High Court orders appointment of guardian ad litem for incapacitated respondent in divorce proceedings due to attorney's inaction.

APPROVED

REDACTED

FOR PUBLICATION

[2025] IEHC 538

THE HIGH COURT

FAMILY LAW

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996, AS AMENDED BY THE FAMILY LAW ACT 2019

RECORD NO. H.M 2024 183

BETWEEN

T OS

Applicant

-AND-

C OS

Respondent

Ex-tempore judgment of Ms. Justice Nuala Jackson delivered on the 20th March 2025.

INTRODUCTION

1. This morning I am considering the appropriate manner in which the Respondent, an incapacious person, should be facilitated to participate and have appropriate decisionmaking support in these proceedings. I want to thank Ms. Slattery BL and Ms. Dowd BL for their most informative joint submission. I appreciate the speed at which these were proffered to the court. The Respondent in this case executed an Enduring Power of Attorney (‘EPA’), which was signed on the 12th January 2017, and was signed under the provisions of the then prevailing Powers of Attorney Act 1996 (‘the 1996 Act’), as amended. That Power of Attorney was then registered on the 16th of January 2020.

2. I do note that the notice requirements under the 1996 Act are very different to the notice requirements under the Assisted Decision-Making Act, 2015 (‘the 2015 Act’). I note that and reflect on the fact that the 1996 Act had a notice requirement, in terms of notification both in terms of execution and in terms of registration, of two persons. In this instance, the two persons to whom notification was given were the Applicant husband (however, it would appear on the information before me that the parties had been living separate and apart for some time at that juncture) and a child, sibling of the Attorney thus appointed. I would note that these two persons were also indicated in the enduring power as persons who should be consulted for his/her/their views in relation to the donor’s wishes and feelings and as to what would be in the donor’s best interests.

To some degree, this contra-indicates a “living separate and apart” but, of course, I do realise that the execution of the power was some eight years ago. I would also have regard to the fact that the notice position in the 2015 Act, as set out in ss. 61 and 68(3)

of that legislation, are considerably different. In the event that this enduring power was executed and indeed registered under the new regime, the notification process would be much more extensive than was the case under the 1996 Act. However, for the avoidance of all doubt, I want to be clear that there is no issue in relation to the validity of the EPA in this case. It is clearly executed and registered in accordance with the provisions of the 1996 code.

3. As the terms of Clause 4 of the explanatory memorandum which relates to this EPA indicate, if you give your attorney or attorneys a general power in relation to all your property affairs, he/she/they will be able to deal with your money, your property and may be able to sell your house. I would also, in relation to the explanatory memorandum, draw attention to the provisions of Clause 16 and Clause 18.

4. In that regard, I would note that, in so far Clause 16 is concerned, it makes it quite clear that there are circumstances where the Attorney may well be benefitting from the assets of the donor, but the constraints and the curtailments on that are very clearly set out. I would also draw attention to Clause 18, which represents the fiduciary relationship which exists between the Attorney and the donor and, obviously, that brings us into the general law in relation to fiduciaries and conflict of interests. I haven’t been addressed by Counsel in relation to that and I think it would be most inappropriate for the court to embark on its own research in relation to matters as complex as this and I do apologise to Counsel for the Respondent’s Attorney because I did address her in relation to conflict on the last occasion in circumstances where it was a new matter in respect of which she could not be expected to be fully prepared in the context of the application that was before the court. The issue of fiduciaries and conflicts of interest was something which was discussed by Charleton J. in Greene v Coady [2014] IEHC 38 and, indeed, in voluminous other cases, but in terms of the fiduciary duty and conflicts of interests, I would refer to paragraph 5 of that decision and the reference that the learned judge makes to Bray v Ford [1896] AC 44 and the manner in which the fiduciary duty and conflicts of interest interplay.

5. It is quite clear that the Power of Attorney in this case granted a general power. No restrictions on that general power were imposed. In those circumstances, leaving aside personal care decisions which clearly are also incorporated within the Power of Attorney in this instance, I do not believe any of those personal care arrangements as set out (where I should live, with whom I shall live, with whom I shall see), inform us at all in relation to the matter of divorce litigation. Therefore, we are in the situation where there was a general power bestowed in relation to “all my property and affairs.”

Property is not defined under the Act, but I think it is quite clear that property is not the question that is engaged here, rather it is affairs.

