Court declares lack of capacity and appoints independent co-decision-maker despite family disputes.

THE HIGH COURT

WARDS OF COURT

[2026] IEHC 109

[WOC 7129]

IN THE MATTER OF D, A WARD OF COURT

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 55 OF THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 (AS AMENDED)

AND

IN THE MATTER OF A DISPUTE CONCERNING THE APPOINTMENT OF A DECISION MAKING REPRESENTATIVE

Ex Tempore Ruling of Mr. Justice Mark Heslin delivered on the 23rd day of January 2026

Introduction

1. We begin with the fact that the applicant, Mr. [D], has made an application to be discharged from wardship. As we are all aware, this matter first came before me on 8 October last. I had then, and still retain, the affidavit grounding the application sworn, on instructions, on 24 September, by Mr. [named] solicitor, which grounded the applicant’s motion to be discharged from wardship.

Medical evidence

2. The state of the medical evidence was that, as of December 2024, the Court Medical Visitor Dr.[A] found that the applicant lacked capacity to make personal welfare and property and affairs decisions unless the assistance of a suitable person as co-decision-maker was made available. Dr. [A] further suggested in her written report that a family member would not carry out that role. In a subsequent report, of June 2025, a second consultant psychiatrist, Dr.[B], found that the respondent did not lack capacity, but recommended decision-making assistance.

Dispute

3. Neither consultant psychiatrist found the applicant to require the appointment of a decisionmaking representative (or “DMR”). However, that was and remains the view of the applicant’s mother, and brother (the “notice parties”). It is very clear from the affidavit evidence that relations between the applicant and his mother have broken down and there would also appear to be very stark differences between the views of the applicant and his brother on the question of the applicant’s

decision-making capacity and independence.

4. The suggestion was made by the notice parties, through their counsel, that a third assessment of capacity should take place. I declined to direct this, in circumstances where neither the court medical visitor, who is a consultant psychiatrist, nor a second consultant psychiatrist had suggested that the respondent required a DMR.

Co-Decision-Maker

5. Furthermore, and crucially, the applicant has made clear, through his counsel, that he does not take issue with the court medical visitor’s opinion and, in effect, consents to it. It remains his position that a co-decision-maker (or ”CDM”) be appointed to support him and, that being so, there is no issue in dispute as regards capacity, also bearing in mind the court has the benefit of two consultant psychiatrists’ reports.

Further affidavits by notice parties

6. I previously adjourned this matter in circumstances where the notice parties wished to furnish further affidavits and, since then, the applicant's mother has sworn an affidavit on 11 November as has the applicant's brother. I have very carefully considered those, and the response to same sworn by the applicant himself.

The 2015 Act

7. I want to make clear that I do not doubt that the motivation of the applicant's mother and brother is to protect him. In essence, both have averred that based on their long experience of living with the applicant, in their view he is not capable of living independently and they contend that he needs a DMR who, to quote from the relevant affidavit, “can guide and care for him” and the suggestion is made that one or other of them would perform that role.

Guiding principles

8. Without intending any disrespect whatsoever, and despite how genuinely members of the applicant's family may feel, and despite the fact that I have given due weight to their views, consistent with the provisions of the Assisted Decision Making Capacity Act, 2015 (or the “2015 Act”), their views cannot be the end of the analysis. That is particularly in circumstances where the guiding principles in the 2015 Act include the following, and I am now quoting from s. 8 of the 2015 Act, which, in relevant part, states that:

“It shall be presumed that a relevant person has capacity unless the contrary is shown” (ss.(2));

“A relevant person…shall not be considered as unable to make a decision… unless all practical steps have been taken, without success, to help him or her to do so” (ss.(3));

“…a relevant person…. shall not be considered as unable to make a decision in respect of the matter concerned merely by reason of making, having made, or being likely to make an unwise decision” (ss. (4)).

Minimising restriction

9. Keeping in mind that an “intervention” includes the appointment of a DMR, s. 8, ss. (6) makes clear that:

“An intervention in respect of relevant person shall

(a) be made in a manner that minimises –

(i) the restriction of the relevant person’s rights,

(ii) the restriction of the relevant person’s freedom of action...”

10. It seems fair to say that there are stark differences between the position as it pertained in Wardship (where the test was set out in the 1871 Act) and the position under the 2015 Act. At the risk of oversimplification, when exercising its Wardship jurisdiction to make decisions on behalf of someone found to lack capacity, the court was guided by a best interest’s test. That is not the position in relation to the 2015 Act. It admits, explicitly, the concept of making an “unwise decision”, in other words a decision which, viewed objectively, may not be in the best interests of somebody. This Court must be mindful of the foregoing guiding principles as it is through this ‘lens’ which the issue of capacity falls to be assessed.

