Nursing Homes Support Scheme Act 2009

21.

Appointment of care representative in case of person not having full capacity.

21.— (1) This section applies to the following matters:

( a) the making of an application for ancillary State support,

( b) consenting to the creation of a charge in relation to an interest in land situated within the State,

( c) taking necessary actions in connection with the application for ancillary State support, the making of an order under section 17(2) or the registration of such order in the Land Registry or the Registry of Deeds (including the perfection of the title of the person to whom the application relates).

(2) It shall be presumed, until the contrary is established, that a person has full mental capacity.

(3) This section does not apply to a person—

( a) who is a ward of court,

( b) who has appointed a person to be his or her attorney under an enduring power of attorney and—

(i) the attorney is not prohibited or restricted by the terms of the power from performing any matter to which this section applies, and

(ii) the enduring power of attorney has been registered and the registration has not been cancelled,

or

( c) in respect of whom another person is permitted by law to act on behalf of that person in relation to a matter to which this section applies notwithstanding that the person concerned does not have the capacity to make a decision in relation to such a matter.

(4) ( a) Where a person (a “relevant person”) does not, for the time being, have the capacity to make a decision in relation to a matter to which this section applies, a person belonging to a class of persons referred to in subsection (12) may apply to the court for an order appointing that person to be a care representative in relation to a matter which is a matter to which this section applies and which is specified in the order.

( b) Nothing in paragraph (a) shall be construed as requiring the making of an application in relation to a relevant person unless section 16(3)(b) applies.

(5) If the court is satisfied that the relevant person concerned is incapable, for the time being, of making a decision to which this section applies, and the court determines that it is in the best interests of the relevant person concerned, having regard to—

( a) the expressed wishes (if known) of the relevant person concerned, and

( b) the circumstances of the relevant person concerned,

the court may appoint a person to be a care representative in accordance with this section.

(6) The court may appoint more than one person to be a care representative of a relevant person and unless the court otherwise orders the care representatives shall act jointly.

(7) An order under this section appointing a care representative shall not permit the care representative to make any decision or take any action on behalf of the relevant person unless that decision is one to which this section applies and is specified in the order.

(8) An order under this section shall not be construed as making a determination as respects the capacity of the relevant person concerned otherwise than in relation to a matter to which this section applies and which is specified in the order.

(9) An order made under this section shall not otherwise affect the power of the relevant person concerned to deal with his or her property and affairs.

(10) Notice of every application under this section shall be given to the person to whom the application relates, unless the court determines that such notice need not be given.

(11) A person applying to be appointed under this section shall furnish such information to the court as the court may require in connection with the application.

(12) Subject to subsections (13) to (15), a person belonging to one of the following classes of persons may apply to be appointed as a care representative:

( a) where the person is a member of a couple, the other member of the couple;

( b) a parent of the relevant person;

( c) a child of the relevant person;

( d) a brother or sister (whether of the whole or half blood) of the relevant person;

( e) a niece or nephew of the relevant person;

( f) a grandchild of the relevant person;

( g) a grandparent of the relevant person;

( h) an aunt or uncle of the relevant person;

( i) a person, other than a person who is—

(i) the proprietor of a nursing home in which the relevant person resides or is likely to reside, or

(ii) one of the registered medical practitioners who examined the relevant person and prepared a report referred to in subsection (18) in respect of such person,

and who appears to the court to have a good and sufficient interest in the welfare of the relevant person.

(13) The right of a person referred to in subsection (12) to apply to be a care representative shall operate in descending priority, but a person with a greater priority may consent in writing to an application by and appointment of a person with a lesser priority.

(14) An application may be made by a person referred to in subsection (12) even where there is a person with equal or greater priority and consent under subsection (13) has not been given, and notice of such application shall, subject to subsection (17), be given to each such person having an equal or greater priority.

(15) The court shall not be bound by the giving of a consent referred to in subsection (13).

