Making an application to court for a decision-making representation order takes a number of steps. This includes completing a form and getting a report from a doctor or another healthcare professional. There may be one or more hearings in court as part of this process.
The applicant applies for the court order. They may need a lawyer to help them to complete these steps.
The person the application is about may choose to have their own lawer and may be entitled to legal aid. They may also choose to be assisted by another person who is approved by the court to help them to understand and participate in the process.
This process is defined in the Court Rules which can be found through this link to the Courts Service website, along with forms, templates and information about fees.
Before applying to court
Before you make an application to court, you must check that there is no other option that would be less intrusive on the person.
You must make sure all steps have been taken to provide the person with support. This includes through arrangements such as a decision-making assistance agreement, or a co-decision-making agreement, or other informal supports that would allow the person to keep control of those decisions in their life.
If all other options have been considered and you still believe you need to make an application to court, you may need to consider whether there is anyone in the person's life who would be suitable and willing to act as decision-making representative.
If the person needs help with decisions about their property and affairs, whether someone is suitable to act as decision-making representative will depend on how big and complex the person's property and estate is, and the type of expertise needed to manage it.
Applying for a decision-making representation order – step by step
This section tells you about the steps to take if you want to make an application to court for a decision-making representation order. This process is defined in Court Rules and the following section explains the Rules, but should not be regarded as instructions, or an exhaustive list.
1. Check that the applicant is suitable to make the application
There is a list of the people allowed to apply to court for a declaration about a person’s capacity. A declaration of capacity declares whether the person is able to make certain decisions. The people who can apply for a declaration include:
- the person themselves
- the Decision Support Service
- the person's spouse, civil partner or cohabitant
- the person's adult child
- an existing decision supporter for the person
Any other adult with a genuine interest in the welfare of the person can make an application to court, but they must get the permission of the court first.
2. Complete the Capacity Application form
The person making the application, or their lawyer, must apply to court by an originating application. There is a specific application form called a Capacity Application. This includes information about:
- who is making the application
- their connection to the person
- the benefit to the person in making the application
- why other options cannot be taken
- the proposed decision-making representative if a suitable person is being proposed
- any existing decision support arrangements
3. Complete other documents required by the court
Other documents required as part of the court application include:
- an affidavit (a sworn statement) by the person making the application
- a report by a doctor or another healthcare professional about the person's capacity
- a report by any other expert or person that might be relevant or helpful to the court
4. Give notice of the application
The person making the application must tell certain people about the application they are making to court. This includes:
- the person the application is about
- the person's spouse, civil partner or cohabitant
- the person's adult child
- an existing decision supporter for the person
5. Attend court hearings
The court may hold hearings to decide what to do about the application. The court will first decide whether to make a declaration that the person lacks capacity to make one or more specific decisions.
The court will then decide whether to appoint a decision-making representative to make certain decisions on behalf of the person.
When the court makes a decision-making representation order
If the court decides to appoint a decision-making representative, they will decide what decisions they will make on behalf of the person and what powers and duties they will have. The court order will be as limited as possible in duration and the different areas of the person's life that it covers.
The court will consider the wishes of the person and whether they know someone suitable that could fulfil the role. If there is no suitable person, the court may appoint an independent decision-making representative from our panel.
After the decision-making representation order is made, a copy of the order will be sent to us. We will add the order to a Register which may be searched by persons and organisations to have a good reason to do so.
Other orders the court can make
If an urgent issue is identified as part of an application to court and the court has reason to believe the person lacks capacity in relation to that issue, the court may make an interim order.
If the court declares that a person lacks capacity to make certain decisions, they may make an order, in effect making the decision on behalf of the person. This is called a decision-making order.
Having reviewed a Capacity Application the court may decide that a person doesn’t need a decision-making representative. The court may decide that the person is capable of making their own decisions. The court may also declare that the person may be able to make decisions if they had the support of a co-decision-maker. You can get information on this at the link co-decision-maker.
Find out more
You can read more about decision-making representation orders in our guidance material, which can be found at the link in our Resources section. The material includes important information about:
- The things you need to consider before making an application to court
- The types of decision that may be included in a decision-making representation order
- What a decision-making representative can and cannot do and what their responsibilities are
- What happens after the decision-making representation order is made
- Steps for applying to the court for a decision-making representation order
- Different orders the court can make
We have developed a simple leaflet that outlines the reporting requirements of a decision-making representative. You can get the leaflet by clicking on this link Reporting requirements of a decision-making representative
Certain decisions are prohibited from forming part of a decision-making representation order. To read more about this, please click on this link Information Note about Section 138 of the Assisted Decision-Making (Capacity) Act 2015 (as amended
You can find out more information about the process for making a court application and associated fees on the link Courts Service website.
You can find out more about legal aid at the link Legal Aid Board website.