High Court allows appeal on capacity declaration, appointing appellants as decision-making representatives for respondent.

THE HIGH COURT

[2025] IEHC 674

[H.CA 2025 0271]

IN THE MATTER OF THE ASSISTED DECISION-MAKING (CAPACITY) ACT

2015 (AS AMENDED)

IN THE MATTER OF AN APPEAL UNDER SECTION 141 OF THE ASSISTED

DECISION-MAKING (CAPACITY) ACT 2015 (AS AMENDED)

BETWEEN

HI AND JK

Appellants/Applicants

AND

LM

Respondent/Relevant Person

Ex Tempore JUDGMENT of Mr Justice David Barniville, President of the High Court, delivered on 27th November 2025

1. This is my judgment on an appeal that has come before the High Court from a decision and order of the Circuit Court (South Eastern Circuit) which was made on the 20 October 2025. The appeal has been brought by the Appellants/Applicants (hereafter the “Appellants”), Mr HI and Ms JK pursuant to s. 141 of the Assisted Decision-Making (Capacity) Act 2015 (as amended) (the “2015 Act”).

2. On the 20 October 2025, the Circuit Court Judge (the “Judge”) heard an application by the Appellants for a declaration as to capacity and an order under Part 5 of the 2015 Act appointing the Appellants as decision-making representatives (“DMRs”) for the Respondent, Ms LM, to assist her in respect of certain specified decisions relating to her personal welfare and property and affairs.

3. Having conducted a lengthy hearing and having heard extensive evidence, the Judge made a declaration under s. 37(1)(b) of the 2015 Act that Ms LM lacked capacity, even with the assistance of a co-decision-maker, to make a number of specified decisions relating to her personal welfare and property and affairs. The order made by the Judge set out the relevant decisions in relation to personal welfare, property and financial affairs, in respect of which the declaration as to lack of capacity applied. Having made that declaration, the Judge then proceeded to make an order requesting the Decision Support Service (the “DSS”) to nominate two persons from the panel, established under s. 101 of the 2015 Act, for consideration by the Court for appointment as DMRs for Ms LM in respect of the relevant decisions.

4. Over the course of the hearing the Judge considered extensive evidence, including evidence from medical practitioners, which the Judge clearly carefully considered before reaching a

decision and making the declaration and orders to which I have just referred. However, the difficulty, and this is agreed by the parties, is that at no point over the course of the hearing did the Judge give any indication that she was considering requesting a nomination from the DSS of a person or persons to act as DMRs for Ms LM, as opposed to appointing the Appellants who were seeking to be appointed to the role.

5. The decision to do so came as a complete surprise to the Appellants, Mr HI (Ms LM’s father, with whom she lives) and Ms JK (Ms LM’s sister, with whom she has a very good relationship). It also came as a complete surprise to Mr Martin Lawlor, the independent solicitor, representing the interests of Ms LM both in the Circuit Court and in this appeal to the High Court. As the option of seeking a nomination from the DSS was apparently never raised by the Judge as being an option she was considering, neither side (that is neither Ms Smith de Bruin BL for the Appellants, nor Mr Lawlor for Ms LM) was in a position to address that aspect of the order, and the order was made by the Judge at the end of her ex tempore ruling. It is also suggested that there was insufficient reasoning given for the Judge’s decision to make such an order.

6. There is no dispute between the parties on the appeal regarding the appropriateness of the declaration made by the Judge pursuant to s. 37(1)(b) and no appeal has been brought in respect of that declaration. Both parties accept that the declaration was one that it was open to the Judge to make, on the evidence that was before the Court at that time. The issue is whether or not the Judge was correct not to appoint the Appellants, Mr HI and Ms JK, as DMRs but instead to seek a nomination from the DSS.

7. The Appellants have appealed that decision to the High Court and the appeal first came before me on Monday, 24 November 2025. I had the opportunity of considering the papers in advance and it seemed to me that there was a very net point in the appeal which should be dealt with expeditiously.

8. I was anxious to ascertain the up-to-date will and preference of Ms LM, and I asked, therefore, that Mr Lawlor would be available for the hearing of the appeal later in the week and listed the appeal for hearing today. Mr Lawlor has very kindly and generously made himself available. He has also undertaken further extensive enquiries with the relevant person, Ms LM, as to what her will and preference is in respect of the persons who would act as her DMRs. Despite not having confirmation from the Legal Aid Board that legal aid is available for the purpose of this appeal, Mr Lawlor very generously, and very appropriately, appeared for the appeal this morning. I hope that by doing so, he has not in any way prejudiced (what appears to me to be) Ms LM’s clear entitlement to legal aid for the purpose of this appeal. It is obviously crucial that her will and preference is put before the Court on the appeal by someone who is independently representing her interests, and Mr Lawlor has fulfilled that role admirably.

