Who cares now?

The amendment of the Assisted Decision-Making (Capacity) Act 2015 to abolish the role of the care representative was a grave error on the part of the Oireachtas, writes Maria Dillon

The commencement of the Assisted DecisionMaking (Capacity) Act 2015, as amended, on 26 April 2023 now means that family members or relatives who wish to assist a person with diminished capacity to complete an application for Nursing Home Support (‘Fair Deal’) and, more importantly, to apply for the ancillary Nursing Home Loan, have no alternative but to make an application to the Circuit Court to seek to have a decision-making representative appointed.

The demise of the care representative has had a number of very significant implications for vulnerable persons and those family members and relatives seeking to help any person looking to maintain or transition to long-term residential care. 

Historically, a care representative was appointed by a county registrar; there was no necessity to bring a preliminary leave application. County registrars’ courts are held frequently.

Furthermore, the county registrars’ courts are accessible both online and in-person. Care representative applications were straightforward, with minimal paperwork,and medical practitioners (in particular hospital doctors and medical social workers) were very familiar with the application papers. 

Most importantly, attendance at a county registrar’s court is less costly than multiple attendances before a judge of the Circuit Court, and a less intimidating hearing format than conventional Circuit Court sessions. 

Lamentably, the Oireachtas envisaged no role for the county registrar in the decision-making representative application process. 

Moreover, the significant amendments to the Nursing Homes Support Scheme Act, which abolished the role of the care representative and the remit of the county registrar, appeared only at a very late stage in the drafting of the amendments to the 2015 act. 

The last-minute introduction of such sweeping amendments meant that very little consideration was given to such radical changes to the operation of the ‘Fair Deal’ Scheme and, like so many far-reaching changes introduced by the 2015 act, the concerns of the legal profession were not afforded appropriate consideration. 

Supporting vulnerable people 

The ability to support a vulnerable person who has diminished capacity to either progress to long-term residential care or to meet the continuing cost of long-term residential care is fundamental. 

Unfortunately, at a time when a vulnerable person may have exhausted personal savings, an application to the Circuit Court to have a decision-making representative appointed to avail of ancillary state support under the ‘Fair Deal’ Scheme is an additional financial burden. 

As matters stand, the cost of progressing an application to the Circuit Court is prohibitive and unnecessarily convoluted. 

If a vulnerable person with diminished capacity has very limited means, and the application to the Circuit Court is essentially to progress an application to the ‘Fair Deal’ Scheme for the ancillary state support home loan, then immediate consideration should be given to extending the category of persons who are permitted to bring an application, without having to first seek leave of a judge of a Circuit Court. 

Many courthouses may be accessible but are not suitable places for elderly persons with diminished capacity. It is simply inappropriate that elderly persons who are confused and agitated should be brought to court, under any circumstances. 

It is unfathomable why the Oireachtas envisaged that it would be appropriate to compel vulnerable and aged relevant persons to attend at court when, since the pandemic, all courthouses, hospitals, nursing homes, and care homes are equipped to facilitate remote, virtual hearings. 

It is also unacceptable that such disparity exists in reviews of wardship in the High Court and reviews of capacity in the Circuit Court. 

It is standard practice that any ward of court who so wishes can participate remotely in any High Court hearing, including his or her discharge from wardship – but when a former ward of court has his or her capacity reviewed by the Circuit Court, it appears that it is unlikely that remote participation will be facilitated, in the absence of a concerted review of the conduct of hearings.

Affording certainty 

Another issue of concern is that, previously, it was possible to afford certainty, and allay anxiety, in bringing any care representative application before a county registrar, as dates of all county registrars’ courts are published annually. 

However, the lack of uniformity from county to county as to how and when applications pursuant to the 2015 act are listed is very difficult to navigate. 

There appears to be no understanding of the fact that if a vulnerable person is discharged from an acute hospital to long-term residential care, it is unlikely that transitional funding will be paid for more than ten weeks thereafter. 

Moreover, vulnerable persons without immediate family support are even more likely to be disadvantaged under the 2015 act. 

If one has to obtain a capacity assessment; draft a Form 55G and supporting affidavit; obtain a return date; attend at court for the leave application; obtain an order; make a referral to an independent advocate; consider whether or not the relevant person needs an independent legal representative; consider an application to the Legal Aid Board on behalf of the relevant person; prepare the Form 55A, Form 55B, and Form 55I; submit the papers to the appropriate court office to obtain a further return date; prepare the Form 55C; personally serve the relevant person and provide four weeks’ notice of a hearing date; serve any notice parties; prepare appropriate affidavits of service; attend at court for a substantive hearing seeking the nomination of a decision-making representative from the panel maintained by the Decision Support Service; prepare the Form 55J; and return to court on the next return date so that the appropriate decision-making representative can be formally appointed, it is next to impossible to complete this process in ten weeks. 

Moreover, the ‘Fair Deal’ application will then have to be finalised by the appointed decision-making representative. 

Historically, a care representative could make an application for ancillary state support, complete the Nursing Home Support Scheme application process, and liaise with the Health Service Executive. 

The care representative application process, overseen and processed by the county registrars’ courts throughout the State, was accessible, cost-effective, efficient and, for almost 15 years, highly effective. 

Unclear justification 

The demise of the role of the care representative cannot be understated. There was absolutely no reason why the role of care representative could not have co-existed effectively and successfully within the context of the 2015 act. 

It is inevitable that there will be a significant number of ‘delayed discharges’ and ‘bed blockers’ in the acute hospital system, and transitional funding is most likely the reason why discharge to long-term residential care is timely. 

However, the delays associated with the appointment of a decision-making representative are resulting in significant debt accumulating to nursing home providers. 

Many of the issues in implementing the 2015 act could have been addressed with appropriate consultation with the legal profession, particularly practitioners with expertise in acting for vulnerable adults. 

The justification and rationale for the abolition of the role of care representative is unclear, particularly when Courts Service data indicates that, with an ageing population, there was significant increase in applications in recent years. 

In the context of the resolution of 611 care representative applications before county registrars in 2022, one must ask whether there will be a comparable number of decision-making representation orders made by Circuit Courts this year? And if not, at what cost, emotionally and financially, to the most vulnerable in the State? 

Maria Dillon is a solicitor with Horan & Son Solicitors, Galway, and a member of the Law Society’s Mental Health and Capacity Task Force.