I, David Barniville, President of the High Court, hereby issue the following Practice Direction in respect of applications pursuant to Part 6 of the Assisted Decision-Making (Capacity) Act 2015 (as amended) (the “Act”) and the documents to accompany all such applications which will come into force on 3 June 2025 and will replace Practice Direction HC 120 with effect from that date. This Practice Direction is issued in accordance with the general authority of the President of the High Court and s.11(12) and (13) of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020.

Purpose of this Practice Direction

1. The purpose of the Practice Direction is to amend and replace Practice Direction HC 120 and to amend and simplify the procedural requirements for applications for discharge from wardship under Part 6 of the Act. The main change is that a functional capacity assessment in respect of a relevant person will now also be accepted from a Registered Medical Practitioner (as that term is defined in s.2(1) of the Act) as well as from the Court’s Medical Visitor.  The precise requirements for service of the application papers on the relevant person are now clearly specified by reference to Order 67, Rules 94 and 95 RSC. The application papers will also only now have to be served once on the relevant person

Applications for Discharge

2. All applications for discharge from wardship shall be by Notice of Motion, grounded on an Affidavit sworn by the applicant or the applicant’s solicitor and service of those documents must be evidenced by an Affidavit of Service.

Service of Applications

3. Service of the Notice of Motion, Affidavit(s) and exhibits on the relevant person must be affected personally on that person by a solicitor and must be done in compliance with the requirements contained in Order 67, Rules 94 and 95 RSC.

Form WOC2

4. All applications for discharge from wardship shall be accompanied by Form WOC2 (in the form contained in the appendix hereto.)
5. Form WOC2 must be completed for all discharge applications under Part 6 of the Act and should be filled in following the formatting and layout prescribed in the Form.

Discharge with no Assistance or with Decision-Making Assistance

6. The Affidavit grounding applications for discharge or discharge with a Decision-Making Assistant and seeking a declaration under s. 55(1)(a) shall contain:

(a)       Averments

The will and preference of the relevant person and other relevant information as mandated by s. 8(7)(b) and (c) and the views of anyone covered by s. 8(8), if relevant. 

(b)       Exhibits

1. Medical Visitor’s Report or Report of the Registered Medical Practitioner containing the functional capacity assessment;
2. Schedule of Assets; and
3. Medical Report of the applicant (if applicable).

Discharge with Co-Decision-Maker

7.  The Affidavit grounding applications for discharge with a Co-Decision-Maker (hereafter, a “CDM”) and seeking a declaration under s. 55(1)(b)(i) shall contain:

(a)        Averments

1. The will and preference of the relevant person and other relevant information as mandated by s. 8(7)(b) and (c) and the views of anyone covered by s. 8(8), if relevant; and 
2. The obligations of the decision supporter under s. 8(7) and (8) of the Act to be included the grounding Affidavit. 

(b)       Exhibits

1. Medical Visitor’s Report or Report of the Registered Medical Practitioner containing the functional capacity assessment;
2. Schedule of Assets;
3. Medical Report of the applicant (if applicable);
4. Proposal for the future management of assets to be remitted to the relevant person (if applicable);
5. Any existing Enduring Power of Attorney (“EPA”) made under the Powers of Attorney Act 1996 (the “1996 Act”); and
6. Any Advance Healthcare Directive.

Discharge with Decision-Making Representative

8. The Affidavit grounding applications for discharge with a Decision-Making Representative (hereafter, a “DMR”) and seeking a declaration under s.55(1)(b)(ii) shall contain:

(a)        Averments

1. The will and preference of the relevant person and other relevant information as mandated by s. 8(7)(b) and (c) and the views of anyone covered by s.8(8), if relevant;
2. The obligations of the decision supporter under s.8(7) and (8) to be included in the grounding Affidavit; 
3. The grounding Affidavit may propose a DMR and, if so, the Affidavit should deal with the suitability of the DMR with regard to the provisions of s. 38(5);
4. Each of the matters identified in s. 38(5)(a)-(f) will also need to be dealt with, as will the provisions of s.38(6);
5. The grounding Affidavit should specify whether or not to the knowledge of the deponent there exists any EPA made under the 1996 Act and/or any Advance Healthcare Directive and, if any exists, it should be exhibited and the deponent will have to deal with these documents in light of the provisions in s. 38(3) and (4); and
6. Where there is no suitable person willing to act as a DMR, the grounding Affidavit should request the Court to ask the Director of the Decision Support Service (the “Director”) to nominate two or more persons from the panel established under s.101. 

(b)       Exhibits

1. Medical Visitor’s Report or the Report of the Registered Medical Practitioner containing the functional capacity assessment;
2. Schedule of Assets;
3. Medical Report of the applicant (if applicable); and
4. Proposal for the future management of assets to be remitted to the relevant person (if applicable).

Affidavit of Service

9. The Affidavit of Service must include averments:

1. As to service on the relevant person, the committee and any other person required;
2. An explanation of the application and implications; and
3. The response and reaction of the relevant person. 

Where Dispute of Capacity

10. If the capacity of the relevant person is disputed the following should be provided:

1. All of the proofs identified in the context of a declaration under s. 55(1)(a) above;
2. The medical report containing a functional capacity assessment procured by the party who disputes the capacity finding of the Medical Visitor or the Registered Medical Practitioner, as the case may be;
3. If the applicant’s medical evidence is to the effect that the relevant person has no capacity (or has co-decision-making capacity but there is no available CDM), the   grounding Affidavit may propose a DMR, in which case the Affidavit should deal with the suitability of the DMR having regard to the provisions of s. 38(5). Each of the matters identified in s.38 (5) (a)-(f) will need to be dealt with, as will the matters refers to in s.38.(6).

Booklet for Hearing

11. Two weeks prior to the date allocated for the hearing of the application, a booklet for the hearing must be lodged with the Court electronically and in paper form in the Wards of Court Office.
12. The documentation in the booklet for hearing must appear in the following order:

1. Form WOC 2;
2. Signed statement from the proposed representative confirming that they understand and will act in accordance with their obligations as identified at s. 38(11) and that they are not a person to whom s. 39 applies; 
3. The Notice of Motion;
4. The grounding Affidavit and exhibits;
5. The exhibits should include;
   1. The Court’s Medical Visitor’s report or report of the Registered Medical Practitioner containing the functional capacity assessment in respect of the relevant person;
   2. Schedule of assets; and
   3. Any proposal for the future management of assets to be remitted to the relevant person (if applicable);
6. A draft Order;
7. Any other relevant Affidavits;
8. Affidavit(s) of Service;
9. The most recent Order(s) made in the proceedings; and
10. The most recent medical reports and any other relevant documents not already referred to.

13. This Practice Direction will come in to force on 3 June 2025 and will remain in force until further notice.

Mr. Justice David Barniville
President of the High Court
21 May 2025

Appendix:

To accompany all High Court Wardship Discharge Applications

• Form WOC2: To accompany all High Court Wardship Discharge Applications (PDF)
   
• Form WOC2: To accompany all High Court Wardship Discharge Applications (Word)