The Applicant’s view

11. As well as being an Act which seeks to maximise autonomy, it is clear that the voice and views of an applicant are critical, and of central importance, in the present application under the 2015 Act. I return, once more, to the ‘guiding principles’ in s. 8 of the 2015 Act, which go on to provide that where an intervention is made it must: “

…give effect, in so far as 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” (s. 8, ss. (7) (b)); and

“… take into account the beliefs and values of the relevant person… in so far as those are ascertainable” (s. 8, ss. (7) (c)).

12. As matters stand, today, the applicant has made very clear through his counsel that (i) he does not dispute the opinion of the Court Medical Visitor; (ii) he is consenting to support in the form of a CDM; and (iii) he wishes the CDM to be an independent person. Therefore, for the purposes of this discharge application, the views of the applicant are ‘crystal’ clear. He does not want a DMR and that is a view which is entirely consistent with the views of two independent consultant psychiatrists.

Time spent with applicant

13. It is certainly not a criticism to say that neither the applicant’s mother or brother are doctors, still less, consultant psychiatrists. Despite this, one of the issues which is canvassed in the notice parties’ affidavits is to point to the limited time which the consultant psychiatrists spent with the applicant.

14. It is entirely obvious that the limited time which a consultant psychiatrist spent with the applicant is a miniscule fraction of the time his mother and brother have known him but that, with respect, takes nothing away from the weight which this Court can give to their views. Why do I say that? Because neither consultant psychiatrist suggests that they spent less time with the applicant than was necessary to conduct formal capacity assessment.

15. In other words, there is no reservation or ‘health warning’, with regard to the views expressed by the consultant psychiatrists, which is related to the time spent conducting the assessment in question. Both consultant psychiatrists who have provided reports are clinicians who are expert in the field of psychiatry, i.e. specialist doctors of the mind. Neither consultant psychiatrist regards a DMR as required.

General Practitioner

16. I have also given due regard to all other evidence. In addition to the averments made by the applicant’s mother and brother, which were doubtless made in the best of faith, I have given due weight to the affidavit sworn by Dr.[C], the applicant's GP for many years. As Dr. [C] confirms in his 14 November 2025 affidavit, he has not formally tested the applicant's decision-making capacity and that is a very frank and appropriate averment for him to make. He also confirms that he has not clinically assessed the respondent during the last two years. Turning to the applicant’s affidavit, he makes an uncontroverted averment that the last time he saw the GP in question was to receive a flu injection.

17. While I have given all due weight to Dr. [C]’s opinion, which is to the effect that the applicant should have a court-appointed DMR, and I have given due weight to Dr. [C]’s recommendation that the applicants mother and brother would be suitable to carry out that role, Dr. [C]’s evidence, whilst based on very long experience of the applicant, is neither grounded on recent exposure to him nor based on any functional assessment of the respondent's decision-making capacity, whereas, by contrast, I have the benefit of two functional capacity assessments.

18. Furthermore, it seems fair to say that Dr. [C]'s area of specialism is general practice. He is not a psychiatrist, and it seems to me that the view of a consultant psychiatrist, given the latter's particular expertise and specialism, carries somewhat greater weight. That is all the more true where not one, but two, independent consultant psychiatrists have opined that the applicant does not need a DMR.

Support

19. Returning to the applicant's own views, he has made clear through his counsel that he consents to the appointment of a CDM. Recalling the views of his mother and brother, to the effect that he is not in their view capable of making decisions independently, the applicant in this case is proposing not to make decisions independently but to avail of support in terms of decision-making. His view, expressed through counsel, is for an independent party to be his CDM.

20. The proposition that a family member would provide support to the applicant is something which is the subject of evidence. This includes independent evidence from the court’s medical visitor to the effect that a family member should not be appointed to provide support. In these particular circumstances, it seems to me that the optimum way both to respect the applicant’s very clearly expressed views and, hopefully, improve relations between close family members is to appoint a completely independent and wholly unrelated party to act as co-decision-maker for the applicant. The last thing this Court would want to do is add ‘fuel’ to on any ‘fire’ of family discord. In coming to this view, I wish to emphasise that I have made no adverse findings against anyone and take it that, regardless of their very different views, all family members have acted in good faith for the purposes of today’s application.

Declaration

21. I am entirely satisfied that a careful consideration of the entirety of the evidence allows for the making of the following declaration. I am declaring, pursuant to s. 55(1)(b)(i) of the 2015 Act, that the applicant lacks capacity in the areas of personal welfare and property and affairs decisionmaking unless the assistance of a suitable person as co-decision-maker is made available to him.

22. Having regard to s. 55 ss (3), a period of time must be given for the registration of a co-

decision-making agreement which, of course, will involve the participation of that independent party whom the relevant person wishes to assist him.

23. Having made the declaration, I will adjourn the making of final orders to allow the practicalities take place.