR, must take into account the will and preferences – in so far as is practicable – of the relevant person. This includes permitting, encouraging and facilitating the relevant person to participate as fully as possible in the intervention12. It also includes taking into account the relevant person’s beliefs and values13 and acting at all times in good faith and for the benefit of the relevant person14.

Ineligibility and disqualification

  1. 39 sets out persons who are not eligible to be a DMR. This includes a person who has been convicted of an offence, or has been the subject of a safety or barring order, in relation to the person or property of the proposed appointer, or the person or property of a child of the appointer15. Likewise, a person who has been convicted of an offence under the Act is also not eligible16. A person who is the owner or registered provider of a designated centre or mental health facility in which the proposed appointer resides, or a person residing with or employee or agent of such owner or registered provider, is also not eligible17.

The following persons are eligible in so far as the appointment relates to relevant decisions concerning personal welfare only: an undischarged bankrupt, or a person currently in a debt settlement arrangement or personal insolvency arrangement, or has been convicted of an offence involved fraud or dishonesty; a person in respect of whom a declaration is made by the court restricting a director of an insolvent company becoming a director, pursuant to s. 819 of the Companies Act 2014, or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act; a person who is subject, or is deemed to be subject to a disqualification order (from being appointed or acting as a director or other officer in any way) within the meaning of Chapter 4 of Part 14 of the Companies Act 201418.

Disqualification of a DMR arises in the following situations:

  1. Where the DMR is the spouse / civil partner / cohabitant of the appointer, and subsequently, the relationship ends, either through formal means (annulment, judicial separation etc) or informal means, i.e. they cease to cohabit for a continuous period of 12 months19;
  1. Where, subsequent to the appointment of a DMR:
  1. The DMR is convicted of an offence in relation to the person or property of the appointer, or the person or property of a child of the appointer20;
  1. A safety or barring order is made against the DMR in relation to the appointer or a child of the appointer21;
  • The DMR becomes an undischarged bankrupt, subject to a current debt settlement arrangement/ personal insolvency arrangement, or convicted of an offence involving fraud or dishonesty22;
  1. The DMR is a person in respect of whom a declaration is made by the court restricting a director of an insolvent company becoming a director, pursuant to s. 819 of the Companies Act 2014, or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act23;
  1. The DMR is a person who is subject, or is deemed to be subject to a disqualification order (from being appointed or acting as a director or other officer in any way) within the meaning of Chapter 4 of Part 14 of the Companies Act 201424;
  1. The DMR becomes an owner or registered provider of a designated centre or mental health facility in which the appointer resides, or resides with, or is an employee or agent of such owner or registered provider25;
  • The DMR is convicted of an offence under s. 34, 80, 90 or 146 of the Act (relating to fraud, coercion, undue influence, ill treatment, wilful neglect)26;
  • The DMR enters into a DMA agreement or a CDM agreement as a relevant person, has an enduring power of attorney registered in respect of himself or herself, or becomes the subject of a declaration under s.37(1)27.

When disqualification occurs, the DMR must notify the Director of such disqualification. If the disqualification is because an enduring power of attorney has been registered in respect of his or her, then the attorney must inform the Director; if the disqualification is because the DMR has become the subject of a declaration by the court in relation to his or her capacity, then the court – or his or her DMR, should one be appointed by the court – must notify the Director28.

Once a DMR becomes disqualified, a relevant decision made solely by him or her after his or her disqualification shall be null and void. This may have implications for the DMR as regards liability, as set out below.

Considerations by the court

There are a number of issues that the court must have regard to when creating an order. Firstly, if the order relates to personal welfare and if an advance healthcare directive was made by the relevant person, the court must ensure that the terms of the order are not inconsistent with the directive, and where a DMR is appointed, ensure that the his or her functions are not inconsistent with the directive or the relevant powers exercisable by any designated healthcare representative under the directive29.

The same applies to an enduring power of attorney. A court, in making a decision-making order or decision-making representation order, must have regard to the terms of any enduring power of attorney made by the relevant person30, or enduring power under the Act of 199631 made by him or her32. The court must ensure that the terms of the order are not inconsistent with the terms of the enduring power of attorney and where a DMR is appointed, ensure that his or her functions are not inconsistent with the functions of an attorney, or the duties and obligations of an attorney under the Act of 1996.

