Divorce as a Status Matter Lies Beyond an EPA’s Reach: High Court mandates Guardian ad Litem for Incapacitated Respondents

Introduction

In T OS v C OS [2025] IEHC 538, the High Court (Jackson J.) confronted a recurring and under-explored junction between capacity law and family law: how an incapacious respondent is to be represented in divorce proceedings where an Enduring Power of Attorney (EPA) exists under the Powers of Attorney Act 1996. The respondent had executed an EPA in 2017 (registered in 2020), conferring a general authority over “property and affairs”. The applicant spouse had brought divorce proceedings under the Family Law (Divorce) Act 1996 (as amended in 2019).

The core questions were:

Does a general EPA under the 1996 Act authorise the attorney to conduct or defend divorce proceedings on the donor’s behalf, in particular the status element of divorce?
How should section 138 of the Assisted Decision-Making (Capacity) Act 2015 (the 2015 Act) be understood in the context of divorce, given that consent is not a statutory ingredient of divorce in Irish law?
What is the proper procedural mechanism to ensure the respondent’s participation and protection—appointment of a guardian ad litem (GAL), use of decision-making supports, or another route?

Jackson J. held that an EPA under the 1996 Act is confined to “business or financial affairs” and does not extend to status litigation such as divorce. While the attorney may participate in and direct litigation on ancillary financial reliefs, they cannot represent the donor in respect of the status change itself. To safeguard participation and due process, the Court appointed a guardian ad litem for the incapacious respondent and lifted the in-camera rule to enable necessary attendance, while emphasising the required independence and expertise of the GAL.

Summary of the Judgment

Validity of the EPA: The EPA was validly executed and registered under the 1996 regime. The Court noted the more limited notice requirements under the 1996 Act compared to the broader regime under the 2015 Act, but no issue of validity arose.
Scope of “Affairs” and Attorney Authority: “Affairs” under section 4 of the 1996 Act means “business or financial affairs.” Reconciling sections 6(1) and 6(2), the Court held that while a general EPA confers a wide power to do anything the donor could lawfully do “by attorney,” the breadth operates only within the subject-matter confines of business and financial affairs. Litigation within that sphere may be conducted by the attorney; status litigation (divorce) falls outside it.
Divorce as Dual-Aspect Litigation: Divorce was characterised as a status change accompanied by potential ancillary financial and non-financial reliefs. The attorney can act on the financial reliefs, but not on the status element.
Section 138 of the 2015 Act: The Court rejected the submission that section 138 is meaningless in Irish divorce because consent is not a statutory ingredient. Instead, the Court linked capacity to divorce with the need to engage with four elements: living apart, irreconcilability, proper provision, and the Court’s residual discretion to grant a decree (“may” in section 5).
Procedural Solution—Appointment of GAL: The Court appointed a guardian ad litem under Order 15, rule 17(6) of the Rules of the Superior Courts or the Court’s inherent jurisdiction. The GAL’s role is to ascertain and convey the respondent’s wishes and preferences and provide an independent view to the Court, drawing on O’Donnell J.’s guidance in HSE v N.D [APUM] [2025] IEHC 86.
Conflicts and Fiduciary Duties: The Court flagged fiduciary/conflict-of-interest concerns inherent in an attorney’s role but declined to adjudicate upon them absent full argument, noting authorities on fiduciary conflict (Greene v Coady; Bray v Ford).
Case Management: The in-camera rule was lifted to allow the attorney and a sibling to attend; the matter was to be listed for early hearing; and parties were invited to propose an appropriately independent GAL expeditiously.

