THE HIGH COURT [2026] IEHC 373 Record No.: H.JR 2025 1951 BETWEEN/ EDMUND BURKE Applicant -and- THE DIRECTOR OF THE DECISION SUPPORT SERVICE [MENTAL HEALTH COMMISSION] Respondent Judgment of Ms. Justice Mary Rose Gearty delivered on the 12th June 2026 Introduction
- This Applicant seeks to quash a decision of the Respondent to the effect that his complaint about his brothers, who were appointed as attorneys under an Enduring Power of Attorney, was not well founded.
- The complaint became moot on the death of the Applicant’s mother. The effect of the relevant legislation is prospective, not retrospective, and there is no issue of exceptional public importance which requires the case to be heard notwithstanding this. Leave for judicial review must be refused. Chronology
- On the 26th of November 2021 an enduring power of attorney [EPA] was executed under the Powers of Attorney Act
- That instrument was registered by the Wards of Court Office on the 2nd of January
- The EPA named the Applicant’s two brothers as attorneys for their mother, the donor, to use the terminology of the 1996 Act. This lady is now deceased. The 1
- Respondent is the regulating body for those who are described as “decision supporters”, including attorneys appointed under the 1996 Act. The Respondent promotes the rights and interests of people who may need support with decision-making, registers decision support arrangements and supervises decision supporters. It is in that last capacity that this application arises. On the 19th of April 2024, this Applicant made a formal complaint to the Respondent alleging breaches of fiduciary duty by the attorneys, his brothers, acting under the EPA. On the 25th of April 2024, the Respondent opened an investigation and a preliminary view, that the complaint was not well-founded, issued on the 18th of September. On the 2nd of October 2024 the Applicant requested an internal review of the decision. On the 29th of October 2024 the Respondent emailed its final decision by sending a PDF document to the Applicant. He argues that this was not effectively received as it went into a spam folder. On the 13th of January 2025 the Applicant received a copy of the final decision. The impugned decision was that the complaint was not well-founded. The Applicant appealed this decision to the Circuit Court and, on the 28th of July 2025, that Court dismissed the appeal. His Honour Judge Maguire held that the case was moot on the basis that the Applicant's mother was now deceased and that no remedy that the Judge could grant would be effective. There is no averment as to her date of death but, by reference to his father’s death in September of 2025, she appears to have died in August of
- The Judicial Review application was filed on the 28th of October 2025, and so was within 3 months of the decision of the Circuit Court, if one does not count the vacation period during August. It is not clear when the Applicant’s appeal to the Circuit Court was filed or if it was within the statutory time limit. Apart from his assertion that the decision was in his spam folder, there is no other indication as to whether his appeal was filed within time or not. The impugned decision, i.e. the decision of the Respondent, and not the later decision of the Circuit Court, has been exhibited, along with the preliminary decision of the Respondent. The Circuit Court pleadings were not exhibited. The Impugned Decision, Prospective Legislation and Pointlessness
- The Applicant does not challenge the decision of the Circuit Court but challenges the decision of the Respondent which was later appealed. The fact that the Court dismissed his appeal is offered as a reason why the decision of the 29th of October 2024 was not reviewed earlier and is relied upon as the reason to extend time: he had to exhaust his remedies. But the Applicant does not grapple with the problem that the Circuit Court decision is the last decision 2 on the issue, and he must establish why it is that the Judge was incorrect, not what was wrong (if anything) with the decision of the Respondent.
- Once an applicant has availed of an appeal, that decision supersedes the initial decision: see V.B. v Tusla, the Child and Family Agency [2024] IECA 192, paragraphs 5 to 7, inclusive. Here, Binchy J. upholds findings that once the applicant appealed a decision of the District Court to the Circuit Court, the Circuit Court decision was the only decision which could be judicially reviewed, as it superseded that of the District Court.
- The Applicant argues that the fact that the Circuit Court Judge ruled that the complaint was moot, means the legality of the decision is unresolved as there was no ruling on the merits. He submits that the High Court therefore is his last resort consistent with Order 84, but also that judicial review should operate as the “residual supervisory route.” He submits that there is “clear utility” in quashing the decision and remitting it, even if it will have no impact on the parties involved in this case. He adds that it would correct a systematic error, capable of repetition. These arguments are not supported by any authority and are contrary to all relevant Superior Court decisions on the issue of mootness. These are his only submissions relevant to the issue of mootness.
