In the Matter of P, 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 the Ward’s Committee Seeking to be his Co-Decision-Makers

THE HIGH COURT WARDS OF COURT [2026] IEHC 192 [WOC 1683] IN THE MATTER OF P, 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 THE WARD’S COMMITTEE SEEKING TO BE HIS CO- DECISION-MAKERS RESPONDENT Ex Tempore Ruling of Mr. Justice Mark Heslin delivered on the 23rd day of February 2026 Introduction 1. “Personal welfare” and “property and affairs” are defined in section 2(1) of the Assisted Decision-Making Capacity Act, 2015 (the “2015 Act”). In this particular case, the court medical visitor, Professor [D], carried out an assessment of the respondent’s decision-making capacity in both of these areas, on 22 July 2025. This was a functional assessment, which accords with section 3 of the 2015 Act. Medical evidence 2. In his 24 July report, Professor [D] states: “…Mr [P] currently demonstrates capacity for decisions related to personal welfare and property and affairs”. 3. This is the only medical evidence in the present application, and it is uncontroversial to say that it is evidence which supports a declaration under section 55 (1)(a), following which the respondent (otherwise “relevant person”) would be discharged from wardship without support in terms of decision-making. 2 Dispute 4. However, the draft order provided to me states that the joint committee do not agree with the opinion of Professor [D]. I am not intending any disrespect by pointing out that they are not medical professionals and have not proffered any medical evidence which would take issue with the opinion of Professor [D]. Application by committee 5. The committee's application is for a declaration under section 55 (1)(b)(ii) and for them to be appointed as co-decision-makers, particularly in relation to property and affairs decisions. To understand why this is so, and the committee’s specific concerns, I now quote again from Professor [D]’s report, where he goes on to say: “Given his relative lack of experience of independent decision-making and financial management he (being a reference to the relevant person) may benefit from the support of a co-decision maker, specifically, with regard to his property and affairs if it was made available to him, though he did not express a wish for this to be put in place”. Experience 6. Several points seem to me to be relevant. The first is to make perhaps an obvious point, that given the very nature of wardship, what is described in the medical visitor’s report as a lack of experience of independent decision-making and financial management might well be said of the vast majority, if not all, wards. Second, to my mind, this cannot be a sufficient reason of itself upon which to base the appointment of a co-decision-maker in respect of a person who, according to the medical evidence, does not lack capacity to make their own decision. No criticism 7. In saying the foregoing, I want to make ‘crystal’ clear that I am not for a moment either directing criticism at the professor, who has offered a view in the best of faith regarding what might be of benefit to the relevant person, nor is there any criticism whatsoever directed towards the committee. That is in circumstances where it is clear from my reading of the papers that their aim, doubtless motivated by love and concern for the relevant person, is to protect him and his interests. ‘Benefit from’ -v- Need 8. Another important point to make is that, while the court medical visitor has stated that the relevant person “may benefit from” (and those were the words used) “the support of a co-decision- maker” in relation to property and affairs decision-making, he did not say that the relevant person required that support. Nor did Professor [D] opine that the relevant person lacked capacity unless he had the support of a co-decision-maker. Best interests 9. In other words, the professor seems to have offered a bona fide view with a focus on what might benefit the relevant person going forward, in substance, from the perspective of best interests. It also seems fair to say that the committee are looking at matters from the perspective of the 3 relevant person's best interests. I say this in circumstances where that very phrase is used in para. 18 of the affidavit grounding this discharge application. This affidavit was sworn by the applicant's sister on 9 February and the following is averred: “Should this Honourable Court decide to appoint a co-decision-maker for [P] in the areas of personal care, property and affairs your deponent seeks an order that either I or [K] or both be appointed to act as we have at all times had [P]'s best interests at heart and we both wish to continue to care for him.” (emphasis added) 10. The foregoing is, of course, entirely to the credit of the joint committee of the relevant person, and their loving concern for him is very obvious from the papers. There is nothing in the papers to suggest - and I don't want anything I am saying today to be interpreted as suggesting - that the committee, which comprises of the relevant person’s two siblings, are other than loving; caring; devoted to their brother; and keen to assist him. That said, I think it is important for the committee to understand that the 2015 Act has brought about significant changes. Focus of 2015 Act 11. I think it is fair to say that, under this Court’s wardship jurisdiction, the primary focus was on the best interests of someone in wardship. However, and at the risk of oversimplification, maximising the autonomy of a relevant person is at the ‘heart’ of the 2015 Assisted Decision-Making Capacity Act, and their best interests is not the guiding principle in relation to an application for their discharge from warship. I say that because the 2015 Act seems to me to recognise, in explicit terms, the possibility of a former ward making a decision which might well be contrary to their best interests. Unwise decisions 12. Section 8 subsection 4 of the 2015 Act states, in relevant, part that: “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.” (emphasis added) 13. It seems to me that implicit in the foregoing wording is the prospect of someone making, or going on to make, a decision which, viewed objectively, is imprudent or misguided or inadvisable, i.e. an unwise decision (which may be contrary to their best interests). 