S.I. No. 261/2023 - Rules of the Superior Courts (Assisted Decision-Making (Capacity) Act 2015) 2023

1. On the .........day of ..............20...., between the hours of ....... and ........ I personally served the Ward with notice of the application herein.

2. I effected such service at [set out the address at which service was effected] by showing him/her personally copies of the application and [specify documents served therewith].

3. I explained the nature and implications of the application to the Ward. [or explain efforts made to explain the nature and import of the application.]

4. I explained to the Ward that the Ward is permitted and encouraged to participate, and will be facilitated, in participating in the hearing of the Discharge Application. [or explain efforts made to explain same.]

5. The response of the Ward was .......... [or state that the Ward made no response].

6. At the time of such service I was acquainted with the appearance of the Ward [or the Ward was identified to me by .............]

Sworn etc.

Form No. 21

HIGH COURT

CAPACITY

ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 [OTHER THAN PART 6 OR PART 10]

Record number

In the matter of .......................of ........................................

Application of............................of ..............................., Applicant(s)

PLEASE NOTE that on the ........day of .............20... at .... o’clock, ....................., the Applicant(s) [insert the name(s) of any other person(s) joining in making the application]

will apply to the High Court for: ...................................................... ....................................................................................................................................................

and for such other orders as the Court is empowered to make under said Act.

Dated ..................................... 20.....

Signed______________________________________

*Applicant(s)/*Solicitor for Applicant

To: Central Office

And to: ............................, the person who is the subject of the application

of.....................................

And to: ............................Notice Party

of.....................................

*Delete where inapplicable

EXPLANATORY NOTE

(

This note is not part of the Instrument and does not purport to be a legal interpretation

)

These rules amend the Rules of the Superior Courts by the insertion of a new Order 67A and the addition of Forms 20 and 21 to Appendix K to those rules to facilitate applications for discharge from wardship under Part 6 of the

Assisted Decision-Making (Capacity) Act 2015

as amended as well as applications other than under Part 6 of the Act. These rules also include amendments to a number of Orders within the Rules of the Superior Courts, required as a result of the commencement of the said 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.”

Schedule 2

“FORMS IN PROCEEDINGS UNDER THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015

Form No 20

HIGH COURT

CAPACITY

AFFIDAVIT OF SERVICE OF APPLICATION

FOR DISCHARGE FROM WARDSHIP

ASSISTED DECISION-MAKING (CAPACITY) ACT 2015, PART 6

Record number

In the matter of .................of .................................., a Ward of Court

Application of............................of ..............................., Applicant(s)

I, [name] of [address] aged 18 years and upwards, make oath and say as follows:—

26. A grant of administration may be made to the committee of a ward of court, for his or her use and benefit.

27. Where an application is made under

section 27

(4) of the Succession Act 1965 for a grant of administration, and the applicant is the decision-making representative of a relevant person, appointed under the

Assisted Decision-Making (Capacity) Act 2015

, in circumstances where such relevant person could otherwise apply for a grant of administration, the applicant shall set out details of the order of the Circuit Court under section 38 of the said Act of 2015 and of how such application is for such relevant person’s use and benefit.”;

(t) by the substitution for rule 4 of Order 91 of the following rule

“4. Where a claimant under the said section 76 is a child or a person in respect of whom a decision-making representation order has been made under

section 38

(2)(b) of the

Assisted Decision-Making (Capacity) Act 2015

and is in force, the provisions of Order 22, rule 10, shall apply to any sum in respect of which such claimant obtained an order under the said section in like manner as if such claimant had recovered such sum in an action against such vehicle insurer or vehicle guarantor.”;

(u) by the substitution for rule 10 of Order 96 of the following rule

“10. Where a relevant person (within the meaning of

section 2

(1) of the

Assisted Decision-Making (Capacity) Act 2015

) is a respondent, the provisions of Order 15, rule 17 shall, as far as applicable, apply to service on him.”;

(xxii) by the substitution for rule 12 of Order 134A of the following rule

“12. In the case of an award to which section 13(8)(b) of the Act applies, where the Court has ordered under section 13(14) of the Act that the amount of an award to a beneficiary, or any part thereof, be paid into court, the Court may, of its own motion or on the application ex parte of the beneficiary concerned, if satisfied that there is no evidence before the Court as to the capacity of the beneficiary sufficient to justify the commencement of any proceedings under Part 5 of the

Assisted Decision-Making (Capacity) Act 2015

, order payment to the beneficiary of the whole or any part of the award (or any funds representing such award or any remaining part of it) which has been paid into court in accordance with section 13(14) of the Act.”;

(v) by the insertion immediately following sub-rule (2) of rule 14 of Order 134A of the following sub-rules

“(3) Where it appears to the Court, on an application made under section 13(14) of the Act, that it is appropriate that a beneficiary be the subject of proceedings under Part 5 of the

Assisted Decision-Making (Capacity) Act 2015

, the Court may, in addition to making an order determining the application, direct the Board or the Registrar to notify a person to whom section 36(1) of that Act applies relative to the beneficiary of the circumstances of the beneficiary, and to furnish such information to that person as the Court may direct.

(4) Where a decision-making representation order is made under section 38 (2)(b) of the

Assisted Decision-Making (Capacity) Act 2015

in respect of the beneficiary, the Court may direct that any funds lodged in court in accordance with an order made under section 13(14) of the Act be paid or transferred in accordance with the terms of the decision-making representation order.”, and

(w) by the insertion in Appendix K of the forms in Schedule 2, immediately following Form No. 19.

Schedule 1

“Order 67A

Assisted Decision-Making (Capacity) Act 2015

I. Preliminary

Definitions

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

30

th May,

2023.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the

Courts of Justice Act 1936

, section 67, and reconstituted pursuant to the provisions of the

Courts of Justice Act 1953

, section 15, by virtue of the powers conferred upon us by the

Courts of Justice Act 1924

, section 36, the

Courts of Justice Act, 1936

, section 68 (as applied by the

Courts (Supplemental Provisions) Act 1961

, section 48), the

Courts (Supplemental Provisions) Act 1961

, the

Succession Act 1965

, section 27(3), the

Assisted Decision-Making (Capacity) Act 2015

, section 92(6) and section 130, and of all other powers enabling us in this behalf, do hereby make the following Rules of Court.

Dated this 15 day of May, 2023.

Donal O’Donnell (Chairperson)

George Birmingham

David Barniville

Elizabeth Dunne

Brian R. Murray

John A. Edwards

Máire Whelan

Richard Humphreys

Siobhán Phelan

Yvonne McNamara

Gráinne Larkin

Michele O’Boyle

Liam Kennedy

James Finn

Mary Cummins

John Mahon

I concur in the making of the following Rules of Court.

GIVEN under my Official Seal,

25 May, 2023.

SIMON HARRIS,

Minister for Justice.