1. Introduction
This decision addresses a central difficulty in Ireland’s transition from wardship to the supported decision-making framework established by the Assisted Decision-Making (Capacity) Act 2015, as amended: how can the existing representative structure remain operational while giving genuine effect to the autonomy of the person leaving wardship?
The appeal concerned a young adult referred to as “Ava”, who had mental health and developmental disabilities and lived in residential care. The High Court discharged her from wardship and appointed a decision-making representative (“DMR”) from the Decision Support Service (“DSS”) panel for personal welfare and property and affairs decisions. Her half-sister appealed, having unsuccessfully sought appointment as DMR for personal welfare matters.
Two issues arose. First, was Ava adequately represented where her solicitor acted on instructions from the General Solicitor for Minors and Wards of Court, her committee in wardship? Secondly, were the capacity declaration and the DMR’s powers impermissibly broad because they covered entire categories of decisions rather than identified individual decisions?
The Supreme Court set aside the decision and remitted the matter for a fresh hearing on the first ground, while rejecting the second. Its central distinction is between an acceptable representational structure and an unacceptable implementation of that structure. Separate lawyers are not automatically necessary, but the committee, solicitor and court must each perform their functions in a way that makes the person’s participation, will and preferences effective.
2. Background and Procedural History
Ava entered wardship in 2022. The General Solicitor was appointed committee of her person and estate. When the discharge process began, a legal aid certificate issued in Ava’s name, and a solicitor, identified in the judgment as Mr. A, was retained through the committee.
The solicitor met Ava and placed accounts of those meetings before the High Court. Those accounts included statements that she wanted her father involved, regarded him as the best person to make decisions for her, and missed him. She also expressed satisfaction with her current placement. The appellant maintained that Ava had expressed a preference for her appointment and emphasised their close relationship and daily telephone contact.
Both the father and the appellant indicated willingness to act as DMR. Nevertheless, the committee supported appointment from the DSS panel. The father’s suitability was not adequately investigated, reasons for rejecting him were not supplied, and the appellant encountered difficulty obtaining the application papers.
The High Court, in its decision reported at [2026] IEHC 176, rejected requests for additional representation. It then appointed a panel DMR for both broad decision-making categories. Its concerns included family disagreement, limited recent face-to-face contact between the sisters, and a possible future attempt to change Ava’s residence.
Leave to appeal was granted in In the Matter of CNB [2026] IESCDET 78. The Supreme Court recognised the wider importance of the issues for wards awaiting discharge. The Legal Aid Board participated as a notice party, the Attorney General intervened as amicus curiae, and Ava received representation arranged through the appointed DMR. She attended the Supreme Court hearing online.
The statutory timetable provided important context. The original April 2026 deadline for wardship declarations had been extended, on a case-by-case basis, to October 2027. The Court acknowledged the pressure under which the High Court had operated, but held that urgency could not excuse non-compliance with the Act.
3. Summary of the Decision
- No automatic requirement for separate representation: the committee ordinarily acts for the ward, rather than as an opposing party with independent interests.
- The ward remains the solicitor’s client: instructions through the committee must enable representation consistent with the Act, not merely advocacy of the committee’s preferred outcome.
- Will and preferences are distinct from capacity: inability to make a legally effective decision does not establish inability to express meaningful wishes.
- Panel appointment is conditional: a DSS panel DMR should be sought only after the court concludes that no suitable person is willing to act.
- Decision-making powers require individual justification: assessments must consider relevant decisions and possible areas of retained capacity, although an appropriately supported order may ultimately cover both broad statutory categories.
- Foreseeable future decisions may be included: powers need not be confined to decisions requiring immediate resolution.
The first ground succeeded because the committee’s instructions, the solicitor’s approach and the High Court’s determination did not adequately implement the statutory framework. The second failed because the appellant had not established, on Ava’s circumstances and the medical evidence, that the declaration or powers were unjustifiably broad.
4. Representation During Discharge: Continuity Without Paternalism
4.1 A transitional process governed by two legal structures
Part 6 creates the route out of wardship, but it does not dissolve the existing wardship structure before discharge occurs. The committee therefore retains its representative role during the application.
At the same time, section 53 defines a ward as a “relevant person”. Consequently, the protections of the 2015 Act apply during the transition, not merely afterwards. The court cannot conduct the discharge as though it were exercising its former wardship jurisdiction without statutory modification.
This produces a hybrid process: existing machinery supplies representation, while the Act changes the standards governing the evidence, participation and ultimate decision.
4.2 The client is the ward, not the committee
The legal aid certificate was correctly issued in Ava’s name. She was the solicitor’s client. The committee’s role was to provide legally authorised instructions on her behalf, not to become a separate client whose position the solicitor should advance against her.
The Court rejected the argument that every discharge application necessarily contains a contest between two parties—the ward and the committee. Ordinarily, there is one represented interest: that of the ward, on whose behalf the committee acts.
The Court also addressed the practical problem of litigation capacity. A legal aid certificate does not itself confer capacity to instruct a solicitor, nor does it authorise a solicitor to act without a lawful source of instructions. The judgment nevertheless recognised that a solicitor considering an application by a ward under section 54(1)(a) might, after appropriate inquiry and potentially medical evidence, be satisfied that the ward could provide instructions.
