Court found RP lacked capacity to manage litigation under Succession Act 1965 s.117 and appointed a DMR.

AN CHÚIRT CHUARDA THE CIRCUIT COURT DUBLIN CIRCUIT COUNTY OF CITY OF DUBLIN Record Number: 2024.DUBL.ADMC/0000306 Neutral Citation: [2025] IECC 1

IN THE MATTER OF THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 AND IN THE MATTER OF JD

CAPACITY APPLICATION PART 5 OF THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 Re JD

Decision of His Honour Judge John O’Connor dated the 12th February 2025

1. Introduction

1.1 This case considers a situation where a concern arose as to whether the Relevant Person (“RP”) lacked litigation capacity in relation to the proceedings that he had instructed his solicitors to commence pursuant to s. 117 of the Succession Act 1965. I gave my decision orally on the 4th December 2024 and stated I would give written judgement at a later date.

1.2 The Applicant, AB, sought a declaration that the RP lacked capacity to make decisions regarding his property and affairs, and to appoint a Decision-Making Representative (“DMR.”) from a panel managed by the Decision Support Service (“DSS”).

1.3 The Applicant was concerned that the RP did not comprehend the seriousness, and potential consequences of declining to engage his legal advisors and his medical advisors in relation to litigation which he initiated.

2. Background of Section 117 Succession Act 1965 Litigation

2.1 The firm of Mr. AB, the RP’s solicitor, received instructions from the RP in early 2023 to issue proceedings under s. 117 of the Succession Act 1965 (as amended) in relation to the estate of his father. In essence the proceedings claimed that the RP’s father had failed in his moral duty to make proper provision for him in accordance with his means either in his last will or during his lifetime. The RP’s circumstances in life have been difficult. He had not been in regular employment, and he had spent a certain amount of time in hospital having been previously diagnosed with bipolar disorder.

2.2 The proceedings were issued by way of Succession Law Civil Bill. In the course of those proceedings, it was submitted by the Applicant that there had been productive negotiations in an attempt to reach a settlement, subject to the approval of the Court. However, before such a settlement could be concluded and ultimately ruled by the Court, the RP had ceased to communicate with his solicitors including by phone and correspondence. It transpired that the RP had been hospitalised. The RP had been admitted to hospital initially on an involuntary patient basis but having remained there for a period of approximately eight months, was at the time of the capacity application a voluntary patient.

2.3 On the application of the executor of his father’s estate a hearing date for the proceedings had been fixed and was imminently approaching in late 2024.

2.4 The RP had engaged initially with Mr. AB in relation to those proceedings. However, from the end of 2023 that engagement ceased. Thereafter AB attempted on numerous occasions to contact the RP, by telephone, e-mail and in correspondence. All such attempts with the exception of a short telephone call in late 2023 were unsuccessful and had not led to any engagement with him or further instructions supplementing those that he had already received.

2.5 AB then made extensive attempts to contact the RP's social worker, CD, seeking her assistance and also seeking a medical report from his treating psychiatrist, Dr. BC. In an attempt to ascertain an update on the medical condition of the RP his solicitors had been in contact with hospital staff including his treating doctor and his social worker. However, the RP refused to engage with his social worker, he also refused to engage with his medical advisor, a consultant psychiatrist, to review him for the purposes of assessing his capacity.

2.6 The said medical advisor of the RP was requested by AB to provide a capacity assessment. In correspondence by way of reply the RP’s consultant psychiatrist advised that he had attempted to engage with the RP on this matter on three separate occasions. During each of those occasions the RP was adamant that the Court case is his personal matter and refused to engage in any detailed discussion around the subject. Due to his continued refusal to engage the medical consultant was unable to carry out a formal capacity assessment and as such was not in a position to provide a written opinion on his capacity to provide instructions at that time.

2.7 The RP’s solicitors had made an application before the Court in the Autumn of 2024 to adjourn the s. 117 proceedings pending the bringing of a capacity application to this Court.

3. Background to application

3.1 A question arose as to whether the RP had litigation capacity. Despite the issues that arose as to the nature of the RP's approach to the litigation, AB considered that it would not be correct nor appropriate in the circumstances to seek to come off record as solicitor, particularly given the proximity of the hearing date and also due to the belief that a Court would be unlikely to grant such a request. In these circumstances Counsel for the RP advised AB that an application for the appointment of a DMR. should be brought to protect the RP’s interests.