(16) Where there is more than one person within a class of persons referred to in subsection (12), an application may be made by one such person, but the court shall be satisfied that all other persons within that class or a class which has greater priority have received proper notice of the application.

(17) The court may give directions relating to the manner of giving notice to a person under this section and may deem any notice given to be sufficient or may, on sufficient cause being shown, dispense with the giving of notice of the application.

(18) ( a) The court shall not appoint a person to be a care representative unless it has before it a report from at least two registered medical practitioners who have examined the relevant person concerned and such reports confirm that the person does not have the capacity to make the decisions to which this section applies and setting out the basis for that conclusion.

( b) A report referred to in paragraph (a) shall be in the form prescribed, under regulations made under section 36 , for the purposes of this paragraph.

(19) The court may hear such other evidence relating to—

( a) the health or circumstances of the person concerned, and

( b) the circumstances of the partner of the person concerned,

as it considers necessary to determine whether it should make an order under this section.

(20) On being satisfied that it is appropriate to do so, the court may, in accordance with this section, appoint a person—

( a) who is of full age and full capacity, and

( b) who is, in the view of the court, a fit and proper person,

to be a representative (in this section referred to as a “care representative”) of the person in respect of whom the application is made.

(21) The court shall not appoint a person to be a care representative if that person is—

( a) a person who has been adjudicated a bankrupt unless the bankruptcy has been discharged or the adjudication annulled,

( b) a person who has been convicted of an offence involving fraud or dishonesty, or

( c) a person who has been convicted of an offence against the person or property of the person concerned.

(22) An order appointing a care representative shall be subject to such conditions restricting the care representative’s powers to act in relation to the matters to which this section applies as the court considers appropriate and as are specified in the order.

(23) Nothing in this section shall prevent the Court appointing a person to be a care representative of both members of a couple where—

( a) the provisions of this section have been complied with in relation to both members of the couple, and

( b) the Court considers that it is in the best interests of both members of the couple to do so.

(24) The Executive shall be entitled to deal with a care representative as if that care representative were the person in respect of whom he or she has been appointed and that such person had full legal capacity.

(25) Where an event specified in subsection (21) occurs as respects a care representative which would have prevented that person‘s appointment by reason of that subsection, the person concerned shall cease to be a care representative, and that person shall notify the Executive and the Court by which the appointment was made within 10 working days of such cesser.

(26) Where an order appointing a care representative ceases to have effect (for whatever reason), such cesser shall not prejudice the validity of anything previously done by the care representative under and in accordance with the appointment.

(27) Any transaction between a care representative and another person shall, in favour of that other person, be as valid as if it had been entered into by the person to whom the order relates and that other person.

(28) Where a person is appointed to be a care representative, he or she shall have a duty to act in the best interests of the person in respect of whom he or she has been appointed and to keep records relating to his or her actions, and have a duty to give all reasonable assistance to the Executive in relation to the registration of an order under section 17 (2).

(29) Where the court has appointed more than one care representative under subsection (6) an application may, on notice to any other care representative, be made to the court for directions .

(30) On application being made to the court by any person appearing to the court to have a good and sufficient interest in the welfare of the person to whom the application relates, the court may in accordance with this section appoint a person to be a care representative in place of a care representative previously appointed where—

( a) the care representative appointed previously has died or is no longer of full capacity,

( b) the care representative has indicated to the court that he or she wishes to resign, or

( c) the appointment of the care representative has been revoked by the court.

(31) On application being made to it by any person appearing to the court to have a good and sufficient interest in the welfare of the person to whom the order relates, the court may at any time direct a person appointed to be a care representative to do any of the following:

( a) prepare and file with the court a report of his or her actions as a care representative;

( b) attend before the court with such records and documents as may be specified.

(32) The court on the hearing of the application under subsection (30) or (31) may, if it considers it in the best interests of the person, revoke the appointment of a person appointed to be a care representative and appoint another person to be a care representative.

