Rules of the Superior Courts (Assisted Decision - Making (Capacity) Act 2015) 2023.

• Jurisdiction: Ireland
• Year: 2023
• Citation: IR SI 261/2023

STATUTORY INSTRUMENTS

S.I. No.261of2023

Rules of the Superior Courts (Assisted Decision

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 30 th May, 2023.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act 1936 , section 67 , and reconstituted pursuant to the provisions of the Courts of Justice Act 1953 , section 15 , by virtue of the powers conferred upon us by the Courts of Justice Act 1924 , section 36 , the Courts of Justice Act, 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act 1961 , section 48), the Courts (Supplemental Provisions) Act 1961 , the Succession Act 1965 , section 27 (3), the Assisted Decision-Making (Capacity) Act 2015 , section 92 (6) and section 130 , and of all other powers enabling us in this behalf, do hereby make the following Rules of Court.

Dated this 15 day of May, 2023.

Donal O’Donnell (Chairperson)

George Birmingham

David Barniville

Elizabeth Dunne

Brian R. Murray

John A. Edwards

Máire Whelan

Richard Humphreys

Siobhán Phelan

Yvonne McNamara

Gráinne Larkin

Michele O’Boyle

Liam Kennedy

James Finn

Mary Cummins

John Mahon

I concur in the making of the following Rules of Court.

GIVEN under my Official Seal,

25 May, 2023.

SIMON HARRIS,

Minister for Justice.

1. (1) These Rules, which may be cited as the Rules of the Superior Courts (Assisted Decision-Making (Capacity) Act 2015) 2023, shall come into operation on the 25th day of May 2023.

(2) These Rules shall be construed together with the Rules of the Superior Courts.

(3) The Rules of the Superior Courts as amended by these Rules may be cited as the Rules of the Superior Courts 1986 to 2023.

2. On the date which is three years from the date on which Part 6 of the Assisted Decision-Making (Capacity) Act 2015 enters into force, the following provisions shall be deleted from the Rules of the Superior Courts:

(a) Order 67;

(b) Order 70A, rule 26(2);

(c) Order 79, rule 26 (as substituted by these Rules);

(d) Order 117A, rule 4(c);

(e) Order 134A, rules 14(1) and (2);

(f) Appendix K, Forms 1 to 18 inclusive.

3. The Rules of the Superior Courts are amended:

(a) by the substitution for rule 6 of Order 9 of the following rule:

“6. Service on a relevant person (within the meaning of section 2 (1) of the Assisted Decision-Making (Capacity) Act 2015) who is a defendant to an action, shall be in accordance with Order 15, rule 17.”;

(b) by the substitution for paragraph (i) of rule 1 of Order 11 of the following paragraph:

“(i) the proceeding relates to a child or to a relevant person within the meaning of section 2 (1) of the Assisted Decision-Making (Capacity) Act 2015 who is habitually resident in, or a citizen of, Ireland;”

(c) by the substitution for rule 1 of Order 12 of the following rule:

“1. Appearances shall be entered in the Central Office, Four Courts, Dublin, except in the case of minor matters, when the appearance shall be entered in the Office of Wards of Court, or except as otherwise provided in these Rules.”;

(d) by the substitution for rule 1 of Order 13 of the following rule:

“1.(1) Where no appearance has been entered, within the time allowed, to a summons or other originating document, for a defendant who is a child, the plaintiff shall, before further proceeding with the action against the said defendant, apply to the Master for an order that some proper person be assigned guardian ad litem of such defendant by whom he or she may appear and defend.

(2) Where no appearance has been entered, within the time allowed, to a summons or other originating document, where the plaintiff is aware or ought to be aware that the defendant is a person who lacks capacity to make the decisions necessary to conduct proceedings, within the meaning of section 3 of the Assisted Decision Making (Capacity) Act 2015, the plaintiff shall, before further proceeding with the action against the said defendant, apply to the Court for directions under Order 15, rule 17.”;

(e) by the substitution for rule 17 of Order 15 of the following rule:

“17.(1) In this rule, the “2015 Act” means the Assisted Decision-Making (Capacity) Act 2015 , and expressions used have the meanings assigned to them by the 2015 Act.