3.2 The object of the application was to ensure, in the context of the s. 117 proceedings, that the RP’s will and preferences would be respected, pursuant to s. 8(7)(b) of the Assisted

Decision-Making (Capacity) Act 2015 (“2015 Act”), and that his property and affairs would be preserved for his benefit. Section 2(1)(j) of the 2015 Act defines property and affairs, in relation to a Relevant Person, as including “the conduct of proceedings before any court or tribunal, whether in the name of the Relevant Person or on his or her behalf”. The RP had sought certain reliefs and remedies in the s. 117 proceedings. The underlying purpose of issuing those proceedings would be frustrated if they were to proceed in his absence and could potentially be dismissed, struck out or if any discussions on potential compromise settlement could not take place or could be adversely affected. There was a fear that the RP would potentially be exposed to unnecessary legal costs. In short, it was considered critical by his Counsel that a

decision-making representative be appointed to protect his interests therein.

3.3 The Applicant therefore initiated a capacity application in the RP’s name under Order 47B Rule 4(3) of the Circuit Court Rules and in accordance with Part 5 of the Assisted

Decision-Making (Capacity) Act 2015. It was submitted to the Court that the application was lodged by AB the solicitors for the RP on his behalf to protect his interests. The RP was formally advised in relation to making an application for a decision-making representative to be appointed but despite various efforts by phone and letters, he did not respond. Therefore, the Applicant brought a declaration pursuant to s. 37(1)(b) of the 2015 Act that the RP lacked capacity even if the assistance of a suitable person as a co-decision maker were made available to him to make the relevant decision in relation to his property and affairs.

3.4 An application was also made for the Court to make an order under s. 38(2)(b) of the 2015 Act to appoint a decision-making representative (DMR.) for the RP for the following decisions, namely, to provide instructions on the compromise or advancement of the s. 117 proceedings to protect the RP’s financial interests. In addition, if necessary, the Applicant sought an order to determine the manner of dealing with any funds received on foot of such proceedings to protect RP’s financial interests.

3.5 In order to comply with s. 139 of the Act, AB engaged the services of DE, as an independent solicitor with specialist experience in capacity issues to visit the RP so that his voice and will and preferences could be represented before the Court for the purposes of the application.

4. The Hearing of the Application

4.1 At the hearing this Court heard oral evidence from:

• Dr. BC the RP’s treating Consultant Psychiatrist

• Ms. DE, the RP’s independent solicitor with a speciality in capacity law

In addition, I noted correspondence from Ms. CD, the RP’s assigned Mental Health Social Worker

4.2 Dr. BC, the RP’s treating consultant psychiatrist stated he had been the RP’s treating consultant for the last 3 years and that the RP has been in hospital now for approximately 290 days. Dr. BC also stated that the RP came in as an involuntary patient but had then spent the majority of his time there as a voluntary patient. On average Dr. BC saw the RP twice a week during this period. Dr. BC stated that the RP

“has on several occasions spoken about one thing […] to get the case done and over with. He has on more than one occasion stated that does not trust the solicitors and denied having engaged the solicitors.”

Dr. BC stated that his educated guess is that the RP’s mental illness includes paranoid delusions but without the RP being very forthcoming it is hard for him to be definitive in his assessment. Dr. BC acknowledged that the RP is also permitted to leave the hospital and regularly does so, spending between one and three hours outside the hospital on a weekly basis. Dr. BC stated that the RP appeared to understand that the family home was sold and that he stood to gain a portion but notwithstanding same he did not think that the RP understood how much he was going to gain or how the court system worked. When specifically asked by Counsel for the Applicant if the RP would appreciate the consequences of not participating in proceedings including the issue of legal costs Dr. BC replied that he had tried explaining these matters to him to the best of his knowledge, but it appeared to him that the RP did not seem to understand the issues, so his answer was, “no”.

4.3 The Court having stated that capacity is presumed unless displaced, Dr. BC replied that in regard to the specific issues in this case of litigation capacity it was more likely than not, i.e., on the balance of probabilities, that the RP would not have capacity to weigh the issues and consequences of litigation at hand.

4.4 Ms. CD, the RP’s assigned mental health social worker confirmed in correspondence with AB that the RP was and had for some time been declining to engage with social services.

