Circuit Courts

How Circuit Courts Can Appoint a Decision Making Representative

If a person hasn’t made an advance health care directive or Enduring Power of Attorney for certain decisions, the Circuit Court can appoint a decision making representative. The decision-making representation order lists the decisions that the representative can make for the person.

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Who can be a decision-making representative?

If an adult has not made an enduring power of attorney or advance healthcare directive, and the court agrees that they lack decision-making capacity, the court can give a person who is known as a decision-making representative responsibility for some decisions. The decisions are written down in a decision-making representation order. The court can appoint more than one decision-making representative and decide whether they must make decisions together or separately.

Representatives must keep personal information about the adult safe and only use it for the purpose of making decisions on their behalf. They must also consider the adult’s prior instructions, wishes and values when making decisions.

Representatives must arrange a reassessment of the adult’s capacity if they think that their ability to make decisions has changed (but not more frequently than every six months). Representatives must provide reports to the Public Trustee or the court when requested by the court.

What is the role of a decision-making representative?

When the Circuit Court decides that an adult can’t make certain decisions on their own or with someone else’s support they can grant a decision-making representation order to a person they know and trust. The decision-making representative can only make the decisions set out in the order and must take into account any advance healthcare directive that has been made by the adult.

A decision-making representative must keep records of all the decisions they make for an adult and provide a report to the Public Trustee or the court at regular intervals or when requested to do so. They must also arrange for reassessments of the adult’s capacity in any area that has changed.

If there is no-one known to the adult who can be appointed as a decision-making representative the court will choose someone from a panel of trained experts kept by the Decision Support Service.

How do you become a decision-making representative?

If you believe an adult lacks capacity to make certain decisions, or can only do so with your support, you may wish to apply for a decision-making representation order. You can get help from a solicitor who can help you complete the application and submit any supporting affidavits.

The court will pick a decision-making representative to act on your behalf. This will be written down in an order. The court can choose one person to make all the decisions or more than one person to make different types of decisions. The court will also list all the decisions that a decision-making representative can make.

Representatives can be reimbursed for their out of pocket expenses and compensated for their time as a representative if you request it on the representation application. They must also report to us on a regular basis.

What are the decisions that a decision-making representative can make?

If an adult is considered to lack capacity and does not have an enduring power of attorney or advance healthcare directive in place, an application can be made to the Court for them to appoint someone called a decision-making representative. The decision-making representative can only make decisions that the Court has set out in an order and they must take into account the adult’s wishes, values and beliefs when making these decisions.

The court may choose a person who is known to the adult or pick a person from a panel of trained decision-making representatives. The court will list all the decisions that the decision-making representative can make in the order. The court will also ensure that the powers granted are as limited in scope and duration as possible, having regard to the interests of the adult who lacks capacity.

How do I make a complaint about a decision-making representative?

If you are unhappy with your decision-making representative or are concerned that they are not acting in your best interests you can make a complaint. You can do this by using our online form or by talking to us.

Decision-making representatives have a duty to keep personal information about the adult they are representing private and only use it for decision-making. They must also make sure that no one else can access the information.

Where a person has no capacity to make decisions on their own, an application can be made to the Circuit Court to appoint what is known as a Decision-Making Representative. The court will appoint a person from an established panel and will ensure that the powers conferred are limited in scope and duration having regard to the interests of the relevant person.

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