9. Under s. 141 of the 2015 Act, an appeal from the Circuit Court to the High Court is an appeal exclusively on a point of law. It is not a wide-ranging or full-blown appeal on the merits. However, it is clear that there are a couple of points of law that have been raised by Counsel in support of this appeal. It seems to me that she correctly raises those points of law and that the position she advocates on behalf of the Appellant is correct.

10. The first point is that, in deciding not to appoint the Appellants but instead asking the DSS to nominate potential DMRs, the Judge did not fully take into account the guiding principles clearly set out in s. 8 of the 2015 Act and, perhaps even more directly, the principles set out in s. 38(5) of the Act.

11. The guiding principles are clear and Counsel drew my attention to a number of them, including s. 8(7)(b), one of the critical guiding principles, which emphasises the necessity to “give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable”.

12. Furthermore, s. 38(5) provides: “(5) When considering the suitability of a person to be a decision-making representative for a relevant person, the court shall have regard to the following:

(a) the known will and preferences of the relevant person;

(b) the desirability of preserving existing relationships within the family of the relevant person;

(c) the relationship (if any) between the relevant person and the proposed representative;

(d) the compatibility of the proposed representative and the relevant person;

(e) whether the proposed representative will be able to perform the functions to be vested in him or her;

(f) any conflict of interest.”

13. In this case, the Appellants are Ms LM’s father and sister. The evidence, before me on this appeal and which was undoubtedly before the Judge in the Circuit Court, is that they have played an extremely important and constructive role in Ms LM’s life. She lives with her father and her sister lives nearby and has a very full and supportive relationship with Ms LM. What is significant is that it was apparently never suggested to the Circuit Court that it was the will and preference of Ms LM that, if a DMR was to be appointed, the person should be appointed from the DSS panel instead of being the Appellants. I have up-to-date evidence of Ms LM’s will and preference, helpfully provided to the Court by Mr Lawlor, and that is that Ms LM “100% does not want a stranger” to be involved in her decision-making. Her very strong preference is that the persons to be appointed as her DMRs should be her father, Mr HI, and her sister, Ms JK.

14. The appointment of those persons as her DMRs is clearly consistent with the guiding principles referred to in s. 8 that I have mentioned and with the provisions in s. 38(5) of the 2015 Act set out earlier. It is consistent with her known will and preference and is in line with the desirability of preserving existing relationships within the family. On the basis of all the evidence I have been provided with, the strong and close relationship between Ms LM and her father and sister is clear, there is complete compatibility between them and they are clearly able to perform the functions that would be vested in them under the 2015 Act. There is, in my view, no conflict of interest in those persons acting as Ms LM’s DMRs.

15. The first point of law on which I think the Appellants are correct is that insufficient attention was provided by the Circuit Court Judge, in perhaps understandable circumstances, to these statutory provisions and the principles underlying them. I accept the submissions made by Counsel on behalf of the Appellants in that respect and will, therefore, allow their appeal on this first point.

16. The second point of law raised by Counsel is that the Judge did not provide adequate reasons for her decision not to appoint the Appellants but instead to go to the DSS for a panel nominee. The point of law here is that that was not an issue raised in the course of the arguments and evidence in the case and it was not something any of the parties had the opportunity of addressing. Although the Judge clearly devoted great care and attention in hearing the case, and undoubtedly behaved impeccably throughout, she did, in my view, fall into error by not canvassing the possibility of a DSS nominee with the parties, by not reconfirming and clarifying what the will and preference of Ms LM was and then by not giving adequate reasons for her decision not to appoint the Appellants as her DMRs but instead to seek a nomination from the DSS panel. In my view, therefore, the Appellants are also entitled to succeed on this second point.

17. On the two points of law that have been raised on the appeal, I am, therefore, satisfied that I should allow the appeal on the very limited grounds advanced, namely, the identity of the persons to act as DMRs for Ms LM. I am satisfied that I can substitute that part of the Circuit Court order with an order appointing Mr HI and Ms JK as DMRs for Ms LM in respect of the decision-making areas specified in the order, as it is only the identity of the DMRs that has been raised in the appeal. I am satisfied that that reflects the current and up-to-date will and preference of Ms LM as communicated, very helpfully to me, by Mr Lawlor, on her behalf, during the course of this appeal.

18. I will, therefore, amend the relevant part of the Circuit Court order of 20 October 2025 and substitute Mr HI and Ms JK as Ms LM’s DMRs for the decision with respect to her personal welfare and property and affairs which were listed in the Circuit Court order. That is the only change to the Circuit Court order that needs to be made on foot of the appeal. I will grant liberty to apply in the event that any difficulty arises and make no further order.