4.5 DE, the RP’s independent solicitor is an experienced solicitor with a speciality in capacity law. She gave evidence of having attended upon the RP in the hospital where he was a voluntary patient by prior appointment. She met the nurse in charge who indicated to her that it was unlikely that the RP would agree to meet with her. However, notwithstanding this the nurse went to his room in order to advise the RP that DE had arrived and would like a word with him. The RP declined to meet with DE. Prior to leaving the hospital DE asked if she could go as far as the RP's room just to say hello to him and when she did so she found him sitting at the side of his bed. The RP stated “I said I didn't want to talk to you” and DE replied “I appreciate that but in circumstances where I am your independent solicitor, acting for you and representing your interests, I thought I should at least say hello to you.” The RP stated “I don't trust anyone, but you can tell them I don't want the money.” DE agreed to pass on this message, and she advised him of the date that the application was listed before the Circuit Court for the Court to make a decision as to whether a Decision-Making Representative would be appointed to act on his behalf. The RP replied “no way I don't want anything from anyone, I want everyone to leave me alone and go away and I don't want the money.” Since the RP was getting quite annoyed at that point DE thanked him and left. DE stated in relation to the provision of s. 139 of the 2015 Act that in her opinion there was absolutely no prospect of the RP attending the Court application in person or online. Section 139 of the 2015 Act states that an application to Court under Part 5 of the Act shall be heard in the presence of the Relevant Person the subject

of the application unless pursuant to s. 139 (4), in the opinion of the Court, as the case may be the Relevant Person is unwilling to attend.

5. Legislative provisions

Assisted Decision-Making (Capacity) Act 2015

Person’s capacity to be construed functionally

3. (1) Subject to subsections (2) to (6), for the purposes of this Act, a person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a

decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time.

(2) A person lacks the capacity to make a decision if he or she is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information long enough to make a voluntary choice,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the

decision requires the act of a third party, to communicate by any means with that third party.

(3) A person is not to be regarded as unable to understand the information relevant to a

decision if he or she is able to understand an explanation of it given to him or her in a way that is appropriate to his or her circumstances (whether using clear language, visual aids or any other means).

(4) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him or her from being regarded as having the capacity to make the decision.

(5) The fact that a person lacks capacity in respect of a decision on a particular matter at a particular time does not prevent him or her from being regarded as having capacity to make decisions on the same matter at another time.

(6) The fact that a person lacks capacity in respect of a decision on a particular matter does not prevent him or her from being regarded as having capacity to make decisions on other matters.

(7) For the purposes of this section, information relevant to a decision shall be construed as including information about the reasonably foreseeable consequences of—

(a) each of the available choices at the time the decision is made, or

(b) failing to make the decision.

Guiding principles

8. (1) The principles set out in subsections (2) to (10) shall apply for the purposes of an intervention in respect of a relevant person, and the intervener shall give effect to those principles accordingly.

(2) It shall be presumed that a relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2(1) has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act.

(3) A relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2(1) shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.

(4) A relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2(1) shall not be considered as unable to make a decision in respect of the matter concerned merely by reason of making, having made, or being likely to make, an unwise decision.

(5) There shall be no intervention in respect of a relevant person unless it is necessary to do so having regard to the individual circumstances of the relevant person.

(6) An intervention in respect of a relevant person shall—

(a) be made in a manner that minimises—

(i) the restriction of the relevant person’s rights, and

(ii) the restriction of the relevant person’s freedom of action,

(b) have due regard to the need to respect the right of the relevant person to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property,

(c) be proportionate to the significance and urgency of the matter the subject of the intervention, and

(d) be as limited in duration in so far as is practicable after taking into account the particular circumstances of the matter the subject of the intervention.

(7) The intervener, in making an intervention in respect of a relevant person, shall—

(a) permit, encourage and facilitate, in so far as is practicable, the relevant person to participate, or to improve his or her ability to participate, as fully as possible, in the intervention,

(b) give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable,

(c) take into account—

(i) the beliefs and values of the relevant person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and

(ii) any other factors which the relevant person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable,

(d) unless the intervener reasonably considers that it is not appropriate or practicable to do so, consider the views of—

(i) any person named by the relevant person as a person to be consulted on the matter concerned or any similar F9[matter,]

F9[(ii) any decision-making assistant, co-decision-maker, decisionmaking representative, attorney or attorney under the Act of 1996 for the relevant person,]

F10[(iii) ...]