Where the court appoints a DMR to make decisions on the relevant person’s property and affairs, it shall have regard to the size, nature and complexity of the relevant person’s financial affairs, any professional expertise, qualification or experience required to manage the relevant person’s financial affairs, the capability of the proposed DMR to manage same, and the financial expertise and support available to the proposed DMR33

Scope of order

In making an order, the court will have the guiding principles at s.8 to consider. It requires, inter alia, that an intervention of this kind be made in a manner that minimises the restriction of the relevant person’s rights and freedom of action, that will have due regard to the rights to dignity, bodily integrity, privacy and autonomy of the relevant person, shall be proportionate, and be as limited in duration in so far as is practicable.

Consequently, the court has powers to create an order with these principles in mind. S. 38(8) provides that the court may make provision within the order for such matters as it consider appropriate, including the conferral of power on a DMR, the imposition of duties on a DMR, the attachment of conditions to the making of any relevant decision by a DMR or the exercise of any power by a DMR in his capacity as a DMR, and the period of time for which the order is to have effect.

Where the order confers powers on a DMR, the court must ensure that the powers are as limited in scope and duration as is necessary in the circumstances, having regard to the interests of the relevant person34.

The court must also require the DMR to sign a statement that he or she understands and undertakes to act in accordance with the powers conferred and the duties imposed on him or her by the court, and that he or she understands and undertakes to act in accordance with the guiding principles set out in s.8.

An order made by the court may be varied or discharged by the court, whether of its own motion, or pursuant to an application35.

The court may also appoint one or more than one person as a DMR, and may so appoint different persons in respect of different relevant decisions36. The order must specify as to whether such persons are to act jointly, jointly and severally or jointly as respects some relevant decisions and jointly and severally as respects other relevant decisions.

Restrictions

  1. 44 includes the main catch-all restriction in that a DMR for a relevant person shall not have authority to make decisions on behalf of the person, other than those specified in the order37.

Other specific restrictions provided in s.44 include that no order can be made giving a DMR power to prohibit a particular person38 from having contact with the relevant person39.

A DMR shall not refuse consent to the carrying out or continuation of life-sustaining treatment or consent to the withdrawal of life-sustaining treatment for the relevant person. This is subject to the terms of any advance healthcare directive made by the relevant person and subject to relevant powers exercisable by any designated healthcare representative appointed under the directive40.

This provision is in the context of s. 38(3), where a court, in making a decision-making order or decision-making representation order in relation to a relevant person’s personal welfare, must have regard to the terms of any advance healthcare directive made by the person. The same applies to an enduring power of attorney. (See above in Considerations by the court)

Restraint

A DMR must not do an act that is intended to restrain the relevant person – including chemical restraint – unless there are exceptional emergency circumstances and the DMR reasonably believes that it is necessary to do the act in order to prevent the imminent risk of serious harm to the relevant person or to another person41

Any act that the DMR takes must be a proportionate response to the likelihood of the harm, and to the seriousness of such harm42, and the DMR must cease the restraint immediately upon the restraint no longer being necessary to prevent an imminent risk of serious harm to the relevant person or to another person43.

Even in those circumstances, the DMR may not act unless the relevant person lacks capacity in relation to the matter in question or the DMR reasonably believes that the relevant person lacks such capacity.

A DMR restrains the relevant person if he or she:

  • Uses – or indicates an intention to use – force to secure the doing of an act which the relevant person resists;
  • Intentionally restricts the relevant person’s liberty of voluntary movement or behaviour, whether or not the relevant person resists
  • 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 or she is compliant or not capable of resistance.
  • Authorises another person to do any of the things listed.

The provisions in the Act cannot be construed to prejudice the generality of s. 69 of the Mental Health act 2001, or rules made under that section44. S. 69 deals with the circumstances wherein there may occur the lawful use of bodily restraint and seclusion of a patient.

Where a DMR has restrained the relevant person at any time during the relevant period, the DMR’s annual report to the Director must include details of such restraint, the date on which it occurred and the place where it occurred45. (See more on Reports below.)

