THE HIGH COURT WARDS OF COURT [2026] IEHC 392 [WOC 11224] IN THE MATTER OF O, A WARD OF COURT, AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 55 OF THE ASSISTED DECISION-MAKING (CAPACITY) ACT AND IN THE MATTER OF A DISPUTE REGARDING THE CHOICE OF DECISIONMAKING REPRESENTATIVES RESPONDENT Ex Tempore Ruling of Mr. Justice Mark Heslin delivered on the 27th day of March 2026 Introduction
- To begin with, I want to welcome Ms. [O] who joins us ‘online’. This is an application about her discharge from Wardship, and she is very welcome, indeed. Certain facts
- I see that Ms. [O] (otherwise the “respondent”) is a lady born in [the 1970s]. I note from the evidence, all of which I carefully considered in advance of sitting today, that the respondent has a moderate intellectual disability and certain physical and mental health needs. She was admitted to Wardship in [year given]. The General Solicitor is her committee. She lives in residential care, receiving support and assistance from [named provider]. Medical evidence
- I have had the benefit of considering the affidavit sworn by Mr. Mark Scanlon, solicitor, on 4 February. This refers to, and exhibits, medical evidence in the form of reporting dated 8 June 2025 by Professor [P], who is a consultant psychiatrist.
- Keeping in mind that s.2
(1)of the Assisted Decision-Making (Capacity) Act 2015 (otherwise “the 2015 Act”) defines both “personal welfare” and “property and affairs”, Professor [P] carried out 2 an assessment of Ms. [O]’s capacity to make decisions in both of those areas. He did so on 8 May 2025 and carried out his assessment from a functional perspective, reflecting the provisions of s.3 of the 2015 Act. Capacity
- He formed the view that the respondent lacks capacity to make decisions regarding both her personal welfare and property and affairs, even if the assistance of a suitable person as co-decisionmaker is made available to her (finding, as regards personal welfare decisions “…a significant lack of ability to understand the information relevant to the decision and to weigh up the relevant information…” and, as regards property and affairs decisions “…she was unclear of the extent of her estate and was not able to weigh up and communicate the consequences of various potential actions associated with money/budgeting that I posed to her as part of my assessment”). No issue has been taken with Professor [P]’s medical opinion, by or on behalf of the respondent, and there is no medical evidence before me which runs contrary to it. Proportionality
- It is also appropriate to note that Professor [P] did not exclude from his opinion any decision or decisions which might fall under the heading of either personal welfare or property and affairs decision-making. Furthermore, it is not suggested that any decision or decisions are or will be unnecessary to be made, going forward. Service
- In addition to Mr. Scanlon’s grounding affidavit, he also swore an affidavit of service and given its contents I am satisfied that service was properly effected, with appropriate efforts made to explain the nature of the application and to try and ascertain the respondent’s views. Views
- In the manner averred (i.e. sworn by Mr. Scanlon to be correct), although it appeared to him that the respondent did not fully understand the concept of decision-making representative (DMR), she did express the wish for her brother, Mr. [Q], and sister, Ms. [R], to be appointed and they indicated their willingness to do so. However, other siblings have flagged objections. Objections
- I want to make clear that I have very carefully considered the 13 February email from the respondent’s sister, Ms. [S]. It expresses concerns about the appointment of her brother (although he is not identified by name, the reference being to an unnamed male individual). Assertions are made of a serious nature, including prior coercion of the respondent and preventing communication from the respondent and a concern that, if appointed to the role of decision-making representative, that gentleman would exclude her and her sister, Ms. [T], and children, from the respondent’s life, with allegations that numbers were blocked. 3
- In light of the foregoing, I adjourned the hearing on the last occasion so that all parties could proffer such evidence as they wished. In the manner I touched on at the outset, I have since received affidavits and correspondence, the contents of which can be summarised as follows. Ms. S
- The position of Ms. [S] can be summarised as follows. Her concern is that her brother may attempt to limit or restrict involvement by her, or her children, or her sister Ms. [T] and the assertion is made by Ms. [S] that Ms. [R] tends to follow Mr. [Q]’s views without seeking her perspective or that of the respondent.
- Reference is also made to all four siblings having previously entered into a mediation agreement, in 2019, regarding matters concerning the respondent and it is asserted that, despite this agreement, her brother did not adhere to the commitments made during the mediation process. There is also an allegation that her mobile number and her sister’s mobile number were repeatedly ‘blocked’ on the respondent’s phone, and it is asserted that that is not something the respondent would be capable of doing. Mr. Q
- In his affidavit, Mr. [Q] takes issue with all such assertions. He asserts that at no time did he independently or unilaterally block any family member’s number; that he acted on all occasions in accordance with the respondent’s request; and that he fully supports the involvement of what is described as an independent advocacy service to ensure the respondent can express her will and preference.