F11[(iv) a designated healthcare representative within the meaning of Part 8 for the relevant person, where the intervention relates to treatment and an advance healthcare directive within the meaning of Part 8 is applicable,]

(e) act at all times in good faith and for the benefit of the relevant person, and

(f) consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant.

(8) The intervener, in making an intervention in respect of a relevant person, may consider the views of—

(a) any person engaged in caring for the relevant person,

(b) any person who has a bona fide interest in the welfare of the relevant person, or

(c) healthcare professionals.

(9) In the case of an intervention in respect of a person who lacks capacity, regard shall be had to—

(a) the likelihood of the recovery of the relevant person’s capacity in respect of the matter concerned, and

(b) the urgency of making the intervention prior to such recovery.

(10) The intervener, in making an intervention in respect of a relevant person—

(a) shall not attempt to obtain relevant information that is not reasonably required for making a relevant decision,

(b) shall not use relevant information for a purpose other than in relation to a relevant decision, and

(c) shall take reasonable steps to ensure that relevant information—

(i) is kept secure from unauthorised access, use or disclosure, and

(ii) is safely disposed of when he or she believes it is no longer required.

6. Case Law

6.1 The leading case Fitzpatrick v. FK [2008] IEHC 104; [2009] 2 IR 7 although decided before the commencement of the Assisted Decision-Making (Capacity) Act 2015 sets out cogently the essential six principles for medical treatment. Although litigation capacity is distinct from medical treatment capacity, the six principles are relevant in considering a functional assessment of litigation capacity. In Fitzpatrick v. FK [2008] IEHC 104; [2009] 2 IR 7 the High Court made an interlocutory order that a 23-year-old Congolese woman (Ms. K), who had refused a blood transfusion, should be given the transfusion against her will in order to save her life. The matter came before Laffoy J for a full hearing to determine whether the transfusion, given on the basis of the interlocutory order, had been lawfully given. Laffoy J reviewed case law on mental capacity from other jurisdictions. Adopting a functional approach to Ms. K’s decision-making capacity, she concluded that Ms. K’s capacity was impaired to the extent that she did not have the ability to make a valid refusal to accept a blood transfusion. Therefore, the administration of the transfusion was not an unlawful act and did not constitute a breach of her rights under the Constitution or the European Convention for the Protection of Human Rights and Fundamental Freedoms. Laffoy J outlined the following six principles at p. 42-44 which are applicable when determining a person’s decision-making capacity. They are summarised as follows:

1. There is a rebuttable presumption that an adult patient has the capacity to make a

decision to refuse medical treatment.

2. In determining whether a patient is deprived of capacity to make a decision to refuse medical treatment, the test is ‘whether the patient’s cognitive ability has been impaired to the extent that he or she does not sufficiently understand the nature, purpose and effect of the proffered treatment and the consequences of accepting or rejecting it in the context of the available (including any alternative) treatment at the time the decision is made’.

3. This follows the three-stage approach in the English case of Re C (adult: refusal of treatment) [1994] 1 WLR 290.

Ms. K did not sufficiently understand and retain the information given to her by the hospital personnel as to the necessity of a blood transfusion to preserve her life. She did not believe the information and in particular she did not believe that she was likely to die without a blood transfusion being administered. Finally, in making her decision to refuse a blood transfusion, Ms. K had not property weighed that information, balancing the risk of death inherent in the decision and its consequences.

4. The fourth principle held that Ms. K’s clinician had given the information necessary to enable her to make an informed decision and this information was conveyed in layperson’s terms.

5. The fifth principle was that a distinction was made between a misunderstanding of the treatment information in the decision-making process, which may be evidence of lack of capacity, and an irrational decision, which is irrelevant to the assessment.

6. In laying down the sixth principle, Laffoy J rejected the suggestions of Ms. K’s counsel that the patient’s capacity should be measured against the nature of the decision rather than its consequences, and that the assessment of capacity must have regard to the ‘gravity of the decision, in terms. of the consequences which are likely to ensue from the acceptance or rejection of the proffered treatment’. In this case, when refusing a blood transfusion, Ms. K had suggested to the Master of the Hospital that Coca Cola and tomatoes might be an alternative solution to a blood transfusion, which, as Laffoy J stated, could ‘only ring alarm bells’ as to Ms. K’s appreciation of the gravity of the situation when viewed objectively.