14. Returning to the present case, it seems to me that, motivated by their love of the relevant person, focused on his best interests, and anxious to avoid a situation where he might make an unwise decision, in particular, regarding his property and affairs, the committee are asking this Court to make an order appointing them as their brother’s co-decision-maker. This is not an approach taken by the 2015 Act. 4 15. As I say, the committee’s motivation is entirely understandable and laudable given their personal relationship with the respondent. However, in the manner I have tried to explain, it is, it seems to me, inconsistent with the terms of the 2015 Act and its proper interpretation. Why? Because the aim of the 2015 Act is not to save those who have capacity to make decisions from the consequences of poor or unwise decision-making. Rather it is to maximise the autonomy of all persons, including, for present purposes, persons ‘exiting’ wardship with capacity, and with this comes the potential for both unwise and well as wise decisions. Guiding principles 16. This Court is also very conscious of, and I think I should draw to the committee's attention, the ‘guiding principles’ in the 2015 Act. For example, section 8, subsection (5) makes clear that: “There shall be no intervention in respect of a relevant person unless it is necessary to do so having regard to the individual circumstances of the relevant person” (emphasis added) 17. Against that backdrop, and returning to the evidence, there is a material difference between (i) what the medical evidence demonstrates to be necessary; and (ii) what the committee are applying for, in terms of support for the relevant person. Guardian ad Litem 18. Given the dispute, it seems to me that the relevant person and this Court would benefit from the assistance of an independent party to perform the role of Guardian ad Litem for the Ward. I understand from Mr. [A] that Mr. Adrian Lennon, solicitor – someone very well known to the Court and very experienced in acting as Guardian ad Litem - is available to take on such an appointment. Let me emphasise that appointing a Guardian ad Litem for the relevant person is certainly not by any means a criticism of the committee or their legal representative. However, this appointment will ensure that the views of the relevant person are exhaustively interrogated and ascertained fully on all relevant issues by an entirely independent party. Questions which arise 19. As to questions which seem to me to arise (and without constraining the Guardian ad Litem in any way) seem to me to include:- (i) whether it was made sufficiently clear to the relevant person that Professor [D] found him not to lack capacity in any area of decision-making; (ii) whether it's been made sufficiently clear to the relevant person that he can, therefore, be discharged from wardship without any support whatsoever; (iii) whether that scenario is the relevant person’s preference, namely, to make all decisions himself with it being up to him to ask for, or not ask for, the views or guidance or assistance of others; (iv) whether the relevant person understands that there is no obligation on him to enter into a co-decision-making agreement, regardless of any views expressed by Professor [D] or any views held - in the best of faith - by his siblings and committee; and (v) whether, despite the medical opinion offered by Professor [D] that he does not lack capacity, the relevant person takes a different view. In other words, it seems conceivable, in principle at least, that a relevant person may take the view that they require the assistance of a co-decision- 5 maker and regard this as necessary, even if a clinician, on carrying out a functional assessment, regarded them as not lacking capacity. 20. Again, speaking in theory, but trying to explain further why I am satisfied that a Guardian ad Litem has a very important role to play, there is a difference between a scenario where (i) an individual is willing to accept the views expressed in good faith by others that he would benefit from entering into a co-decision-making agreement, as opposed to, (ii) a situation where a relevant person regards the entering into a co-decision-making agreement as essential, i.e. as necessary, for him/her to make decisions, going forward. 21. It is in light of the foregoing that I am satisfied that it would not be appropriate to deal with this application today. There are issues, some of which I have tried to ‘sketch out’, where further evidence is needed. 22. For these reasons, I am putting this matter back and appointing Mr. Lennon as the relevant person’s Guardian ad Litem. I am grateful to him for taking on the role, and want to stress, yet again, that doing so is no criticism of anyone, be they doctor or family member. 23. My approach, today, flows from the central role which the relevant person's ‘voice’ must play in an application such as this; the need for greater clarity as to his views; and the mandate given to this Court by the Irish people, not to make an intervention unless it is necessary. Hopefully, this interim ruling has clarified where things currently stand.