Restrictions in relation to property and affairs functions

There is always concern over the exploitation of vulnerable adults in relation to assets. While the Director has extensive supervisory and investigative powers, there are also provisions which allow the court to ensure compliance by the DMR in relation to his or her functions regarding property and affairs. Under s. 43(6), the court may order for the giving of security by the DMR to the court as the court considers appropriate46.

Further, there are specific restrictions under s. 44(3), where the DMR is not allowed to act without the express approval of the court. Firstly, a DMR shall not exercise any powers in relation to the settlement of any part of the property of the relevant person, whether for the relevant person’s benefit or for the benefit of others. Secondly, he or she may not exercise any power (including the power to consent) vested in the relevant person, whether beneficially or as trustee or otherwise.

Gifts

Gifts are specifically disallowed under co-decision-making agreements, but there are circumstances where they are allowed under a decision-making representation order.

There must be specific provision in the order for disposing property by way of gift47, but even then there are restrictions. Firstly, any gift-making is subject to restrictions under s.44 (in particular, see s.44(3) above).

The DMR may only make such gifts that are made on customary occasions to persons who are related or connected to the relevant person and in relation to whom the relevant person might be expected to make gifts. This includes the DMR themselves48.

The DMR may also make gifts to any charity to which the relevant person made or might reasonably be expected to make gifts49. Any gifts outside of these categories can only be made with specific approval of the court50.

The final proviso in relation to gifts is that the value of the gift must be reasonable having regard to all the circumstances and in particular the extent of the relevant person’s assets and financial obligations51.

Director

Where there is no person who is suitable and willing to act as DMR in relation to a relevant person’s property and affairs52, and even where the relevant person has a DMR in respect of other decisions, the court may confer on the Director the custody, control and management of some or all of the property of the relevant person53.

The court must consider that the Director is the most appropriate person to exercise that power in respect of that property. In coming to such a decision, the court must consult with and have regard to the views of one or more than one of the relevant person’s family, and such other persons as the court may direct be consulted54.

Where the court makes such an order, it may also require that some or all of the property of the relevant person which is money to be lodged into court55, and make the order subject to such conditions as it considers appropriate56.

Expenses and remuneration

A DMR shall be entitled to be reimbursed out of the assets of the relevant person in respect of the DMR’s fair and reasonable expenses which are reasonably incurred in performing his or her functions as DMR. This is except where the court orders otherwise57.

Unlike a decision-making assistant or a co-decision-maker, the role of a DMR is envisaged as being, potentially, a professional one. A DMR may be entitled to reasonable remuneration, but only where the court directs it in the decision-making representation order. The remuneration must be in relation to the DMR’s functions as a DMR and are carried out in connection with his or her trade or profession, or in other exceptional circumstances specified in the order. Any remuneration must be paid from the assets of the relevant person58.

Liability

A DMR acts as the agent of the relevant person in relation to a relevant decision, and so the law of agency59 applies. Once the DMR is making decisions within the scope of his or her authority – i.e. in relation to decisions set out in the order – and once the relationship of agency and the identity of the principal have been disclosed, he or she will not be liable for decisions so made.

A DMR who makes decisions outside of his or her authority could be liable in relation to any third party who relies on that decision and incurs any loss as a result of that reliance. If a DMR is concerned that he or she may be making decisions outside of his or her authority, he or she would be advised to apply to court for clarification.

A DMR could also find themselves party to a cause in action in particular circumstances: if the DMR is disqualified (situations that give rise to disqualification are set out below) and he or she makes a decision on behalf of the relevant person subsequent to disqualification, although the decision is deemed null and void by the Act, that shall not operate to prevent a person who relied on that decision from recovering damages in respect of any loss incurred as a result of that reliance60.

A DMR who ill-treats or wilfully neglects the relevant person shall be guilty of an offence and liable to a class A fine and imprisonment for a term not exceeding 12 months, or both (on summary conviction), or to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both (on conviction on indictment).

  1. Supervision by the Director of the Decision Support Service

Register of Decision-Making Representation Orders

The supervision of the Director in relation to DMRs is administered through a register of decision-making representation orders. The Director is required to establish and maintain this register61.

