Assisted Decision-Making (Capacity) Act 2015

36.

Persons who may make applications to court under this Part, etc.

36. (1) Subject to subsections (2) and (3), a relevant person, or any person who has attained the age of 18 years and who has a bona fide interest in the welfare of a relevant person, may make an application to the court under this Part.

(2) An application to the court under this Part (other than an application by the relevant person) shall be made on notice to—

(a) the relevant person the subject of the application, and

(b) the persons referred to in paragraphs (c) to (i) of subsection (4) (other than any such person who is the applicant).

(3) Subject to subsection (4), an application to the court under this Part shall not be made unless the person making the application has received the consent of the court to the making of the application, which consent may be sought by way of an ex parte application.

(4) Subject to section 49(1), subsection (3) shall not apply to an application to the court under this Part made by—

(a) the relevant person,

(b) the Director,

(c) the spouse or civil partner of the relevant person,

(d) a decision-making assistant for the relevant person,

(e) a co-decision-maker for the relevant person,

(f) a decision-making representative for the relevant person,

(g) an attorney for the relevant person,

(h) a designated healthcare representative for the relevant person,

(i) a person specified for that purpose in an existing order of the court under this Part where the application relates to that order,

(j) if the application relates, whether in whole or in part, to the relevant person’s capacity to make a decision to consent to being married or to being in a civil partnership—

(i) a registrar within the meaning of section 17 of the Civil Registration Act 2004, or

(ii) the other party to the proposed marriage or civil partnership (if any), as the case may be, of the relevant person.

(5) An application to the court under this Part (including an ex parte application under subsection (3)) shall state—

(a) the applicant’s connection with the relevant person,

(b) the benefit to the relevant person 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 relevant person sought to be achieved has failed to be achieved in any other appropriate, practicable and less intrusive manner taken prior to the making of the application, and

(ii) the reason why, in the opinion of the applicant, no other appropriate, practicable and less intrusive manner to achieve that benefit remains to be taken prior to the making of the application.

(6) In every application to the court under this Part, the applicant shall inform the court of the existence of—

(a) any decision-making assistance agreement, co-decision-making agreement, enduring power of attorney or enduring power under the Act of 1996 or advance healthcare directive created by the relevant person, and

(b) any decision-making representation order or decision-making order made in respect of the relevant person,

of which the applicant has knowledge.

(7) Rules of court shall make provision—

(a) as to the manner and form in which proceedings under this Part are to be commenced, and

(b) as to what may be received as evidence in such proceedings and the manner in which it is to be presented.

(8) The court, on the hearing of an application under this Part, may allow the relevant person the subject of the application, if he or she has not instructed a legal practitioner, to be assisted in court by a court friend for the relevant person unless—

(a) there is a decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative for the relevant person and the decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative, as the case may be, is willing to assist the relevant person during the course of the hearing, or

(b) subject to sections 100(12) and 103(15), there is another person, in respect of whom the court is satisfied that such person is suitable, willing and able to assist the relevant person during the course of the hearing.

(9) Where, on the hearing of an application under this Part—

(a) the relevant person the subject of the application has not instructed a legal practitioner,

(b) there is—

(i) no decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative for the relevant person or, if there is a decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative for the relevant person, he or she is not willing to assist the relevant person in the course of the hearing, and

(ii) no person who falls within paragraph (b) of subsection (8) in respect of the relevant person and the hearing,

and

(c) there is no court friend for the relevant person,

the court may direct the Director to appoint a court friend for the relevant person.

(10) Hearings of applications under this Part shall—

(a) be conducted with the least amount of formality consistent with the proper administration of justice, and

(b) be heard and determined otherwise than in public.

(11) Judges hearing and determining proceedings under this Part and legal practitioners appearing in such proceedings shall not wear wigs or gowns.