How to become a court-appointed care representative

How to become a court-appointed care representative
As people live longer, it is becoming increasingly common that they may have to live in a nursing home but may no longer have the mental capacity to make their own decisions.

As people live longer, it is becoming increasingly common that a person may have to live in a nursing home in the later years of their lives.

Under the Nursing Home Support Scheme Act 2009 (which is known to many as the Fair Deal scheme), financial support can be provided to people who need long-term nursing home care.

The scheme is operated by the Health Service Executive (HSE).

Under this scheme, a person makes a contribution towards the cost of their care, and the State pays the balance.

The scheme covers approved private nursing homes, voluntary nursing homes, and public nursing homes. Anyone who is ordinarily resident in the State and is assessed as needing long-term nursing home care can apply to the scheme.

Applications are made to your local nursing home support office on the standard application form.

There are three steps in the application process:

  • An application for a care needs assessment;
  • An application for State support;
  • An application for a nursing home loan, if required.

A person entering a nursing home may no longer have mental capacity to make their own decisions. This is fairly common when people suffer from dementia or Alzheimer’s disease.

If applying specifically for a nursing home loan, and if the applicant lacks mental capacity to do so, and an enduring power of attorney was never appointed, a court-appointed care representative can apply on behalf of the applicant.

An application to appoint a care representative can be made under Section 21 of the Nursing Home Support Scheme Act 2009.

The application, or notice of motion, with a grounding affidavit, has to be submitted to your local circuit court.

The application is heard before the county registrar.

You will have to pay a court fee for the application.

To apply to become a care representative, you would need two reports in the form prescribed by the circuit court, from two registered medical practitioners who have examined the person in need of the care representative (who is known as the respondent for the purposes of the court proceedings).

This is known as a Form 4, or assessment of capacity report.

The order of entitlement as to who can apply to be appointed a care representative is as follows:

  • A spouse
  • a child
  • a relative

Where someone has a greater, or equal right as you, to be appointed a care representative, you will have to obtain a letter of consent to your appointment.

The originating notice of motion and grounding affidavit (and any exhibits) have to be served, together with a form for reply to the application, personally on the respondent.

They also have to be served on each person having an equal or greater priority of right to apply to be a care representative, who has not given consent in writing to the appointment or application.

They must be served not later than 14 days before the hearing or return date of the originating notice of motion, unless notice has been dispensed with by the court.

Any replies by the respondent, or by a person having an equal or greater priority of right to apply to be a care representative, have to be sent to the county registrar at least seven days before the return or hearing date, and are sent by the court to you before the application is heard.

The application is then made, before the county registrar in the circuit court, and the documents will be checked to see that they are in order. You would have to make a declaration under oath to the county registrar regarding service of the documents on the person requiring care. If the county registrar is satisfied that all matters have been attended to, an order will be made appointing you as the care representative.

If there is an objection to the application, it will be transferred to the judge’s list by the county registrar, and a judge will hear it.

In order to make the application, it is not a necessity to engage a solicitor.

However, it is important that the proofs are right, in order for the application to succeed, and it would be worthwhile obtaining legal advice from a solicitor.

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