6. “Affairs” is defined in s.4 of the 1996 Act as meaning “business or financial affairs of the donor”.

7. The question then arises as to the scope of the authority of the Attorney and whether that authority allows her to engage in the conduct of divorce proceedings. Again, I am very thankful to the parties for the joint submissions of counsel. The first step here is the reconciliation between s.6(1) and s.6(2) of the 1996 Act. I note that in paragraphs

33 to 35 of the joint submissions this is dealt with, and s.6(1) is discussed, i.e. to act on the Donor’s behalf in relation to all or a specified part of the donor’s property and affairs. It goes on to reflect the fact that the instrument grants a general authority in that regard, and it allows the Attorney to do anything that the Donor could lawfully do.

Paragraph 35 of the submission says, “this broad language suggests that if the EPA grants a general authority, it would likely encompass a power to conduct legal proceedings as these fall within the realm of affairs.”

8. Unfortunately, I cannot agree with the submissions in that regard. To so construe the provision is to entirely ignore the definition of “affairs” which is limited to business and financial affairs. It is my view that the areas of the Donor’s life over which the Attorney has power is set out in s.6(1) which is namely her business and financial affairs. Subsection (2) of s.6 then indicates what the donee can do in those areas, namely he can do everything that the Donor could lawfully do by attorney. Section 6(2) says that within the scope of what you can do, namely your business and financial affairs, you have a broad power. Indeed, the situation here is that within your business and financial affairs, you can conduct legal proceedings because that is something which the Donor could lawfully do by attorney in relation to business and financial affairs and that is absolutely clear from the authorities in Irish Bank Resolution Corporation Limited (In Special Liquidation) v Fingleton [2025] IESC 8 and in Elliot v Stamp [2008] IESC 10. Both of these cases involve litigation pertaining to the business and financial affairs of the parties’ concerned and the court agreed that this is something that can be lawfully done via attorney.

9. What about the current litigation? The current litigation is for divorce. It is of an entirely different nature. Divorce is a status issue, in addition to being a financial issue. Can divorce litigation be said to relate to the “business and financial affairs” of the donor?

In my view, divorce litigation is an issue of status with ancillary, inter alia financial, relief being possible. In certain instances, a person may be incapacitated and the ancillary reliefs under consideration might relate to their children which would clearly not be a business or financial matter, if the circumstances were that there are minor children of an incapacious person. Divorce proceedings have a status implication, they have ancillary reliefs (which are financial) and they have other ancillary reliefs (which may not be financial). To some extent, Irish divorce has a structure which puts you in somewhat of a never-ending loop – a kind of domestic equivalent of the renvoi doctrine.

You can have no divorce without such ancillary reliefs as are necessary to constitute proper provision (unless such provision otherwise exists – s.5(1) of the Family Law (Divorce) Act, 1996 (‘the 1996 Act’)), but you cannot make ancillary reliefs until you grant a divorce. In any event, in my view, there are two different aspects to the litigation;

there is a change of status and, as in this case, there is the issue of ancillary financial relief to be considered. It is my determination that the general power of attorney given clearly governs the latter, but I do not believe that it embraces the former. There is clear authority that a general power gives a power to litigate in relation to property and affairs as defined. But what about litigation pertaining to status? The status litigation inherent in divorce is not relating to property, business or financial affairs.

10. I refer to paragraph 58 of the submissions which states:

“There is nothing in the Act that explicitly prohibits an attorney under an EPA from representing a donor in divorce proceedings. The question is whether the power is granted, not whether it is forbidden.”

I find some contra-indication between the first and second sentence on that submission.

What power was given here? The power given here was the power to deal with the financial and business affairs of the donor and in that context the donor can do anything that can be lawfully done by attorney. The acts which the donor can lawfully do cannot be interpreted to extend to areas outside the scope of the power granted namely outside the scope of business and financial affairs and property and personal welfare as specified.

11. So where do we go from there? Before the 2015 Act, a guardian ad litem would have been appointed to represent the Respondent in such proceedings. Is this still the position? I have had regard to s.138 of the 2015 Act and the submissions in this regard.