Analysis

1) Precedents and Authorities Cited

Irish Bank Resolution Corporation Ltd (In Special Liquidation) v Fingleton [2025] IESC 8 and Elliot v Stamp [2008] IESC 10:
Cited to illustrate that an attorney may conduct legal proceedings on a donor’s behalf where the proceedings pertain to the donor’s business or financial affairs. Jackson J. uses these cases to confirm the legitimate litigation agency of an attorney within the scope of section 6(1) “affairs.” Crucially, these authorities do not extend attorney authority to status litigation.
Greene v Coady [2014] IEHC 38 and Bray v Ford [1896] AC 44:
Invoked in discussing fiduciary duties and conflicts of interest inherent in the attorney–donor relationship. While the Court did not decide any conflict issue, the references underscore that attorneys owe fiduciary duties and that conflicts must be scrutinised and managed—particularly relevant where family assets and personal relationships intersect in divorce.
R v M [2023] IEHC 748 (Jordan J.):
Relied on to identify the residual judicial discretion embedded in Article 41.3.2° and section 5 of the 1996 Divorce Act. Even where the statutory “proofs” are satisfied—living apart, no reasonable prospect of reconciliation, and proper provision—the Court “may” grant a decree. Jordan J. contemplated scenarios (e.g., fraud, lack of capacity) where refusal might be justified. Jackson J. uses this to emphasize that divorce is not a purely mechanical remedy and that capacity and representation are material to the Court’s ultimate discretion.
HSE v N.D [APUM] [2025] IEHC 86 (O’Donnell J.):
Provides a contemporary and detailed account of the GAL’s role in protective/inherent jurisdiction proceedings. Jackson J. draws on this to define the GAL’s twin tasks: (a) ascertain and report wishes and preferences, and (b) offer an independent, expert view to assist the Court, including testing evidential and legal bases and ensuring proportionality.
Gorry v Minister for Justice and Equality [2017] IECA 282 (Hogan J.):
Cited to acknowledge the constitutional weight of spousal autonomy where both spouses with capacity agree on arrangements. Jackson J. distinguishes the present case as one where the respondent cannot participate and there is no bilateral, capacitated agreement.
D v S and Mason v Mason:
Referred to in submissions to distinguish contexts where consent or capacity might be relevant. The Court ultimately rejects the idea that section 138 of the 2015 Act is meaningless for Irish divorce merely because consent is not a statutory ingredient.

2) Legal Reasoning

a) The statutory architecture of the 1996 EPA regime

Section 4 defines “affairs” as the “business or financial affairs of the donor.” Section 6(1) authorises an EPA in respect of “all or a specified part of the donor’s property and affairs.” Section 6(2) then provides that within that domain, an attorney may do “anything which the donor can lawfully do by attorney.” Jackson J. reconciles these provisions by distinguishing the subject-matter limits (section 6(1)) from the operative breadth (section 6(2)). The latter cannot expand the former.

Thus, an EPA confers a wide, but not boundless, agency: litigation can be undertaken where it pertains to business or financial affairs (as in IBRC v Fingleton and Elliot v Stamp), but not where the subject matter extends beyond that—such as the status change of marriage. This delineation aligns with the fiduciary nature of the EPA and avoids unintended incursions into intimate personal status decisions.

b) Divorce as a dual-aspect proceeding

The Court conceptualises divorce as comprising:

Status element: The dissolution of marital status, with constitutional and personal dimensions.
Ancillary elements: Financial (e.g., proper provision under section 20) and potentially non-financial orders.

The attorney’s competence tracks only the financial ancillary aspects. The status element is not an “affair” within the 1996 Act’s meaning; therefore, the attorney lacks authority to prosecute or defend that element on the donor’s behalf.

c) The four elements of divorce in Irish law and the Court’s dual discretion

Jackson J. rejects the view that Irish divorce is reducible to two factual proofs (living apart and irreconcilability) plus a technocratic exercise in proper provision. The judgment emphasises four elements:

Living apart (section 5(1)(a)), which the respondent may wish to contest.
No reasonable prospect of reconciliation (section 5(1)(b)), another contestable, non-financial issue.
Proper provision (section 5(1)(c)), a discretionary financial assessment guided by section 20.
Residual discretion in section 5: even if (a)–(c) are satisfied, the Court “may” grant a decree. The Act does not prescribe criteria for this final discretion; Jordan J. in R v M warned that circumstances such as lack of capacity or fraud could justify refusal.