- Mr. [Q] rejects the suggestion that he would seek to restrict family contact, if appointed. He emphasises that his only focus is on the respondent’s welfare and her stated preferences. He refers to his sister, Ms. [R], maintaining contact daily with the respondent, bringing her home for extended breaks, supporting her with appointments and maintaining daily video communication, and also flying home from England to be with her, before and during a recent operation. He characterises that involvement as active and supportive. He also makes clear he does not wish to engage in personal disputes between siblings and emphasises that this is not about historic family disagreements but about ensuring that the respondent’s welfare, stability and wishes are protected. Ms. T
- By way of brief summary of the views of Ms. [T], she is concerned about what she characterises as exclusion from correspondence about her sister’s discharge. She asserts that her brother has made it his mission to exclude her from the respondent’s life. Ms. [T] expresses concern that it may not be in the respondent’s best interests if her brother is granted responsibility over her health or financial affairs, and expresses the following view: “I am firmly of the view that his primary interest lies in managing [the respondent’s] financial affairs.” 4 Care placement
- It is also appropriate to note the views expressed by the care residential placement where Ms. [O] lives day-to-day. Those views are made clear by Ms. [U], quality development officer, who, in correspondence with Mr. Scanlon, states:“My own involvement and remit were limited. In the course of my interactions with Ms. [O] we discussed decision-making and choice as well as family interactions and relationships. Based on those discussions I have formed the view that an independent person may be the most appropriate choice to act as decision-making representative for Ms. [O]. I did not have any direct interactions with family members. However, I must emphasise that we did not discuss any aspect of discharge from Wardship nor did we discuss who Ms. [O] herself would choose as her decision-making representative. We have no plans to address that specific issue. I would reiterate Ms. [O]’s will and preference should be taken into account as a primary consideration.” (emphasis added) Differences between siblings
- With regard to the foregoing evidence, the ‘starting point’ must of course be the expressed view of the relevant person, herself. I have referred to and have carefully considered that. However, given the evidence before me, it is clear that there are a range of serious issues and unhappy differences between the respondent’s four siblings, and it is also clear that these issues have been ongoing for several years. These disagreements are fundamental. These disagreements are unresolved. They touch directly on the relationship of the relevant person to each of the siblings and vice versa. Independent party
- Having carefully considered the matter, and having done so in light of the provisions of the 2015 Act, in particular s.38
(5), I have come to the view that it is appropriate and necessary for an entirely independent party to be appointed to perform the functions of a decision-making representative for Ms. [O]. Ascertaining will and preference
- In my view, this would best facilitate the will and preference of Ms. [O] being ascertained and given effect to on a day-to-day basis, post her discharge from Wardship, including, as regards family contact. Maintaining existing relationships
- It also seems to me that the appointment of an independent party as decision-making representative is consistent with the provisions of s.38
(5)(
- b)concerning the “desirability of preserving existing relationships” within the relevant person’s family. 5 21. Furthermore, appointing an independent decision-making representative reflects the views of the care placement where the respondent is receiving a very high standard of support and care and lives, day-to-day. Papers-based analysis 22. It also seems to me appropriate to say that for this Court to appoint certain siblings, not others, would be, in effect, (
- i)to prefer one version of events over another and (
- ii)to do so on the basis of a purely ‘papers-based’ analysis against the backdrop of (iii) disputes which are obviously serious, and touch on the relationships between the siblings in question and the relevant person, which disputes have been ongoing for years. Plenary hearing 23. I say ‘papers-based’ exercise for the following reason. Although I have not had the benefit of any legal submissions on the question - and that is certainly not a criticism – from my own reading of the 2015 Act there does not seem to be anything to suggest that, when it comes to the Court considering the question of the appointment of a DMR and where there is a dispute of this nature between siblings, that the Oireachtas intended for, or requires, this Court to embark on something akin to a plenary hearing, involving oral evidence and examination and cross-examination in relation to the wide range of issues in dispute, covering a number of years, with a view to reaching findings of fact and determining the merits, if any, of the various complaints, in order to then determine the question of whom to appoint as a relevant person’s DMR. DMR 24. The foregoing does not seem to me to the proper approach by this Court and, having considering the evidence as it stands, and having given all relevant parties the opportunity to express their views, it seems to me that the evidence undoubtedly supports the appointment of an independent DMR and that such an appointment is the most suitable and appropriate for the benefit of the respondent. Material risk 25. I am fortified in this view by the following. If this Court were to prefer two siblings in this case over the other two in a ‘papers-based’ exercise, not only would it offend basic fairness, it would also give rise to a material risk that those appointed could not perform the functions of a DMR in accordance with s.38
(5)(e). I say that because it would create a circumstance where the conflict between siblings would not only subsist but would in all likelihood be made worse. For the conflict between the respondent’s siblings to become worse has the obvious potential to affect the respondent, negatively. 26. I do not doubt for a moment that each of the respondent’s siblings love her very deeply and she them, but making the existing conflict between them worse cannot be in accordance with the relevant person's wishes, which brings me back to s. 38
(5)(a). In my view the evidence supports a finding that the respondent does not wish for conflict between her siblings or for it to be made worse. 6 Declaration 27. It is for these reasons that I am satisfied that the evidence today supports the making of a declaration under s.55
(1)(b)(ii) of the 2015 Act and the appointment of an independent party as DMR. To progress matters, nominations will need to be made from the Panel maintained under the 2015 Act, for the purpose of approval by the President.