When your parent cannot sign: the court route to the nursing home loan

The wall families hit

Fair Deal has two parts. The main application, for State support, can be made by a family member on behalf of a parent who can no longer sign. The nursing home loan cannot. Taking the loan means agreeing to a charge on the home, and only three people can agree to that: the person themselves, someone holding a registered enduring power of attorney they made while they still had capacity, or a decision-making representative appointed by the Circuit Court.

If there is no enduring power of attorney, the court route is the only way to the loan. Until 2023 this was called a “care representative” order. The Assisted Decision-Making (Capacity) Act 2015 replaced it with a capacity application to the Circuit Court, which appoints a decision-making representative. Anyone appointed a care representative before the change keeps their powers.

Who can do what

The HSE lists the specified persons as a spouse or partner, a child over 18, a registered doctor, nurse or social worker, a ward of court committee, an attorney under a registered enduring power, or a decision-making representative.

Do this today, before the court

1. Check for an enduring power of attorney. Ask the family solicitor, look through the person’s papers, and ask the Decision Support Service whether one is registered. If one exists but was never registered, register it now; that is faster than any court application.
2. Submit the main Fair Deal application now, signed by a son, daughter, spouse or partner as a specified person. State support can be approved while the loan waits. Funding is never backdated, so every week counts.
3. Ask the GP for a capacity report. The court needs a report from a doctor or healthcare professional on the person’s capacity to make the specific decisions. It is usually the slowest part, so ask first.
4. Decide who will be the representative. One person, usually the son or daughter already dealing with the HSE. They will keep records and report to the Decision Support Service once appointed.
5. Choose a solicitor or do it yourself. The court forms are written for the public and the HSE publishes the exact wording to use. Most families use a solicitor because the affidavits, service and hearing are unfamiliar. Ask for a fixed price before you start.

What the court needs: your checklist

Tick things off as you gather them. The list is saved on this device only.

• Confirmation that no enduring power of attorney exists, or that the one that exists does not cover property. Ask the family solicitor and the Decision Support Service.
• Capacity report from a registered medical practitioner or healthcare professional, saying what the person can and cannot decide, and that they were given support to decide for themselves first.
• Form 55A, the Capacity Application. Names the circuit and county, the person, the applicant, the declarations sought and the decisions the representative will make. Court fee €130.
• Form 55B, the Statement of Particulars. Your connection to the person, why the application benefits them, any existing arrangements, and a full statement of their assets, liabilities, income and spending. No fee.
• Form 55I, the grounding affidavit, sworn before a solicitor or commissioner for oaths, confirming what is in the other forms and exhibiting the capacity report. Court fee €15.
• The HSE wording in section C of Form 55A, so the order covers Fair Deal, the nursing home loan and, for a farm or business, the family successor. See below.
• Figures for the statement of assets: bank and credit union balances, pensions and other income, the home’s value (an auctioneer’s letter will do), any other property, and debts. Much of this is also needed for the Fair Deal form, so gather it once.
• Names and addresses of the notice parties: the person’s spouse or partner, adult children, and anyone already appointed to support them. The Director of the Decision Support Service is also notified.
• Lodge the original forms and copies in the Circuit Court office for the county where the person lives. The office gives a hearing date and returns the copies for service.
• Serve the person themselves in person, with a blank Form 55C so they can reply, and explain the application to them. Serve the notice parties by registered post. All at least 21 days before the hearing.
• Form 55D, the affidavit of service on the person (€15), and an affidavit of service for each notice party (€15 each), filed at least four days before the hearing.
• The hearing. Held in private. The judge may want to hear from the person, and can make the declaration and appoint the representative the same day.
• Send the order to the HSE with the nursing home loan section of the Fair Deal form, and register with the Decision Support Service as the representative.

Court fees are those published by the Courts Service and may change. If you are not a spouse, partner, parent, child or sibling of the person, or an existing decision supporter, you first need the court’s consent to apply (Form 55G, €60).

The wording the HSE asks you to use

The HSE publishes the exact text to paste into section C of Form 55A so that the court order covers everything Fair Deal needs. If the order does not cover a decision, the HSE cannot act on it and you are back in court. Copy the parts you need and fill in the blanks.

A. For any Fair Deal matter (always include)

An Order under Section 38(2)(b) of the Assisted Decision-Making (Capacity) Act, 2015, as amended, appointing _____________________ to be a decision-making representative for _______________________ (“the Relevant Person”) for the purposes of making one or more of the following decisions on behalf of the Relevant Person, in relation to his or her personal welfare or property and affairs, or both:

i) to take necessary actions in connection with obtaining of all financial information in respect of the Relevant Person from any institution, financial or otherwise, in respect of assets or liabilities of the Relevant Person.
ii) to act in relation to any matter under the Nursing Homes Support Scheme Act, 2009 (“the 2009 Act”) in connection with any application, review, appeal or the giving of consent under Section 7(13);
iii) to provide all relevant information and assistance to Health Service Executive in connection with any application, review or appeal made in respect of the Relevant Person under the 2009 Act;
iv) to give notice to Health Service Executive of any material change in circumstances of the Relevant Person in accordance with Section 24, 24A and 25 of the 2009 Act;
v) Liberty to Apply

B. State support

vi) to make an application under Section 7 of the 2009 Act for a care needs assessment;
vii) to make an application for State support under Section 9 of the 2009 Act.

C. The nursing home loan

viii) to make a request for payment of ancillary State support (“Nursing Home Loan”) under Section 16(4) of the 2009 Act.
ix) to consent to the creation of a charge under Section 17(2) of the 2009 Act charging the interest of the Relevant Person in the property known as ________________________________________________ in the city/county of _________________, (“the Property”) with a secured amount.
x) to take necessary actions in connection with:-
- the application for a Nursing Home Loan;
- the making of a charging order under Section 17(2) of the 2009 Act by Health Service Executive charging the interest the Property, with a secured amount;
- the registration of such charging order in the Land Registry or the Registry of Deeds (including the perfection of the title of the person to whom the application relates).

Part D, for appointing a family successor to a farm or business, is on the HSE’s page: How to apply for Fair Deal, hse.ie.