What does s.138 of the 2015 Act mean? It is submitted, that it is some type of a legislative oversight that derived from the Law Reform Commission and from the confusion between Ireland and England in terms of the law of divorce. It has been submitted that consent is not relevant to divorce in Ireland and that you do not require capacity to be divorced in Ireland, whatever about and as distinct from capacity to seek a divorce. So, what does s.138 of the 2015 Act mean? The submissions provided a most interesting analysis of the history of the 2015 Act and the antecedents of s.138. I must endeavour to construe s.138, and I am essentially being asked to determine that it is meaningless in terms of divorce in Ireland, that it derives from an extrapolation of English legislation and a misunderstanding of the nature of divorce in Ireland which does not involve consent. In that regard, I refer to paragraph 21 of the submissions and I have had particular regard to paragraphs 22 - 24 and following of the submissions:

“21. In Irish law, nothing in Article 41.3.2° of the Constitution of Ireland nor section 5 of the Family Law (Divorce) Act 1996, as amended, prescribes that a Respondent to a divorce petition must consent to the divorce decree.

22. The Court may grant a decree of divorce if it is satisfied that the following criteria are met:

(a) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least two years during the previous three years,

(b) there is no reasonable prospect of a reconciliation between the spouses, and

(c) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family.

23. Questions of consent and capacity are therefore not relevant to the determination of divorce proceedings, similar to the situation in D v S and in contrast to the circumstances in Mason v Mason. Section 138 of the 2015 Act does not therefore impact the situation of Respondents to divorce proceedings in Ireland.

24. It is therefore submitted that it is possible for the criteria for divorce to be met, notwithstanding the Respondent spouse lacks capacity to fully take part in the proceedings.”

12. I regret that I cannot agree with the analysis. If one looks at the analysis of the 1996 Divorce Act as set down in Paragraph 22 of the submissions, it essentially operates on the basis that if you are living apart for the requisite period and if you show an irreconcilability, then you are entitled to a divorce, subject to proper provision, which is in the scope of competence of the donee of the EPA where only financial provision arises as in the present case. So, the argument is that there are two factual matters - the living apart, the irreconcilability - and that the last part, the proper provision, is something which can be dealt within in sphere of competence of the attorney under the EPA.

13. I do not believe that the Act can be read in such a fashion. There are, in my view, four requirements in order to get a divorce in Ireland, i. Living Apart: That is something the Respondent may wish to contest, and it is not a matter relating to financial or business affairs.

ii. There is irreconcilability – which is something which a Respondent may want to contest, and it is not a matter of financial or business affairs.

iii. Proper provision being made – in my view, proper provision in that context is to be done in accordance with the s.20 principles set out. They are very clear, and it seems to me that this is something that engages the financial and business affairs of the donor. The financial affairs are very clearly within that exercise of the s.20 discretion.

iv. But there is a second discretion in the 1996 Act. If one looks at s.5 of the 1996 Divorce Act, it not only has a discretion in relation to proper provision, i.e. section 5(1)(c). There is a second discretion that comes immediately after that. If (a), (b) and (c) are satisfied, there is still no mandatory entitlement to a divorce. It says that the court “may” in the exercise of its jurisdiction conferred by the Constitution, grant a decree of divorce.

14. So, there is a second discretion. The Act does not tell us what principles are to be applied for the exercise of that discretion. If we look at s.20 of the 1996 Act, it sets out the criteria to be to be used by the court when exercising its discretion relating to the grant of ancillary reliefs, but the second discretion then arises. It says that if the court, having been so satisfied of s.5(1)(a), (b) and (c) “may in exercise of the jurisdiction conferred by Article 41.3.2° of the Constitution, grant a decree of divorce in respect of the marriage concerned” (underlining added). I am not clear as to the applicable criteria, because the 1996 Act does not tell me what the criteria are to be applied by the court in exercising that second discretion. This second discretion (the first being as to proper provision) is referenced by Jordan J. in R v M [2023] IEHC 748. There the Court stated:

15. The statutory proofs – if they can be so described – are satisfied insofar as Article 41.3.2 of the Constitution of Ireland and s.5 of the Family Law (Divorce)

Act 1996 (as amended by the Family Law Act 2019) are concerned.

16. Both the Constitution and the Act (as amended) afford to the Court a discretion on whether or not to grant a decree of divorce if satisfied in relation to the statutory proofs. Article 41.3.2 states that;

“A court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that –

(i) there is no reasonable prospect of a reconciliation between the spouses,

(ii) such provision as a Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and

(iii) any further conditions prescribed by law are complied with.

