Court Rules of Ireland

ORDER 67A

ASSISTED DECISION-MAKING (CAPACITY) ACT 2015

I. Preliminary

Definitions

1.(1) In this Order:-

the “Act” means the Assisted Decision-Making (Capacity) Act 2015;

unless the context otherwise requires, each of the expressions defined in sections 2(1), 82, 104 and 109 of the Act has the same meaning when used in this Order as in the section concerned.

(2) In the event that any conflict shall arise between the provision of any rule of this Order and any other provision of these Rules, the provision of the rule of this Order shall prevail in respect of any proceedings under the Act.

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Title of proceedings

2.(1) Every originating document in proceedings under the Act shall be entitled

“THE HIGH COURT CAPACITY

and in the matter of the relevant person or person to whom the application relates.

(2) The originating document or notice of motion in proceedings under the Act shall in every case show on its face the provision of the Act under which the application is made and the name of every moving party.

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II. Applications under Part 6 of the Act

Application for Discharge from Wardship

3.(1) Every application under section 54(1) of the Act to the Court for a declaration under section 55 of the Act in respect of a ward shall be commenced by notice of motion and supported by such affidavit or affidavits and other documents as are for the time being specified by practice direction.

(2) The application shall include the record number of the wardship proceedings and, where a declaration is sought under section 55(1)(b)(ii) of the Act, shall specify each relief sought in the proceedings under Part 5 of the Act, including any reliefs sought contingently upon a declaration being made.

(3) An application initiated by a person to whom section 54(1)(c) of the Act applies shall additionally include as a relief the consent of the Court to the making of the application by that person.

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Service of Application

4.(1) Service of an application on a ward shall be effected by personal service by delivering to and leaving with the ward true copies of the application and any documents to be served therewith. The person effecting service shall, at the same time, insofar as is practicable having regard to the ward’s communication skills, abilities and needs:

(a) explain the nature and implications of the application, and

(b) explain that the ward is permitted and encouraged to participate, and will be facilitated, in participating in the hearing of the application, and

(c) record any response by the ward.

(2) The applicant shall notify the Registrar of Wards of Court of any special arrangements that may be required to facilitate the ward’s participation in the hearing of the application to discharge from wardship.

(3) The provisions of these Rules as to substituted service shall not apply in the case of a ward unless the Judge otherwise directs.

(4) Save as otherwise directed or permitted by the Court, service on a ward or on a relevant person of any other application or document in proceedings under the Act shall be effected in accordance with sub-rule (1) and an affidavit of service on a ward or on a relevant person may be in the Form No 20 in Appendix K.

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Reviews under sections 54(2) and 54(3) of the Act

5.(1) The Court shall cause every wardship matter to which section 54(2) of the Act applies (other than a wardship matter in which an application has been initiated under section 54(1) of the Act), to be listed before the Court not later than six months before the expiry of the period of three years mentioned in section 54(2) of the Act.

(2) The Court may at any time give such directions as the Court considers necessary to enable it to make a decision under section 55 of the Act.

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III. Hearing of applications under Part 6 of the Act

Powers of Court hearing Application for Discharge from Wardship

6.(1) On the return date of an application for discharge from wardship or on any adjournment from such date, the Court may proceed to hear and determine the application concerned. Where it considers it necessary to do so, the Court may give further directions and make such orders for the further conduct of the application as appear convenient for the determination of the matter in a manner which has regard to the guiding principles set out in section 8 of the Act and is otherwise just, expeditious and likely to minimise the costs of the proceedings.

(2) Every statement signed in accordance with section 38(11) of the Act shall be filed with the Registrar of Wards of Court.

(3) Where the Court has made a declaration under section 55(1)(b)(i) of the Act in relation to a ward, it may, without limitation of the Court’s power of adjournment, adjourn the proceedings and direct the filing prior to the adjourned date of an affidavit:

(a) exhibiting a signed copy of the co-decision-making agreement made by the ward;

(b) verifying registration of the co-decision-making agreement or, as the case may be, confirming that the signed co-decision-making agreement complies with the requirements set out in Part 4 of the Act for the purposes of registration;

(c) where it has not been possible to have a co-decision-making agreement signed and/or registered, setting out the efforts made to identify a suitable co-decision maker and explaining why it was not possible to obtain a suitable person to act in that capacity;

(d) setting out any material change in circumstances which has arisen since the matter was most recently before the Court, or confirming that there has been no such change.

(4) Where the Court makes a decision-making representation order in circumstances where section 55(4) of the Act applies, it may direct the giving of notice to the Registrar of Wards of Court of the registration of any co-decision- making agreement in relation to the relevant person.