(2) Where a decision-making representation order in respect of a relevant person authorises a decision-making representative to institute, prosecute or defend proceedings, the decision-making representative may institute, prosecute or defend such proceedings, and service of such proceedings on the decision-making representative shall be good and sufficient service.

(3) Where notification of lack of capacity has been accepted in respect of a registered enduring power of attorney made by a relevant person as the donor, which power includes authority to act on the donor’s behalf in relation to the institution, prosecution or defence of proceedings, the attorney may institute, prosecute or defend such proceedings, and service of such proceedings on the attorney shall be good and sufficient service.

(4) Where a registered enduring power under the Act of 1996, made by a relevant person as the donor, includes authority to act on the donor’s behalf in relation to the institution, prosecution or defence of proceedings, the attorney under the Act of 1996 may institute, prosecute or defend such proceedings, and service of such proceedings on the attorney under the Act of 1996 shall be good and sufficient service.

(5) Where a registered co-decision-making agreement in force in respect of an intending party or party to proceedings as the appointer provides for the making jointly by the appointer and a co-decision-maker of decisions concerning proceedings, the originating document or defence, and each subsequent document delivered on behalf of that party in such proceedings shall state that the decision to issue and deliver same was made jointly by the appointer and co-decision-maker.

(6) Where any issue arises as to, or arising from, the capacity of any adult party to proceedings, the Court may, of its own motion having heard the parties, or on the application by motion on notice of any party, or person sufficiently interested, make such orders or give such directions concerning the further conduct of the proceedings as are necessary in the interests of justice.

(7) A ward of court may sue or defend by his or her committee.”;

(f) by the substitution for rule 21 of Order 15 of the following rule:

“21.(1) In all causes or matters to which a party is a child, any consent as to the mode of taking evidence or as to any other procedure shall, if given with the consent of the Court by the next friend, guardian or guardian ad litem of the child, be of full force and effect.

(2) In all causes or matters to which a party is a relevant person (within the meaning of section 2 (1) of the Assisted Decision-Making (Capacity) Act 2015), any consent as to the mode of taking evidence or as to any other procedure shall, if given with the consent of the Court by the person entitled to conduct or defend the proceedings in accordance with Order 15, rule 17, be of full force and effect.”;

(g) by the substitution for rule 35 of Order 15 of the following rule:

“35.(1) Notice of a judgment or order served pursuant to rule 31 on a child shall be served in the same manner as an originating summons in an action. At any time during the proceedings under any such order, the Court may require a guardian ad litem to be appointed for any child who has been served with notice of such order.

(2) Notice of a judgment or order served pursuant to rule 31 on a relevant person (within the meaning of section 2 (1) of the Assisted Decision-Making (Capacity) Act 2015) shall be served in accordance with Order 15, rule 17. At any time during the proceedings under any such order, the Court may proceed in accordance with Order 15, rule 17 in respect of a relevant person who has been served with notice of such order.”;

(h) by the substitution for rule 13 of Order 19 of the following rule:

“13. Every allegation of fact in any pleading, not being a petition, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against a child, or a relevant person (within the meaning of section 2 (1) of the Assisted Decision-Making (Capacity) Act 2015).”;

(i) by the substitution for rule 10 of Order 22 of the following rule:

“(1) In any cause or matter in which money or damages is or are claimed by or on behalf of a ward, a child, or a person in respect of whom a decision-making representation order has been made under section 38 (2)(b) of the Assisted Decision-Making (Capacity) Act 2015 and is in force, suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into Court, either before or at or after trial, shall, as regards the claims of any such ward, child or person, be valid without the approval of the Court.

(2) No money (which expression, for the purposes of this rule, includes damages) in any way recovered or adjudged or ordered or awarded or agreed to be paid in any such cause or matter in respect of the claims of any such ward, child or person, whether by verdict or by settlement, compromise, payment into Court or otherwise, before or at or after the trial, shall be paid to the plaintiff, or to any person on behalf of the plaintiff, unless the Court shall so direct.

(3) All money so recovered or adjudged or ordered or awarded or agreed to be paid shall be dealt with as the Court shall direct, and the said money or any part thereof may be so directed:

(a) in the case of a child:

(i) to be paid into the High Court and to be invested or otherwise dealt with there; or

(ii) to be paid into or transferred to the Circuit Court of the district in which such plaintiff resides, or such other Circuit Court as the Court may think fit, or

(b)...