- He also argues that the relevant section in respect of complaints, s.76
(6)of the Assisted Decision Making (Capacity) Act 2015, is not prospective and that both the Respondent and the Circuit Court were wrong to so interpret it. This argument is to the effect that if the section is retrospective, it could undo the effect of the appointment of his brothers and render their actions void. 12. Section 76
(1),
(2),
(3),
(4)and
(6),
(7)and
(8)[
(5)is not relevant] read as follows: 76.
(1)A person may make a complaint in writing to the Director concerning one or more of the following matters: (
- a)that an attorney has acted, is acting, or is proposing to act outside the scope of his or her functions as specified in the instrument creating the enduring power of attorney; (
- b)that an attorney is not a suitable person within the meaning of section 59
(6); (c) that fraud, coercion or undue pressure was used to induce a donor to appoint an attorney.
(2)A person may, in respect of an attorney under the Act of 1996, make a complaint in writing to the Director concerning one or more of the following matters: (
- a)that an attorney under the Act of 1996, is acting or is proposing to act outside the scope of the enduring power under the Act of 1996; 3 (
- b)that an attorney under the Act of 1996 is unable, for whatever reason, to perform his or her duties and obligations as construed in accordance with that Act; (
- c)that fraud, coercion or undue pressure was used to induce a donor under the Act of 1996 to appoint an attorney under the Act of 1996.
(3)Following the receipt of a complaint under subsection
(1)or
(2), the Director shall carry out an investigation of the matter which is the subject of that complaint and— (
- a)where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to a matter specified in the complaint, or (
- b)where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for that view.
(4)A person who receives a notification under subsection
(3)(b) may, not later than 21 days after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court. […]
(6)The court may— (a) pursuant to an application to it under subsection
(3)(a) or
(5), or (b) pursuant to an appeal under subsection
(4), make a determination in relation to a matter specified in subsection
(1)or
(2)and may, if it considers it appropriate, determine that— (
- i)an attorney shall no longer act as such in relation to the donor concerned, or (
- ii)an attorney under the Act of 1996 shall no longer act as such in relation to a donor under the Act of 1996.
(7)The reference to “attorney” in sections 95 and 96 shall, for the purposes of this section, be construed as including an attorney under the Act of 1996.
(8)The reference to “relevant person” in sections 95, 96 and 99 shall, for the purposes of this section, be construed as including a donor under the Act of 1996. 13. The terms of the section make it clear that the only remedy available to the Circuit Court was to remove either or both attorneys. The provisions cannot be 4 used to remove someone retrospectively, deeming him never to have acted as such. Firstly, the phrase “no longer” is used, which refers to future events. 14. Secondly, the common law presumes that legislation is never retrospective, unless the statute deals only with procedural matters or the relevant provision expressly and unambiguously provides otherwise. See, for instance, Hamilton v. Hamilton [1982] IR 466 where the vendor’s contract to sell the family home was entered into before the enactment s. 3 of the Family Home Protection Act, 1976 and without his wife’s consent. The Supreme Court held that s.3 only affected conveyances entered into after the Act came into effect. 15. Finally, and as a matter of first principles, retrospective laws offend against the principle that the law must be certain. If the law is not certain, citizens cannot manage their affairs with confidence that rights will be respected and contracts honoured. The submission that s.76 is retrospective in effect is grammatically incorrect, unsupported by legal authority and offends common sense. 16. Section 76 also makes it clear that the Circuit Court has only one remedy when in receipt of a complaint about an attorney under either the 1996 Act or the 2015 Act: the Court can determine that, prospectively, the attorney can no longer act as such in relation to the donor. The Circuit Court, therefore, correctly decided that as the Applicant’s mother had died since the complaint was made, the only remedy available, removal of the attorneys, was no longer effective and the case should not proceed further. Remaining Arguments 17. The Applicant’s main argument is what he describes as the Respondent’s use of the wrong Code. This is a reference to a Code of Practice adopted by the Respondent. Its website refers to a 2023 Code and, throughout his papers, the Applicant repeats that the Respondent appears to have been using a 2022 Code of Practice. For completeness, I note that the solicitors for the Respondent confirmed to him by letter that the only Code in use was one adopted in 2023. 18. The Applicant claims this is an argument which is of sufficient public interest that the case should proceed notwithstanding the death of his mother. The Applicant also claims that the Respondent fettered its discretion by reference to the wrong code, that the final decision was irrational, and that there were insufficient reasons for the decision. Insofar as delay is concerned, he submits that the case is of sufficient systemic importance that if the Court finds that an extension of time is required, then it should be granted. 