(5) Where the Court makes an order under section 55A(1) of the Act, that the capacity of the person the subject of the declaration be reviewed by the Circuit Court, it may make such consequential orders as it considers necessary to facilitate such review, which may, without limitation, include an order transferring the matter of the review to the Circuit Court for the appropriate county having regard to section 4(1) of the Act.

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IV. Originating applications under the Act other than Part 6 or Part 10: general

Other originating applications under the Act

7.(1) Every originating application to the Court under the Act, other than an application under Part 6 or Part 10 of the Act, shall be commenced by originating notice of motion, in the Form No 21 in Appendix K.

(2) The originating notice of motion shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall:

(a) set out the grounds of the application and the material facts supporting such grounds;

(b) confirm the existence of, and exhibit copies of any relevant assisted decision-making agreement, co-decision-making agreement, advance healthcare directive, enduring power of attorney or enduring power under the 1996 Act (including any variation of same) made by the person who is the subject of the application, or any order under Part 5 of the Act concerning that person;

(c) comply with the requirements of the Act and this Order.

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Service of applications

8.(1) Unless the Court orders otherwise, or such person is himself or herself the applicant, the applicant shall serve copies of the originating notice of motion, grounding affidavit and any exhibits:

(a) on the person who is the subject of the application and on any other person required in the circumstances to be served in accordance with Order 15, rule 17;

(b) on any other person required by the Act to be served with the application concerned, and

(c) on any other person directed by the Court to be served with the application concerned,

by serving a copy of the originating notice of motion, grounding affidavit (and any exhibits), in the manner permitted by law for service of a summons, on each such person not later than 14 days before the return date.

(2) Any person served with an application shall be at liberty to file and serve an affidavit replying to the application. Where all or any part of the application is opposed, the replying affidavit shall specify the part or parts of the application which are not opposed and those which are opposed and shall set out concisely the grounds of any opposition to the application and verify any facts relied on. A copy of such affidavit (and any exhibits thereto) shall be served on the applicant and on every other person served with the application not later than seven days before the return date.

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Powers of Court hearing application

9. On the return date of an application under the Act (other than an application to discharge a person from wardship) or on any adjournment from such date, the Court may, if it does not hear and determine the application concerned on that date, and where it considers it necessary to do so, give such directions and make such orders for the further conduct of the application as appear convenient for the determination of the matter in a manner which has regard to the guiding principles set out in section 8 of the Act, where they are applicable, and is otherwise just, expeditious and likely to minimise the costs of the proceedings.

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V. Applications concerning advance healthcare directives (Part 8 of the Act)

Documents to be produced in applications concerning advance healthcare directives

10.(1) In any proceedings concerning an advance healthcare directive, under Part 8 of the Act, including, without limitation, applications under section 89(2) of the Act, the original or a true copy of the instrument creating the advance healthcare directive shall, if available, be exhibited to the grounding affidavit.

(2) If the instrument is not exhibited in accordance with sub-rule (1), –

(a) the grounding affidavit shall explain why the instrument was not produced, and

(b) any respondent or notice party filing an affidavit shall, if the instrument is available to him or her, exhibit same.

(3) In any application to the Court under Part 8 of the Act, the grounding affidavit shall additionally, in accordance with section 92(4) of the Act, state-

(a) the applicant’s connection with the directive-maker,

(b) the benefit to the directive-maker sought to be achieved by the application, and

(c) the reasons why the application is being made, in particular—

(i) the reason why the benefit to the directive-maker sought to be achieved has failed to be achieved in any other appropriate and practicable manner taken prior to the making of the application, and

(ii) the reason why, in the opinion of the applicant, no other appropriate and practicable manner to achieve that benefit remains to be taken prior to the making of the application;

and shall set out the grounds supporting such reasons and verify the material facts relied on as establishing such reasons.

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Application for consent

11.(1) An application under section 92(2) of the Act for the consent of the Court to the making of an application under Part 8 of the Act shall be made by motion ex parte grounded on an affidavit of the applicant. The grounding affidavit, in addition to complying with the requirements of this Order, shall:

(a) provide any information within the deponent’s knowledge as to why the application under Part 8 of the Act concerning the relevant person concerned has not been made, or cannot be made, by a person mentioned in section 92(3) of the Act, and

(b) exhibit drafts of the originating notice of motion or notice of motion and affidavit grounding the application intended to be made under Part 8 of the Act.

(2) The Court may adjourn any such application and may direct that it be made on notice to a person mentioned in section 92(3) of the Act identified in the Court’s direction.

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VI. Requirements for particular proceedings under the Act: proceedings under the Convention for the International Protection of Adults (Part 11 of the Act)

Applications in proceedings to which the Convention for the International Protection of Adults applies

12.(1) In any proceedings in which relief is sought from the Court in exercise of its functions as a judicial authority under the Convention for the International Protection of Adults, as conferred by Chapter 2 of Part 11 of the Act, the originating notice of motion or notice of motion shall specify the precise reliefs sought by reference to the Convention.