6.2 In CD v. BB [2023] IEHC 204 Stack J dealt with an application for a solicitor to come off record as solicitor for the Relevant Person as the solicitor was of the view the Relevant Person lacked litigation capacity. The Application was refused. In the course of her detailed judgment, the learned Judge referred to the decision of Nolan v. Carrick [2013] IEHC 523 at para. 52 – 54 as follows:

The capacity to give instructions for the purposes of proceedings was considered in Nolan v. Carrick [2013] IEHC 523, in which Dunne J. approved the approach of the English Court of Appeal, in Masterman-Lister v. Brutton and Company (Nos. 1 and 2) [2003] 1 WLR 1511, which she identified as follows (at pp. 45-46 of her judgment):

“Capacity requires an ability to make and communicate, and where appropriate give effect to, all decisions required in the context: this in turn requires the ability to recognise a problem, obtain and receive, understand and retain relevant information, including advice; to weigh the information (including that derived from advice) in the balance in reaching a decision, and communicating that decision. In short, it requires an ability to understand the transaction when it is explained by advisers. Although the court should have regard to the complexity of decisions under consideration it should not have regard to its own valuation of the gravity of those decisions….

All adults are presumed to be competent to manage their property and affairs. The contrary has to be proved by those alleging incapacity; the fact that an individual was at some stage incompetent does not displace this requirement by way of the presumption of continuance, though clear evidence of incapacity for a considerable period of time may mean that the burden of proof is more easily discharged. Medical evidence will almost certainly be required.

In determining capacity under the rules of court, it is necessary to have regard to time and context, namely the particular litigation: in contrast, the court of protection has to look to the totality of the property and affairs of the alleged patient and has to have regard to the complexity and importance of that person[‘s] property and affairs. The issue of the specific nature of the test means that it is possible to have capacity to make all decisions related to litigation, but not to decide how to administer an award made. Consequently, a decision as to capacity in one context, does not bind a court which has to consider the same issue in a different context. A person may be a patient for purpose of RSC O.

80, r. 1, or CPR 21.1 (a need litigation friend), but not for the purposes of s. 94

(2) of the Mental Health Act 1983 (Court Protection), and vi[ce] versa; any medical witness asked to assist in relation to capacity needs to know the area of the alleged patient’s activities in relation to which his advice is sought.”

Dunne J. also cited (at p. 47) the judgment of Chadwick L.J. where he stated (at para.

58 of his judgment):

“The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained.”

Dunne J. applied those principles to the case before her and identified (at pp. 53-54)

what she had to consider as:

“Was the Defendant’s cognitive ability impaired to the extent that he did not sufficiently understand with the assistance of such proper explanation from legal advisers and such experts as the nature of the case may have required, the issues on which his decision was likely to be necessary, the nature and effect of the decisions made in the course of the litigation, and the consequences of the decisions made by him for the litigation at that time?”

7. Interpreting Litigation Capacity under the Assisted Decision-Making (Capacity) Act 2015 as set out in Section 8 the Guiding Principles

7.1 There is a presumption of capacity per s.8(2) of the Assisted Decision-Making (Capacity) Act 2015 and the burden of proof rests on those asserting lack of capacity as stated in CD v. BB [2023] IEHC 204 at para. 152. If there is clear evidence that the person has been incapacitated for a considerable period the burden of proof may be more easily discharged, but it remains on the party asserting incapacity. The standard of proof is the balance of probabilities.

7.2 When determining litigation capacity, expert evidence is usually required which could be from a doctor or other professional as set out in SI 204/2023. In addition, the Court may require additional capacity evidence from other professionals such as the lawyer or those involved in the care of the Relevant Person.

7.3 In analysing medical evidence, medical reports that are based on assumptions without justifying that assumption would be treated with great caution by the Court and may be rejected as an inadequate assessment. It is important that a doctor or other expert giving the report to assesses the person’s capacity to litigate is based on the functional approach as set out in s.3 2015 Act and CD v. BB [2023] IEHC 204.

7.4 Tests that are based purely on memory can be defective as they necessarily only reflect a deficient memory and have little bearing on the person’s capacity to litigate. Memory tests are at best screening tests. A person may still be considered to have capacity if their memory is impaired, or they refuse to accept their lawyers’ directions and refuse to assist the Court.