19. The initial complaint focused on two aspects of the acts of the attorneys: their mother’s care and her financial decisions in respect of the Applicant and two properties. The impugned decision contains reasons and refers to evidence on which the decision is based and, insofar as it is necessary for me to comment, 5 the decision does not appear irrational. The only remedy this Court could have granted even if the decision was irrational, if the Respondent fettered its discretion or based its processes on the wrong code, was to remit the matter to the Respondent for reconsideration. But the only possible remedy available to the Respondent was to remove the attorneys. As the Applicant’s mother is deceased any remittal would be pointless: the function of the attorneys is now at an end and therefore there are no attorneys to be removed. Mootness 20. Mootness is, in fact, the real core of the case despite the fact that the Applicant has all but ignored it. Lofinmakin v. Minister for Justice, Equality and Law Reform [2013] IESC 49 is the authority most often cited in this regard. In Right to Know CLG v Commissioner for Environmental Information [2020] IEHC 392, Hyland J. summarised the relevant principles and noted, at paragraph 38: [McKechnie J.] observes that (
- a)the mootness rule is firmly based on the deep rooted policy of not giving advisory opinions, or opinions which are purely abstract or hypothetical, in a system that is fully adversarial; (
- b)judicial economy or efficiency/effectiveness requires that the courts scrutinise and calculate how best they can fulfil their functions and where necessity of resolution is not required, the courts will correctly be most reluctant to get involved; and (
- c)the discharge of the judicial function is best performed where the reference point is focussed on resolving defined issues in a concrete legal setting, with a consequent reduced danger of overstepping the reach of the judicial role as envisaged in Article 34 of the Constitution (paragraph 61). 21. Hyland J. considered the issue of when a case might be heard, despite the fact that there is no live controversy between the parties at paragraph 39: Of course, even where an issue is moot, the courts have always maintained a discretion to hear and determine the point. McKechnie J. in Lofinmakin observes that where overriding interests of justice require a decision on the moot, same should be given (paragraph 67). In the same judgment, Denham C.J. refers to exceptionality as a test for the exercise of that discretion. During the hearing of this matter, all parties agreed that a moot should only be heard in exceptional circumstances. It is clear from the case law that an issue of exceptional public importance alone does not warrant the hearing of an appeal (Lofinmakin, as followed by Finlay Geoghegan J. in Kovacs v. Governor of Mountjoy Women’s Prison [2016] IECA 108 (paragraph 13)). 22. In Lofinmakin, the Supreme Court was asked to hear an appeal in respect of a deportation order, notwithstanding the fact that it had been revoked. This case constitutes a request to hear a case about a specific decision of the Respondent and the correct application of its Code of Practice, in a case in which the only 6 remedy offered under the legislation is no longer available as the attorneys are no longer acting in that capacity due to the death of the donor. Paragraphs 29 and 30 of the decision of McKechnie J. are particularly apt: 29 … In a time of scarce and declining resources on the one hand and of an ever increasing stream of litigation, much of which is lengthy and complex on the other, the courts must consciously scrutinise and carefully calculate how best they can fulfil their functions. Consequently, where necessity of resolution is not required, the courts quite correctly will be most reluctant to get involved. 30. There is another related but broader consideration which must also be kept in mind: it is that the discharge of the judicial function is best performed where the reference point is focussed on resolving defined issues in a concrete legal setting. In that way there is much less danger of inadvertently overstepping the reach of the judicial role as envisaged in Article 34 of the Constitution. 23. In the context of an argument in respect of public importance, McKechnie J. concluded at paragraph 67 with words which apply to the instant case: I am disinclined to entertain the question in the abstract, as in my view it would be more productive and orderly in the long-term for its consequences to be integrated into our case law in the normal way, rather than by some notional pronouncement. Quite frequently a principle of law – certainly one involving concepts such as those referred to above – can best be understood in its practical application, as distinct from its theoretical positioning. Conclusions 24. The Applicant seeks to review the wrong decision as he has challenged only the final decision of the Respondent. In any event, the issues he raises are moot. Even if he had challenged the later Circuit Court decision, the Circuit Court Judge was correct to find that the case was moot as there is no longer any remedy available under the relevant legislation. 25. There is no point of exceptional public importance arising here which is sufficient to justify permitting a hypothetical case to proceed in circumstances where nothing turns on the outcome. 26. Leave to apply for judicial review is refused. 7