(2) In any proceedings to which sub-rule (1) applies, the grounding affidavit shall state the basis upon which the Court is alleged to have jurisdiction, and shall confirm whether any orders have been made under the Act, or any proceedings are pending before the Court or the Circuit Court under the Act, in respect of the person or measure to whom the application relates.

(3) In:

(a) any proceedings in which measures of a temporary character are sought in accordance with Article 11(1) of the Convention;

(b) any proceedings for a declaration of recognition under section 125 of the Act, or

(c) any proceedings for a declaration of enforceability under section 127 of the Act,

the grounding affidavit shall

(i) identify the Contracting State in which measures have been taken and exhibit a copy of any such measure if in writing and a certified translation thereof into Irish or English;

(ii) where relevant, provide information on the nature of the measures taken by reference to section 112 of the Act.

(4) Any application to the Court to exercise jurisdiction under Part 11 of the Act in accordance with section 120 of the Act to disapply or modify an enduring power of attorney shall be made in accordance with rule 7.

(5) Any direction to the central authority in the State to make any communication in accordance with section 131, section 133 or section 134 of the Act may be notified to the central authority in the State by the transmission by the registrar of the Court to the central authority in the State, by registered post or by such other means including electronic means as are agreed by the registrar with the central authority in the State, of a copy of the Court’s order including any such direction.

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VII. General

Costs

13. The Court may make such order as to costs and expenses of and incidental to proceedings under the Act as shall seem right, including an order measuring the costs.

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Notification in urgent cases

14. The Court may, in any case it considers urgent, direct that notification by electronic mail, telephone or other means, to a person or persons required to be served with a document or given notice, shall be sufficient in the circumstances.

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Remote participation in hearings

15. Where a direction under section 11 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 for the time being directs or authorises the participation by a ward or by any other person in proceedings under the Act by way of remote hearing, there shall be served together with the originating document or motion on the ward or other person concerned details enabling such person’s participation in the hearing by means of electronic communications technology.

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Codes of practice

16. Where any code of practice published in accordance with section 91 or section 103 of the Act is alleged to be relevant to any application to the Court under the Act:

(a) a copy of such code of practice authenticated as provided by the Act shall be produced on the hearing of the application concerned, or

(b) a copy of such code of practice shall be exhibited and verified on affidavit.

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Proceedings heard on affidavit unless otherwise directed

17. Subject to any order or direction of the Court, all proceedings in the Court under the Act shall be heard and determined on affidavit.

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VIII. Review of detention (Part 10 of the Act) and applications referred to in section 4(5) of the Act

Review under section 107 or section 108

18.(1) Any application to the Court under section 107 or section 108 of the Act shall be commenced by notice of motion and supported by such affidavit or affidavits and other documents as are for the time being specified by practice direction.

(2) The Court shall cause every wardship matter in which a detention order has been made and no application has been made under section 107 or section 108 of the Act to be listed before the Court for the purpose of the giving of directions.

(3) In each case mentioned in sub-rule (2), the Court shall cause the matter to be assigned a date for hearing, on notice to the person concerned and such other persons as the Court directs.

(4) On the hearing date or on any adjournment from such date, the Court may proceed to hear and determine the matter. Where it considers it necessary to do so, the Court may give further directions and make such orders for the further conduct of the matter as appear convenient for the determination of the matter in a manner which has regard to the guiding principles set out in section 8 of the Act and is otherwise just, expeditious and likely to minimise the costs of the proceedings.

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Proceedings for the care, treatment or detention of persons who lack capacity

19.(1) Subject to sub-rule (3), any application to the Court otherwise than under the Act in which relief is sought concerning the care, treatment or detention of a person (including any person whose discharge has been ordered under section 107(4) or section 108(4) of the Act) who is alleged to lack capacity may be made by originating notice of motion grounded on an affidavit.

(2) On the return date of an application to which sub-rule (1) applies, or on any adjournment from such date, the Court may proceed to hear and determine the application concerned. Where it considers it necessary to do so, the Court may give further directions and make such orders (including as to service) for the further conduct of the application as appear convenient for the determination of the matter in a manner which is just, expeditious and likely to minimise the costs of the proceedings.

(3) Where the Court is satisfied that the urgency of the case so requires, allow any application to which sub-rule (1) relates to be made ex parte, subject to such conditions, if any, as the Court considers just.

(4) All originating documents under this rule shall be issued out of the Central Office and all affidavits in applications under this rule shall be filed in the Central Office.

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