A mentally ill man found to lack capacity to advance a legal challenge alleging his deceased father failed to properly provide for him in his will is to have his case progressed by a decision-making representative.
In an important judgment concerning the application of the Assisted Decision-Making (Capacity) Act to issues of litigation capacity, Judge John O’Connor found the man lacked such capacity and appointed a decision-making representative (DMR) in respect of his litigation.
In a judgment issued on Wednesday, the judge, who manages applications under the Act in Dublin Circuit Civil Court, set out his reasons for those orders, made last December.
The man instructed solicitors in early 2023 to take proceedings under the Succession Act alleging his father failed to make proper provision for him either in his will or during his lifetime.
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The man’s circumstances in life have been “difficult”, the judge said. He had not been in regular employment and spent time in hospital having been diagnosed with bipolar disorder.
There had been “productive” attempts to settle his litigation, subject to court approval but, before any settlement could be concluded and ruled on by the court, the man had ceased to communicate with his solicitors.
It transpired he had been hospitalised for a long period, initially as an involuntary patient and later as a voluntary one.
His solicitors were in contact with hospital staff, including his treating consultant and medical social worker, but he refused to engage for the purpose of a capacity assessment.
He was adamant the court case was his personal matter and he did not want to discuss it.
His solicitors had sought to adjourn his litigation pending the bringing of a capacity application to court.
Barrister Doreen Shivnen, representing the man, advanced an application for the appointment of a DMR to protect his interests and to ensure, in line with section 8.7 of the Act, that his will and preferences would be respected in the Succession Act litigation and his property and affairs would be preserved for his benefit.
The man was formally advised of the DMR application but did not respond. An independent solicitor with expertise in capacity issues was appointed to visit him so his will and preferences could be represented, but he declined a visit and told her, inter alia: “I want everyone to go away and I don’t want the money.”
The judge heard evidence from that solicitor and the man’s treating consultant.
The consultant said the man denied he had instructed solicitors and said he did not trust them. The consultant said his “educated guess” was that the man’s illness includes paranoid delusions but he could not be “definitive”.
He considered the man probably lacked capacity to weigh the issues in his litigation.
In deciding whether the man had litigation capacity, the judge considered the evidence, the provisions of the Act and the case law. The man’s understanding of the proceedings and ability to give voice to feelings and preferences were among the factors considered.
The judge concluded the man does not sufficiently understand the nature, purpose and effect of his litigation and the consequences of not engaging in it.
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