7.5 In assessing the capacity to litigate, a preliminary step is that the individual who is taking the proceedings should be provided in so far as it is possible with all relevant information in an appropriate manner. If an individual’s family, medical advisors, and legal advisors can provide clear and straightforward information about the proposed proceedings, it may be possible for the individual to be treated as having litigation capacity even if, for example, they would not have the capacity to understand the full complexity of the litigation involved.

7.6 As Stack J cogently stated in CD v. BB [2023] IEHC 204 at para. 151 To repeat the test as established in Carrick v. Nolan, I have to ask myself if the applicant’s cognitive ability was impaired to the extent that she did not sufficiently understand, with the assistance of such proper explanation from legal advisers and such experts as the nature of the case may have required, the issues on which [her]

decision was likely to be necessary, the nature and effect of the decisions made in the course of the litigation, and the consequences of the decisions made by her for the litigation at that time.

7.7 This test is in keeping with the issue-specific and time-specific focus of the functional approach to litigation capacity as set out.

7.8 Witness evidence is usually confined to stating of facts; however, expert evidence regarding capacity, such as medical evidence, may involve the expert’s opinion. In these circumstances the weight a court will give to that evidence will depend on the sufficient level of knowledge and expertise that person has, the knowledge of the Relevant Person and the familiarity the expert has with the functional approach to the particular assessment.

7.9 The following are a non-exhaustive list of factors which a court will take into account when determining a person’s capacity to litigate bearing in mind there is an assumption of capacity unless displaced:

a) their understanding of the particular proceedings, the role of the court, lawyers, and the issues involved;

b) their ability to formulate, evaluate, and articulate questions, replies and decisions;

c) their ability to communicate i.e. to give voice to feelings, preferences, values, and interests; and

d) their ability to give instructions and respond to their lawyers.

7.10 The following factors may enhance litigation capacity:

a) the manner (including tone of voice) of the experts and lawyers;

b) the accompaniment of a support person;

c) the time of day, length of session, and a calm environment;

d) the involvement of professional services such as an advocate, speech and language therapist, a social worker.

7.11 The starting point of any intervention is not the optimum outcome for the Relevant Person but what is the will and preference of the Relevant Person. In addition, the fact that a person is likely to make an unwise decision is not a reason for the Court to intervene, per s. 8(4) of the 2015 Act.

7.12 A person who has diminished capacity should also be encouraged at all stages of a litigation process to have an independent lawyer, particularly where the court believes that the person’s interests might be adversely affected without a lawyer.

8. Section 139 of the Assisted Decision-Making (Capacity) Act 2015

8.1 The mandatory nature of this section provides that a case should be heard in the presence of the Relevant Person the subject of the application unless, in the opinion of the Court, the Relevant Person is not or would not be present in Court and would not cause an injustice to the Relevant Person. The reason why this section is so important is contained in the Latin maxim well known to all lawyers “Audi alteram partem” which means literally “listen to the other side”. In other words, if only hearing the Applicant, it may well be prejudicial to the Relevant Person.

8.2 From a Judge’s point of view, the attendance of the Relevant Person, either in person or by video link gives a context that can improve the decision-making process. However, there are circumstances such as in this case where the Relevant Person does not wish to attend Court. In these circumstances the Court will in so far as possible strive to get the voice of the Relevant Person whether through an advocate or as in the case at hand, a lawyer with specialist knowledge of capacity interventions. This Court therefore dispensed with the requirement for the Relevant Person to attend the hearing on the grounds that his lack of attendance would not cause an injustice to him as his voice was represented throughout the proceedings by an independent specialist solicitor.

9. Court Decision

9.1 This Court was satisfied due to the nature of the evidence outlined above for this specific purpose i.e. the compromising of legal proceedings under s. 117 of the Succession Act 1965 that the RP does not sufficiently understand the nature, purpose and effect of the proceedings and consequences of not engaging in them. Therefore, pursuant to s. 37(1)(b) of the 2015 Act, the Court found that the Relevant Person lacked capacity, even if the assistance of a suitable person as a co-decision-maker were made available to him, to make decisions in respect of the litigation he initiated. However noting the minimum intervention required under the 2015 Act and that intervention is to be proportionate and least restrictive in accordance with the Guiding Principles set out in s. 8 of the 2015 Act the Court granted an order under s. 38(2)(b) of the 2015 Act to appoint a decision making representative for the RP with the

assistance of the Decision Support Service for an initial period of six months in respect of these proceedings and which order shall be reviewed at the end of the said six month period.