From this framework, capacity and representation are directly relevant to the Court’s overall decision to grant a divorce. It also answers the submission on section 138 of the 2015 Act: while consent is not an ingredient of divorce, the incapacious person’s participation (or supported participation) in all four elements remains material, and the law must provide a lawful representative mechanism.

d) Section 138 of the 2015 Act and decision-support architecture

The Court declines to treat section 138 as an empty vestige imported from English models. Instead, it reads section 138 as cohering with the need for capacity to engage with the divorce process (including issues beyond pure finance). Practically, however, the Court recognises that the Decision Support Service (DSS) has not been registering co-decision-making agreements in divorce contexts and does not, in practice, administer divorce proceedings. The appropriate immediate solution is a guardian ad litem—reviving the pre-2015 practice—rather than attempting to route through DSS appointments that are unsuited to status litigation.

e) Guardian ad litem: role, independence and expertise

Drawing on O’Donnell J. in HSE v N.D [APUM], the Court:

Affirms the GAL’s dual mandate: ascertain wishes and preferences; offer an independent evaluative view.
Stresses expertise, including capacity to test evidence and legal basis and to consider the proportionality of interventions.
Emphasises independence—particularly pertinent in a case where familial relationships, fiduciary roles and potential conflicts may exist.

The Court invites submissions on the identity of the GAL, lifts the in-camera rule to permit the attorney and a sibling to attend, and lists the case for an early hearing to avoid prejudice to the applicant.

f) Fiduciary duties and conflict-of-interest caution

The judge highlights fiduciary duties embedded in standard EPA explanatory memoranda (Clause 18) and the limited circumstances in which attorneys may benefit (Clause 16). Although no findings are made, the judgment situates any future analysis within established fiduciary principles (Greene v Coady; Bray v Ford). This flags the inherent risk where an attorney navigates financial reliefs that may advantage the attorney or family members.

3) Likely Impact and Practical Consequences

a) Immediate procedural practice

GAL will be the norm where an incapacious spouse faces divorce proceedings. Courts should expect to appoint a GAL under RSC O.15, r.17(6) or inherent jurisdiction.
Attorneys’ role is limited to financial/ancillary relief management; they cannot determine or purport to bind the donor on the status issue or other non-financial elements.
Case management adaptations: Courts may lift the in-camera rule in a targeted way to facilitate attendance of key supporters and expedite the proceedings to avoid undue delay to the applicant.

b) EPA drafting and expectations

General EPAs are not “divorce mandates”. Even where donors intend to empower attorneys broadly, status litigation is outside the statutory remit of “affairs.”
Advisory clarity: Donors and attorneys should be advised that ancillary financial arrangements in divorce can be addressed via the EPA, but a GAL will be necessary for the status element if the donor later lacks capacity.

c) Capacity law ecosystem and the DSS

Legislative and policy clarity may be needed on the interface between the 2015 Act and family law proceedings, particularly on section 138’s scope and the DSS’s role.
Operational gap filled by the GAL: In the absence of a DSS pathway for divorce, the GAL provides the necessary rights-compliant representation, with an inquisitorial-supervisory court role rather than a representative one.

d) Substantive family law

Re-emphasis on judicial discretion: The judgment highlights the second, under-examined discretion in section 5—courts may refuse a decree in exceptional circumstances even where proofs are met. Capacity and proper representation become relevant considerations at this final stage.
Spousal autonomy distinguished: Where both spouses with capacity agree terms, courts accord significant weight to that autonomy (Gorry; R v M). That paradigm does not apply where one party cannot participate; the court will not substitute itself as the respondent’s representative.

