Circuit Court appoints Decision Making Representative on behalf of a litigant lacking capacity to resolve probate claim

A recent decision of the Circuit Court regarding the appointment of a Decision Making Representative highlights the novel ways that the Assisted Decision Making (Capacity) Act, 2015 can be applied to benefit an individual based on their specific circumstances.

In the matter of the Assisted Decision-Making (Capacity) Act 2015 and in the matter of JD, the Circuit Court recently considered an application for an Order appointing a Decision-Making Representative for a litigant who lacked litigation capacity.  Kevin Healy, Senior Associate and Ana Harrington, Trainee Solicitor at Comyn Kelleher Tobin examine the decision.

Background

JD had brought proceedings under s. 117 of the Succession Act 1965 challenging his late father’s will and alleging that his father had not made proper provision for him. JD was described as having difficult circumstances in life and having not been in regular employment and having been diagnosed with bipolar disorder.

At a point where there had been productive negotiations to reach a settlement of his legal proceedings, JD ceased providing instructions to his solicitors or communicating with them in any way. It transpired that he had been in hospital, initially as an involuntary patient under the Mental Health Acts but subsequently as a voluntary patient. His solicitors sought help from his social worker and his treating psychiatrist, but JD refused to engage with either of these in relation to his ongoing litigation, which he insisted was a private matter. Therefore, no formal capacity assessment could be carried out.

Given that the hearing date was approaching, JD’s solicitor felt it would be inappropriate to attempt to come off record and sought an application to adjourn proceedings pending a capacity application.

Capacity Application

JD’s solicitor brought an application pursuant to Order 47B Rule 4(3) of the Circuit Court Rules, in accordance with Part 5 of the Assisted Decision-Making (Capacity) Act 2015 to ensure that JD’s interests were protected, including his interest in a successful outcome to the litigation, and the avoidance of unnecessary legal costs. As JD had not responded to any effort to contact him concerning the application, his solicitor sought:

• A Declaration under s. 37(1)(b) of the Act that he lacked capacity even if a co-decision maker were appointed, and;
• An Order under s. 38(2)(b) appointing a Decision-Making Representative for JD to provide instructions in the s. 117 proceedings, as well as to manage any funds received from those proceedings to protect JD’s interests.

The solicitor engaged the services of an independent solicitor who was a specialist in capacity law to visit JD and determine his will and preferences so that these could be presented to the Court.

At hearing, JD’s treating psychiatrist gave evidence that JD repeatedly spoke of getting the s. 117 litigation over with and had expressed his distrust of his solicitors and belief that he had never engaged them. The psychiatrist felt that JD suffered from paranoid delusions. He also felt that JD did not understand how much he stood to gain from the legal proceedings, nor how the Court system worked and likely consequences of failing to engage in the litigation.  On the balance of probabilities, he did not believe that JD had litigation capacity.

The independent solicitor gave evidence that when she went to speak to JD, he had told her that he did not trust anyone, did not want anything from anyone and did not want the money.  In her opinion, there was no prospect of JD attending the capacity application hearing, and therefore the hearing could proceed in his absence for the purposes of S.139 of the Act, which requires that the relevant person be present at the hearing of a capacity action concerning them unless they are unwilling to attend.

Decision

The Court first set out the relevant principles in determining litigation capacity:

1. There is a rebuttable presumption of capacity.
2. Expert evidence will be required to determine capacity.
3. Experts should assess capacity in a functional way, considering the person’s capacity to understand, retain and use the relevant information and communicate their decision.
4. Memory tests are not sufficient for determining capacity and should be used as a screening tool only.
5. A litigant may be treated as having litigation capacity if their family, medical advisors and legal advisors can provide information in a clear and straightforward manner, even if the litigant may not be able to understand the full complexities of the litigation.
6. Witness evidence is usually confined to the stating of facts, but expert evidence may give opinion, and the weight a Court will attach to that opinion will depend on the expert’s expertise and understanding of the functional nature of the assessment.
7. There are a number of factors the Court will consider in determining whether a litigant has litigation capacity, including:

• • Their understanding of the particular proceedings, the role of the court, lawyers, and the issues involved;
  • Their ability to formulate, evaluate, and articulate questions, replies and decisions;
  • Their ability to communicate feelings, preferences,  values,  and interests; and
  • Their ability to give instructions and respond to their lawyers.

8. Additionally, the Court identified a number of factors where a litigant’s litigation capacity can be enhanced, including:

• • The manner (including tone of voice) of the experts and lawyers;
  • The accompaniment of a support person;
  • The time of day, length of session, and a calm environment; and
  • The involvement of professional services such as an advocate, speech and language therapist, or social worker.

9. The fact that a person will not make a wise decision is not sufficient reason to determine that they lack capacity. Additionally, interventions should consider the will and preferences of the litigant, rather than the optimal outcome.

Conclusion

Ultimately, the Court found that JD did not sufficiently understand the nature, purpose and effect of the proceedings, or the consequences of not engaging with them, and therefore lacked capacity. Given the principle of minimum intervention required under the Act, an Order was granted to appoint a Decision-Making Representative for the specific purpose of compromising the legal proceedings.  The appointment was made for that purpose only, and for a six month period, to be reviewed by the Court at the end of that period.

This is an important judgment demonstrating the flexibility of the Assisted Decision Making Act in fitting the particular needs of an individual lacking capacity in a particular part of his life.