Where the court makes an order – or a determination, in the case of an issue arising from a decision-making order or decision-making representative order (see below) – the registrar of the court shall in each case furnish a copy of the order to the Director as soon as is practicable after the order is made62.

The Director must make the Register available for inspection by – and may also issue an authenticated copy of an order to63 – a body or class of persons prescribed by Ministerial Regulations, and also any person who satisfies the Director that he or she has a legitimate interest in inspecting the Register64.

Reports

Reports by the DMR to the Director are envisaged to be filed on an annual basis65, but the court may direct that they be filed at shorter intervals66. Plus, within 3 months of appointment, the DMR must make a submission.

Where a decision-making representation order authorises a DMR to make decisions in relation to a relevant person’s property and affairs, the DMR must submit to the Director a schedule of the relevant person’s assets and liabilities and a projected statement of the relevant person’s income and expenditure. This must be done within 3 months of appointment67.

Every 12 months68 after appointment, a DMR must file a report to the Director69. The annual report sets out the performance of his or her functions over the relevant period70. The form of such reports will be prescribed by Ministerial Regulations and must include details of all transactions relating to the relevant person’s finances which are within the scope of the court order.

Where the DMR is authorised to make decisions in relation to the relevant person’s property and affairs, the DMR must keep proper accounts and financial records in respect of the relevant person’s income and expenditure, and must submit these accounts and records as part of the annual report71. These must also be available for inspection by the Director, or by a special visitor72, at any reasonable time73.

The annual report must also include all costs, expenses and remuneration claimed by or paid to the DMR during the relevant period.74 Where a DMR has restrained the relevant person at any time during the relevant period, the annual report must include details of such restraint, the date on which it occurred and the place where it occurred75.

Where a DMR fails to submit a report, or fails to submit financial statements, accounts and records, or submits an incomplete report, the Director must notify the DMR and give him or her a period of time to comply or submit a complete report76. If the DMR fails to so within the stated period of time, the Director must make an application to the court for a determination as to whether the DMR should continue as DMR for the relevant person77.

The only exception to this is where the DMR submitted an incomplete report and the Director is satisfied that the report is substantially in accordance with the provisions, in which case the Director may accept the report as if it were in compliance78.

Complaints

Any person may make a complaint in writing to the Director concerning a DMR. The issues complained of must come within two areas, where the DMR has acted or is acting, or is proposing to act outside the scope of his or her functions as specified in the order, and/or that a DMR is not suitable79 to be a DMR80.

Once a complaint comes within those issues, the Director must investigate it. Where he or she is of the view that the complaint is well founded, he or she must apply to the court for a determination in relation to a matter specified in the complaint81.

Where the Director is of the view that the complaint is not well founded, he or she must notify the complainant and provide reasons for same82. The complainant may appeal the Director’s decision to the court within 21 days after the date of issue of the notification.83

The Director has powers to carry out an investigation, even where no complaint has been received, and make an application to court for a determination in relation to any of the issues that would be the substance of a valid complaint84.

When the Director applies to the court following a complaint, or on his or her own initiative, or where the Director’s decision is appealed, the court may make a determination and may, if it considers it appropriate that a DMR shall no longer act as such in relation to the relevant person concerned.

Safeguards

Article 12 UNCRPD provides States parties shall ensure that all measures that relegate to the exercise of legal capacity provided for appropriate and effective safeguards to prevent abuses in accordance with international human rights law Such safeguards shall ensure that measures relegating to the exercise of legal capacity respect the rights, will and preference sof the person, are free of conflict of interest and undue influence…

It is evident from the provisions of the act that there is a heave emphasis in the legislation on safeguards which induce court oversight , review and reporting requirements. The legislation also sets out in details provsions setting out categories of people who are either ineligible or are disqualifies for acting to either support or assist a relevant person. The detailed implementation of these provisions will be extremely important as it is evident that abuse particularly of older people is prevalent and increasing. The issue in respect of many people who have capacity but who find themselves in vulnerable situations , is how to prevent abuse , reduce conflicts of interest and undue influence.

Please contact Stephen by email stephen@swco.ie or by phone 045881193  if you would like assistance, advice or representation in relation to any issues regarding the Assisted Decision Making Capacity Act.