Complex Concepts Simplified

Enduring Power of Attorney (EPA): A legal instrument under which a donor authorises an attorney to manage their property and affairs if the donor later lacks capacity. Under the 1996 Act, “affairs” are limited to business or financial matters.
“Affairs” vs “Status”: “Affairs” are business/financial; “status” refers to personal legal status (e.g., being married). EPAs do not authorise attorneys to change the donor’s status (divorce is a status change), though attorneys can handle the financial consequences of divorce.
Guardian ad litem (GAL): An independent person appointed by the court to protect the interests of someone who cannot fully participate, tasked both with reporting the person’s wishes/preferences and giving an independent assessment to assist the court.
Proper provision (section 20): The statutory framework guiding courts when making financial orders in divorce, considering factors like income, resources, needs, contributions, and obligations.
Residual discretion to grant divorce: Even if the statutory conditions are satisfied, the court “may” grant a decree. In rare cases (e.g., fraud, lack of capacity), a court might decide not to grant a decree.
Section 138 of the 2015 Act: Although consent is not an ingredient of divorce, this section is relevant because capacity to engage with the divorce process (including non-financial elements) still matters; representation must therefore be structured lawfully.
In-camera rule: Family proceedings are generally private. The court can lift the rule in limited ways to allow attendance by key persons (such as an attorney or family supporter) when justice requires.
Fiduciary duty and conflict of interest: Attorneys must act solely in the donor’s interests; benefiting personally or acting in conflict with the donor’s interests risks breach of duty and legal challenge.

Key Procedural Takeaways for Practitioners

Do not rely on a general EPA to conduct the status aspect of divorce. Plan for a GAL appointment early once incapacity is apparent.
Use the attorney to gather financial information and engage in settlement dialogue on ancillary relief, while keeping the GAL informed and involved.
Propose a GAL with demonstrable independence, expertise in capacity and family law, and availability to meet expedited timetables.
Where appropriate, seek targeted lifting of the in-camera rule to permit essential supporters to attend and facilitate the respondent’s participation.
Remain alert to fiduciary issues: attorneys should disclose potential conflicts and, where necessary, recuse themselves from roles that compromise independence.

Open Questions and Future Directions

What criteria should guide the Court’s residual discretion under section 5 to grant or refuse a decree where statutory proofs are satisfied? Further appellate guidance may be warranted.
Could an attorney ever be appointed as GAL? Jackson J. leaves identity open but stresses independence and expertise; fiduciary conflicts will often weigh against such an appointment.
What is the DSS’s future role, if any, in divorce contexts? Policy or legislative clarification could harmonise assisted decision-making architecture with family law proceedings.
How will section 138 of the 2015 Act be calibrated by future case law in family law contexts beyond divorce (e.g., judicial separation), given the exclusion of certain personal decisions from decision-support frameworks?

Conclusion

T OS v C OS crystallises a significant principle in Irish capacity and family law: a general EPA under the 1996 Act does not authorise an attorney to conduct or determine the status element of divorce. The EPA’s remit is confined to business and financial affairs; while it enables attorneys to manage and litigate ancillary financial reliefs, it cannot substitute for the incapacious person’s participation in status litigation.

To bridge that gap, the High Court mandates the appointment of a guardian ad litem—an independent protector of the respondent’s rights and preferences—thus ensuring due process and respect for constitutional and statutory frameworks. The judgment also re-emphasises the underappreciated, residual judicial discretion to grant a decree of divorce, even where proofs are met, and connects that discretion to concerns such as capacity and fairness.

Practically, the decision offers immediate guidance: in divorce cases involving incapacity, practitioners should expect a GAL appointment, use the attorney for financial aspects, and address potential fiduciary issues transparently. Strategically, the judgment invites reflection on the alignment of the Assisted Decision-Making framework with family law, signalling the need for coherent legislative and procedural pathways that both protect vulnerable parties and deliver timely resolution. In positioning divorce firmly as a status matter beyond an EPA’s reach, the Court provides a principled, workable template for future cases at the capacity–family law interface.