17. Section 5 of the Act (as amended) is cited above and provides that on being satisfied in relation to the statutory proofs – “the court may, in exercise of the jurisdiction conferred by Article 41.3.2 of the Constitution, grant a decree of divorce in respect of the marriage concerned.”

Jordan J. continued:

“20. One can envisage that a discussion might ensue in some instances as to the nature and extent of the discretion afforded to the Court if it is satisfied in relation to the statutory proofs. An argument might be advanced that the word may in Article 41.3.2 and in s.5 of the Act ought to be construed as shall in the event that the Court is satisfied of the matters recited at s.5(1) (a), (b) and (c).

21. Indeed it is difficult to envisage many circumstances in which a Court could refuse to grant a decree of divorce if the requirements of s.5(1)(a), (b) and (c)

are satisfied. Put another way, would a Court be entitled, in such circumstances, to force two spouses to remain married.

22. The Court does not propose to decide the issue of whether or not “may” in Article 41.3.2 and in s.5 of the Act ought to be construed or interpreted as “shall”. The Court does not propose to decide this issue because it is possible that circumstances would arise in a case such that a Court would consider that it had an obligation to exercise its discretion and refuse to grant the decree of divorce sought even if the evidence did appear to satisfy the statutory requirements. It could perhaps happen that issues of lack of capacity might arise

- or an intent to conspire to perpetrate a fraud on the Court or on the Revenue Commissioners.

23. The Court proposes to approach the issue on the basis that a discretion does exist – and that the question is whether or not any good reason exists to justify the discretion being exercised in such manner as would result in the decree of divorce being refused.”

14. Clearly this discretion is not a matter relating to the financial and business affairs, exclusively. They may well be relevant to the exercise of that discretion, but it is not the case that they would be the only matter relevant to the exercise of that discretion.

Therefore, in my view, I believe that the situation is that the capacity to divorce as envisaged in s.138 must involve a capacity to progress divorce litigation with all its four elements, not simply its financial and business elements. Therefore, I think we probably are in the area of the appointment of a guardian ad litem, which would be a pre-2015 Act situation. If I am wrong, and s.138’s reference to capacity and consent in relation to divorce is not in accordance with the statutory requirements for the granting of a decree of divorce in Ireland (which essentially renders the section meaningless as regards divorce), then I am back to the position where the 2015 Act does apply, and if so, the power granted by this EPA does not deal with the status aspect of divorce and the other discretionary elements (not being financial and business), then I am in the situation where I must determine whether I have to go back to having some sort of

decision-making representative appointed? My understanding, in relation to other cases that I have dealt with, is the DSS does not deal with divorce proceedings. I have cases which regularly come in before me where people are regularly trying to register co-

decision making agreements and the DSS will not do so in the context of divorce. I do not believe, and I want to progress this case, that this is appropriate. I think it is, going about matters in the proper way, the decision-making representative which seem to be, if s.138 does not apply and the EPA does not cover it, a decision-making representative seems to be the way to go.

15. I think that there is not a conferral in this situation of an entitlement to litigate proceedings such as the present. There is a conferral of the power which has been given under the 1996 Act. So, whether it be by O.15, r.17(6) or under the inherent jurisdiction, I am of the view that it is appropriate a guardian ad litem would be appointed in relation to it. I do not, and I want to be very clear to the parties in this case and to the applicant and to the children of the parties, I may cast no aspersions. The last thing I want is to upset anybody or cause any distress. I just want to make sure that a person who lacks capacity is correctly and lawfully represented in the proceedings.

16. In relation to the guardian ad litem, I have read with interest the judgment of O’Donnell J in Health Service Executive v N.D [APUM] [2025] IEHC 86 and, in particular paragraphs 12-15 of it. I think to some degree these dicta are most pertinent to the issue of the appointment of a guardian ad litem in this matter. I am going to appoint a guardian ad litem for the Respondent herein. As to the identity of that person, I am going to let you consider this and make proposals to me, but I think you should consider such choice having regard to the dicta in the judgment of O’Donnell J, where he said, “12. These proceedings are civil proceedings in which the applicant seeks orders that engage the constitutional rights of affected persons, and where the applicant must bear the burden of proving that the orders sought are lawful, justified on the evidence and proportionate.”