(33) Where more than one person stands appointed to act as a care representative of a person, the court in hearing the application under subsections (30) or (31) may revoke the appointment as respects one of the care representatives but not as respects the other or others and may appoint another person to be a care representative in place of the person whose appointment has been revoked.

(34) Where the court revokes the appointment of a care representative such revocation shall be without prejudice to the validity of anything previously done by the representative under and in accordance with the appointment.

(35) Where—

( a) an order under this section; or

( b) any decision or action taken by a care representative on foot of an order under this section,

is set aside or declared to be invalid by any court, such setting aside or declaration of invalidity shall not affect the obligation or liability of—

(i) the person on behalf of whom ancillary State support was paid, or

(ii) the person who, or on behalf of whom the request that ancillary State support be paid was made,

to repay such monies as if the order, decision or action had not been so set aside or declared to be invalid.

(36) Applications or proceedings—

( a) under this section, and

( b) to which subparagraph (xxxvi) (inserted by section 22 ) of paragraph 1 of the Second Schedule to the Courts and Court Officers Act 1995 refers,

shall be heard otherwise than in public.

(37) Unless the Court otherwise directs the requirements relating to the giving of notice which apply to an application seeking the appointment of a care representative shall also apply to applications under subsections (30) and (31).

(38) Any application or proceedings under this section (including the making of an order under this section) in respect of a relevant person, and whether or not subparagraph (xxxvi) (inserted by section 22 ) of the Courts and Court Officers Act 1995 applies in any particular case—

( a) shall not prejudice the generality of the operation of any rule of law or statutory provision which applies or may apply in respect of any other application or proceedings relating, whether in whole or in part, to the capacity of the relevant person,

( b) shall be disregarded, in respect of any other application or proceedings referred to in paragraph (a), in so far as such other application or proceedings relates or relate, as the case may be, to the capacity of the relevant person, and

( c) shall have no effect otherwise than in connection with matters related to this Act.

(39) A reference in this section, other than in subsection (35) , to “court” is a reference to the Circuit Court and the exercise of the powers of that court conferred by this section shall be within the jurisdiction of the circuit of the Circuit Court in which—

( a) the person to whom the application relates is residing at the time of the making of the application, or

( b) the person to whom the application relates has resided at any time during the period of 3 years immediately prior to the making of the application.

(40) An application to the Circuit Court under this section may be made in any county of the circuit concerned to which by reason of subsection (39) an application may be made under this section and may be transferred within such circuit from one county to another county.

(41) In this section—

“relevant person” means a person—

( a) who is receiving care services,

( b) whom it is anticipated may request care services, or

( c) who is the partner of a person referred to in paragraph (a) or (b).

(42) In this section a reference to “circumstances of the person” includes in relation to a person who is a member of a couple, the circumstances of the other member of the couple.

(43) For the purposes of this section a person shall be considered not to have the capacity to make a decision relating to a matter to which this section applies if he or she is unable—

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

( b) to retain that information,

( 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, using sign language or any other means) or, if the decision requires the act of a third party to be implemented, to communicate by any means with that third party.

Annotations:

Editorial Notes:

E9

Power granted to County Registrar to make certain orders under section by Courts and Court Officers Act 1995 (31/1995), s. 34 and sch. 2 par. 1(xxxix), as inserted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 65, commenced on enactment.

E10

Form of report referred to in subs. (18)(a) prescribed (5.10.2009) by Nursing Homes Support Scheme (Assessment of Capacity Report) Regulations 2009 (S.I. No. 409 of 2009), reg. 3 and sch. 1, in effect as per reg. 2.

E11

Power granted to Minister for Social and Family Affairs to appoint care representative under section to exercise rights and powers on behalf of certain claimants and beneficiaries by Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142 of 2007), reg. 202(3)(k), as amended (17.09.2009) by Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No. 6) (Nominated Persons) Regulations 2009 (S.I. No. 378 of 2009), reg. 2(b).