1. Introduction
This appeal concerned the appointment of a decision-making representative under the Assisted Decision-Making (Capacity) Act 2015, as amended. Its central question was how the court should consider willing family members when deciding whether to appoint an independent representative from the statutory panel.
The relevant person, referred to in the judgment as Ava, had complex cognitive difficulties. Her entitlement to the protections of the 2015 Act was undisputed. The High Court discharged her from wardship and appointed a panel representative. Her half-sister appealed, having sought appointment as representative for decisions concerning Ava’s personal welfare.
The General Solicitor for Minors and Wards of Court was the respondent. Ava, represented through her decision-making representative, and the Legal Aid Board were notice parties; the Attorney General participated as amicus curiae.
Hogan J. agreed with Hyland J. that the appeal should succeed on the principal issue. His separate judgment explained the constitutional foundations of the statutory scheme: the person’s dignity, autonomy and wishes remain paramount, while suitable family involvement must receive meaningful consideration. The supplied text is this concurrence, rather than Hyland J.’s fuller account of the facts and statutory analysis.
2. Summary of the Judgment
Hogan J. concluded that the High Court’s assessment was incomplete because material information about family involvement had not been placed before it.
- The solicitor representing Ava’s interests and the committee of the ward had understood their roles too narrowly.
- Merely transmitting the committee’s instructions did not adequately address the requirements of the new statutory framework.
- Further engagement should have occurred with the appellant and Ava’s father, who had expressed supportive views about her care.
- Ava’s expressed wish to live with her father, although not entirely consistent, had not received sufficient attention.
- The resulting assessment under section 38(5) lacked information necessary to evaluate family relationships, willingness to assist and suitability.
Accordingly, Hogan J. agreed that the appeal should be allowed and the matter remitted to the High Court for reconsideration. He did not conclude that the appellant must be appointed. The required outcome was a properly informed reassessment, not automatic preference for a relative.
3. From Wardship to Person-Centred Decision-Making
The significance of the statutory transition
The judgment treats the 2015 Act as a fundamental change in legal philosophy, not merely an updated version of the Lunacy Regulation (Ireland) Act 1871. Subject to transitional provisions, section 7(2) repealed that principal wardship statute.
The former regime reflected parens patriae: the exercise of protective authority over people considered unable to manage their affairs. Hogan J. identified its central weakness as its binary, “all or nothing” character. Admission to wardship transferred decision-making authority to the committee and ultimately the court, leaving the individual’s own voice insufficiently influential.
The 2015 Act reverses that emphasis. The person’s voice, wishes, dignity and autonomy must occupy the centre of the process to the greatest extent possible. That change affects not only the substantive decision but also how information is gathered and presented to the court.
Constitutional foundations
Hogan J. located the new framework within several constitutional protections:
- the Preamble’s commitment to individual dignity;
- Article 40.3.2°, protecting the person and property rights;
- Article 40.6.1°, protecting associational and related rights; and
- Article 41, recognising and protecting the family.
The Constitution does not contain a single comprehensive private-life guarantee equivalent to Article 8 of the European Convention on Human Rights. Nevertheless, Hogan J. considered the combined effect of these constitutional provisions to provide strong protection for choices about where and how an individual lives.
Section 8(6)(b) expresses that constitutional orientation in statutory language. It requires due regard to the relevant person’s dignity, bodily integrity, privacy, autonomy and control over financial affairs and property. The judgment therefore presents autonomy as a governing legal consideration, not simply an aspiration.
4. Legal Reasoning: Family Participation Without Family Control
The statutory suitability assessment
Section 38(5) requires the court, when considering a proposed representative’s suitability, to address:
- the relevant person’s known will and preferences;
- the desirability of preserving existing family relationships;
- the relationship between the person and the proposed representative;
- their compatibility;
- the proposed representative’s ability to perform the functions concerned; and
- any conflict of interest.
These requirements make family relationships legally relevant, but they do not make kinship conclusive. A relationship must be examined alongside the person’s preferences, practical suitability and possible conflicts.
The constitutional importance of family support
Article 41.1.1° describes the family as a “moral institution”. Hogan J. regarded willing and suitable family support as an expression of the mutual care associated with that constitutional recognition. In appropriate cases, preserving such relationships serves both the statutory scheme and constitutional values.
The judgment nevertheless maintains a clear hierarchy: the relevant person’s rights, dignity, autonomy and known wishes remain paramount. Family involvement is to support those interests, not displace them.
Consequently, relatives have no unconditional entitlement to appointment. Estrangement, incompatibility, unrealistic care proposals, self-interest or a history of abuse may justify rejecting a family member. The judgment’s references to those possibilities are general illustrations, not findings against the appellant.
Why the information-gathering process mattered
The decisive deficiency arose before the final appointment decision. The solicitor and committee had not sufficiently explored the willingness and potential contribution of close family members. The High Court therefore lacked material needed to undertake the statutory assessment.
Hogan J. explained that the solicitor’s task was not simply to relay the committee’s instructions, as might previously have sufficed under wardship. Acting in conjunction with those instructions, the solicitor should have sought further information and engaged with the appellant and Ava’s father.
This was expressly not framed as personal criticism. The obligations of the lawyer and the continuing role of the committee following enactment of the 2015 Act had not previously been judicially clarified. The significance lies in the clarification of future practice.
The reasoning connects procedure with substance: a court cannot meaningfully evaluate family relationships and suitability if potentially important information about them has never been obtained. Formal reference to the statutory criteria cannot remedy an incomplete evidential foundation.
Giving proper weight to the person’s own voice
Ava’s wish to live with her father was particularly important. Its imperfect consistency did not justify allowing it to recede from the court’s assessment. Hogan J. considered that it had not featured to the extent required.
