Getting consent of the court before making a capacity application
Check if you need consent of the court to make a capacity application
There are certain people who have relationships with the Relevant Person (a Relevant Person is the person whose capacity to make decisions is in question) and they don't have to apply to the court for consent to make a capacity application.
However, people who don't have those relationships with the Relevant Person need to apply to the court to get consent before they are allowed make a capacity application.
People who do not need the consent of the court to make a capacity application
The following people do not need the consent of the court to make a capacity application
- the Relevant Person
- the Director of the Decision Support Service
- the Relevant Person’s spouse or civil partner or co-habitant
- the Relevant Person’s adult child
- An existing decision supporter for the Relevant Person (a decision-making assistant, co-decision-maker, attorney or a designated healthcare representative)
- a person specified for that purpose in an existing order of the court under this Part where the application relates to that order
- 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 -
- a registrar within the meaning of section 17 of the Civil Registration Act 2004 , or
- the other party to the proposed marriage or civil partnership (if any), as the case may be, of the Relevant Person
If the applicant for a capacity application is not listed above, then they must first make an application for the consent of the court..
How to apply for consent of the court to make a capacity application
If you are not one of the people in the above list then you must first apply to the Circuit Court for consent to bring a capacity application.
To make the application for consent, you (or your solicitor) need to complete the necessary paperwork and submit it to the court office. You need to provide:
- An ex Parte Consent Application Form [LINK]
- A grounding affidavit. This must include details of any existing decision support arrangements and provide information as to why the application cannot be made by one of the persons who do not need the consent of the court to make an application. [LINK]
- The grounding affidavit must exhibit the capacity application [LINK] and Statement of Particulars [LINK] intended to be filed if consent is given.
As the consent application is made ex parte, you do not need to notify anyone that you are making the application. The Court can adjourn the matter however and direct that you notify certain people.
If consent is granted, a copy of the consent order must be exhibited to the grounding affidavit of the capacity application when it is lodged with the Court Office.
