Under the 2015 Act, a DMRO is the highest tier of decision support arrangement available and is therefore subject to the strongest of safeguards. A decision-making representative can be appointed by the Circuit Court, and they can take decisions on behalf of the relevant person, in line with the relevant person’s known will and preferences. This may include decisions about property and financial matters, as well as decisions about personal welfare. Where there is no decision-making representative available to act on behalf of the relevant person, one may be appointed from a panel maintained by the Decision Support Service.
Section 36 of Part 5 of the 2015 Act provides for capacity applications to be made to the Circuit Court in respect of relevant persons, with a view to appointing a suitable decision-making representative(s) to the relevant person. It sets out the categories of persons who can make Part 5 applications directly to the Court. These categories include, inter alia, a spouse or cohabitant, an adult child, a decision supporter appointed under the 2015 Act, and a designated healthcare representative. A person who proposes to make an application under Part 5 but who does not fall into the above category of persons and who has a bona fide interest in the welfare of the relevant person, must make an ex-parte application for ‘consent’ to make a Part 5 application to the Circuit Court. This includes parents of adult children.
I appreciate the role of many parents and full-time carers as strong advocates for adults with diminished capacity. However, the 2015 Act was drafted in manner that ensures that the interests of those with capacity difficulties are placed front and centre, to account for situations where parents may not have maintained such a strong relationship with their adult children, and where the absence of the initial Circuit Court process may be a safeguarding risk.This ensures that the appropriate and necessary safeguards are in place to protect the rights and autonomy of those with diminished decision-making capacity.
The cost of applying to become a decision-making representative will be dependent on a number of factors. These costs are not set by this Department. Further information on the DMRO application process is available on the Courts Service website here: https://services.courts.ie/Civil-Law/Assisted-Decision-Making-Capacity-(ADMC), and on the DSS website here: https://decisionsupportservice.ie/services/decision-making-representation-order.
The Legal Aid Board provides legal advice and legal aid in the area of Assisted Decision-Making. In circumstances where an application needs to be made to the Circuit Court for the appointment of a decision-making representative, the Legal Aid Board can provide legal advice and legal representation in proceedings before the Circuit Court, however a financial means test may apply. More information can be found on the Legal Aid Board website at: www.legalaidboard.ie/our-legal-aid-service/how-we-can-help-you/assisted-decision-making-act-2015/.
Applications for legal services to the Legal Aid Board seeking legal representation in respect of applications to Court for the appointment of a decision-making representative are treated with priority by the Legal Aid Board.
A review of the operation and effectiveness of the 2015 Act is provided for under the legislation, and is also a commitment in the Programme for Government. This review will take place in consultation with a wide range of stakeholders, and will be informed by feedback from those with lived experiences of the provisions of the Act.