That observation does not establish that every expressed preference must determine the result. Nor does a wish to live with someone necessarily establish a wish that the same person become the decision-making representative. It does establish that meaningful expressions about residence and relationships must be properly presented and considered.
5. Precedents Cited and Their Influence
Re KK [2024] IECA 242
Hogan J. referred to his earlier description of the 2015 Act as “the most fundamental change in the legal regime governing vulnerable persons in well-nigh 150 years”. The citation supplies the interpretive starting point: the Act should not be administered through assumptions inherited from wardship.
Its influence is therefore structural. It supports the conclusion that the roles of courts, committees and lawyers must be understood in light of the new person-centred framework.
In re D [1987] IR 449
Finlay C.J.’s statement at page 455 established that even the former wardship legislation should be construed to give effect to constitutional protections of life, person and property.
Hogan J. considered that principle applicable a fortiori to the 2015 Act: if constitutional rights governed interpretation of the older protective regime, they apply with still greater force to legislation expressly oriented towards dignity and autonomy. This provides continuity in constitutional protection despite the substantial statutory transformation.
MK (Albania) v. Minister for Justice and Equality [2022] IESC 48, [2024] 2 IR 113
This authority supports the distinction between the absence of a single constitutional private-life clause and the existence of substantial constitutional protection for personal life choices.
Hogan J. used it to explain why decisions about residence and ways of living engage several constitutional guarantees together. Its role here was constitutional, rather than an application of immigration law or a determination of a separate Convention claim.
This case concerned an Irish citizen seeking to bring elderly, frail, non-citizen parents to Ireland to care for them. Hogan J. reproduced his earlier discussion of the family’s character as a moral institution and the importance of intergenerational support.
Although the factual setting differed, the underlying reasoning supported giving proper consideration to relatives willing to help Ava. The analogy concerns the constitutional significance of family care; it does not establish an overriding family right to control decisions.
East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] IR 317
This authority supplies the requirement that statutory discretionary powers be exercised constitutionally. Applied here, the High Court’s discretion under the 2015 Act must respect the constitutional values informing the legislation.
The resulting obligation is practical: where appropriate and suitable, family members should be involved and consulted to the greatest possible extent. The case thus connects constitutional interpretation with the actual conduct of the appointment process.
HI and JK v. LM [2025] IEHC 674
This was the closest factual comparison. Barniville P. allowed an appeal from a Circuit Court decision where the relevant person firmly opposed appointment of a non-family representative and wanted her father and sister appointed instead.
The evidence established close relationships, compatibility, ability to perform the statutory functions and no conflict of interest. Appointment of those relatives therefore accorded with both section 8 and section 38(5).
Hogan J. regarded that analysis as directly relevant, while expressly rejecting its treatment as a universal rule. It illustrates how family appointment can follow from a properly evidenced application of the statutory criteria—not from an automatic preference for relatives. In Ava’s case, the missing information required reconsideration rather than an immediate equivalent appointment.
6. Significance and Likely Impact
For courts
The judgment emphasises the need for an adequately informed appointment process. Courts should be able to identify and evaluate the person’s wishes, existing family relationships, relatives’ willingness to assist, practical capability and possible conflicts. An incomplete assessment cannot be sustained merely because an independent panel representative is available.
Equally, the decision does not undermine independent appointments. Such appointments remain appropriate where the evidence and statutory criteria support them. The objection here was to the process and its evidential deficiencies, not to panel representatives as a category.
For lawyers and committees
The concurrence cautions against carrying forward a passive, instruction-transmission model from wardship. Where family involvement is materially relevant, obtaining further information and engaging with suitable relatives may be necessary to enable the court to perform its statutory task.
This is a context-sensitive responsibility, not a requirement to contact every relative irrespective of relevance. Its purpose is to secure the information needed to represent the person’s interests within the new framework.
For relevant persons and families
The judgment strengthens recognition of the person’s relationships and expressed choices without transferring control to relatives. A family member’s wish to assist deserves genuine examination, but willingness alone does not establish suitability.
For future litigation, a central question will be whether the court had sufficient material to apply section 38(5), rather than whether a relative should presumptively have prevailed.
Limits of the decision
The supplied concurrence does not decide who should ultimately represent Ava, where she should live, or whether the appellant satisfies every statutory requirement. Nor does it set out the detailed terms of remittal. Its contribution is the constitutional explanation for requiring a fuller, person-centred assessment.
7. Complex Concepts Simplified
- Decision-making representative
- A person appointed by a court to make decisions for the relevant person within the functions entrusted to that representative under the Act.
- Wardship
- The former protective system under which decision-making authority over a person’s affairs passed to the committee and ultimately the court.
- Parens patriae
- A traditional form of protective authority under which the state, through the courts, acted for people considered unable to protect their own interests.
- Known will and preferences
- What the person is known to want or prefer. These must be distinguished from what relatives or professionals believe the person should want.
- Constitutionally exercised discretion
- A statutory choice that must be made consistently with constitutional rights and values, rather than according to unrestricted judicial preference.
- Remittal
- Sending the matter back to the lower court for reconsideration, rather than having the appellate court make the final appointment itself.
- Concurring judgment
- A judgment agreeing with the outcome proposed by another judge while providing additional or separate reasoning.
8. Conclusion
The judgment establishes an important connection between person-centred decision-making and meaningful consideration of family support. Under section 38(5), read against the Constitution, suitable family involvement cannot be overlooked through an unduly narrow approach to gathering and presenting evidence.
The governing principle remains clear: family participation should support, not override, the relevant person’s dignity, autonomy and wishes. The appeal succeeded because the High Court lacked material necessary to apply that principle properly; reconsideration, rather than automatic family appointment, was the appropriate response.