While not identical, this is an analogous situation to that under consideration in these proceedings, O’Donnell J. continued,

“Nevertheless, despite being structured as adversarial proceedings, there is an inquisitorial element to the process. Even if matters are not raised by the respondent, the court must make sufficient inquiries to ensure that it is fully satisfied as to the appropriateness of the orders sought.

13.The role of a guardian ad litem in proceedings under the inherent jurisdiction of the court is of critical importance, both in terms of forming a central pillar in the legal protection for affected persons, and in terms of assisting the court by ensuring that relevant matters are brought to the attention of the court. The role of guardian ad litem differs somewhat from that of a legal representative under 2001 Act procedures. Put briefly, the task of the guardian is twofold: first the guardian must seek to ascertain as best they can the wishes and preferences of the respondent and convey those wishes to the court; and second the guardian must seek to provide an independent view to the court on the application that is under consideration. There is scope for tension between those two tasks.”

He went on to say:

“14. The court, accordingly, must be assured that the guardian ad litem is able to bring considerable expertise to the discharge of the assigned tasks. Part of the task, where appropriate, is to test not only the evidential basis for the application but also to test the legal basis for the application, and to consider if the proposed intervention is proportionate and just. For instance, even if the invocation of the inherent jurisdiction is entirely warranted, it may be the case that it would be possible and practicable to achieve the desired result of protecting the constitutional rights of the affected person by less restrictive measures than those initially proposed.”

17. I am going to appoint guardian ad litem but in circumstances where there are legal representatives before the court, in proffering a guardian ad litem to the court, I want you to have regard to paragraphs 12-14 of the judgment of O’Donnell J because of think they inform us in relation to it.

18. Clearly on the terms of the Enduring Power, there is a fiduciary duty between the attorney and donor. In all the circumstances, I am not going to go into the area of conflicts or perceived conflicts of interest because I believe it would be inappropriate for the court to address that matter where Counsel has not had an opportunity to do it.

19. It is my view in all the circumstances that particular regard must be had to the independence of the guardian ad litem in that case. I do so having regard to particular circumstances here. What the court is being asked to do here is very different to a consent agreement between two parties with full capacity. In such situation, both parties, with capacity, set out their stall and the court takes a view. This is different to a situation where parties inform the court of their agreement because in that circumstance, constitutionally recognised spousal autonomy arises (Gorry v Minister for Justice and Equality [2017] IECA 282 (Hogan J.)). Where spouses agree, huge regard must be given to such agreement, a matter discussed by Jordan J. in the R v M case, referenced previously, in relation to spousal autonomy in this context. This is not such a case.

20. It is also different to a case where a respondent decides not to participate. If an applicant issues divorce proceedings and they serve them on the respondent, and the respondent makes the decision not to come in, that’s an entirely different situation because in that instance the respondent had an opportunity to say what the position is and did not avail of it. He or she takes what is coming to them and the court in that regard is working with the knowledge that the Respondent was given that opportunity.

21. This is a case where the Respondent is not capable of participating. The attorney is sitting on her hands, I don’t say that pejoratively and is not opposing the application.

This therefore runs the risk of casting the Court into a representative capacity for the respondent and I don’t believe that’s appropriate. The Court has an inquisitorial role, but it is an inquisitorial supervisory role. It is not an inquisitorial representative role. If the situation is that the Attorney is says I am not agreeing or disagreeing, I am here to represent this person and the Applicant is proffering a situation and you judge you can decide or not, that is not the court taking a supervisory proper provision role, that is the court being asked to represent the Respondent.

22. So, what I am going to do, I would propose to re-constitute the proceedings with a guardian ad litem. I am going to give the parties an opportunity to consider that. I am going to lift the in-camera rule in any event, whether it be the attorney who is appointed as guardian or another independent person. I am going to lift the in-camera rule so that the attorney and her sibling can be here because I believe it appropriate that they be here. I would like to get this order completed today so if you can take instructions on the matter and return before me at any time today. I do intend to list this matter for early hearing. I want to be very very clear, it may well be that what is being put forward by the applicant, having regard to the history of the parties, the origin of the assets, the duration of separation, the separation of their affairs over many periods, it may well be that that is appropriate and I have made absolutely no decision in that regard at all. I want to resolve this matter I want an early hearing for it, literally within days. If there is to be a guardian who is not the attorney, they need to be alive to that fact because this is not fair to the applicant who comes before the court looking for an order and the court must address that in a timely fashion.

23. I will make orders accordingly.