The result is not an absolute rule that a ward’s own instructions can never matter. Rather, entitlement to legal aid and capacity to instruct are separate legal questions.
4.3 What the committee must now do
The committee remains subject to its traditional obligation to act in the ward’s best interests. Crucially, those interests, in a discharge application, require instructions that enable the court to fulfil the Act’s autonomy-centred obligations.
The committee must therefore ensure that the solicitor places before the court sufficient material concerning:
- functional capacity and the decisions requiring support;
- the person’s will, preferences and, where relevant, beliefs and values;
- efforts to facilitate participation;
- the suitability of proposed representatives, including candidates identified by the person;
- family relationships and other relevant caring relationships;
- the committee’s own position and reasons; and
- relevant information from the wardship file and those involved in care.
The committee’s view is one component of that evidence. It is not determinative and attracts no additional weight merely because it comes from the committee.
4.4 Disagreement does not ordinarily require another legal team
A difference between the ward’s wishes and the committee’s recommendation is not necessarily a professional conflict requiring separate representation. Normally, the solicitor should obtain and present the evidence supporting both positions. The court then decides the issue under the statutory criteria.
The judgment nevertheless preserves an exceptional safeguard. Where the arrangement cannot secure adequate representation—for example, because the committee fails to discharge its obligations—the wardship court may direct the solicitor to stop taking instructions from the committee and define a court-authorised role focused on ascertaining and presenting the ward’s wishes.
The Court referred by analogy to Practice Direction HC 121, under which judicial appointment and directions establish an independent solicitor’s retainer. The exception matters: the ordinary model is not immune from judicial intervention merely because separate representation is not routinely required.
4.5 The solicitor’s independent professional responsibility
The solicitor must advise the committee about its obligations under the Act. Accordingly, receiving instructions through the committee does not justify mechanically advancing its preferred result.
In this case, the committee appeared to have decided early in favour of a panel DMR. That approach shaped the solicitor’s subsequent work, leaving family candidates insufficiently investigated. The Court attributed the shortcomings to misunderstanding the statutory changes, not to lack of care or commitment.
5. Will and Preferences: A Different Question From Capacity
5.1 Why the distinction was decisive
The solicitor had assessed Ava’s ability to express preferences by asking, in substance, whether she could retain and weigh information. Those are elements of the statutory capacity test. Applying them as a threshold for recognising preferences was an error.
A person may be unable to understand the legal implications of appointing a DMR but still meaningfully indicate whom they trust, whose company they value, or who they want involved in their life. Those expressions remain relevant precisely because the Act protects the autonomy of people who may lack decision-making capacity.
The Court rejected any requirement that preferences must be consistently expressed or objectively logical before they count. Fluctuation may affect the assessment of the evidence, but does not automatically establish that no preference exists.
Similarly, Ava’s statement that her father “could play with me” could not properly be dismissed because it reflected her level of understanding rather than the terminology of legal representation. Requiring an abstract standard of rational explanation would undermine the legislative purpose.
5.2 Giving effect is more than recording
Section 38(5) requires regard to known will and preferences when assessing a proposed DMR. Section 8(7)(b) goes further: the intervener must give effect to past and present will and preferences so far as practicable.
It was therefore insufficient merely to reproduce Ava’s statements in the judgment without explaining their role in the appointment decision. The statutory method starts with the person’s ascertainable wishes and proceeds to a reasoned determination.
However, preference does not confer an absolute veto or entitlement to a particular appointment. The court must also act in good faith and for the person’s benefit. A preferred candidate may, for example, lack necessary financial expertise or have demonstrated unreliability.
Before rejecting a preference altogether, the court should consider whether different representatives could undertake different decisions. If the final outcome departs from the person’s wishes, the judge should seek to explain why in language that person can understand.
The change is structural, not outcome-determinative: the Act changes how the decision must be reached without guaranteeing that the preferred candidate will be appointed.
5.3 Participation must be actively facilitated
Section 8(7)(a) requires participation to be permitted, encouraged and facilitated as fully as practicable. Section 139 ordinarily requires the application to be heard in the relevant person’s presence, subject to specified exceptions.
Attendance alone does not necessarily amount to meaningful participation. Where wishes are disputed, the judge must consider the best way to promote participation. This may include engaging directly with the person, but the judgment does not prescribe direct judicial questioning in every case. Appropriate supports, advocacy and sensitive methods of communication may be necessary.
6. Selecting a DMR: Suitability Before Resort to the Panel
The appointment carries substantial consequences. Unlike the former arrangement, under which significant decisions returned to the High Court, a DMR ordinarily exercises authorised decision-making powers without obtaining advance judicial permission for each decision. The DSS supervises compliance with statutory functions and receives annual reports, but does not supervise each individual decision.
That transfer of authority explains the Court’s insistence on scrupulous compliance with sections 8 and 38. Section 38(5) requires consideration of:
- known will and preferences;
- the desirability of preserving existing family relationships;
- the relationship between the person and proposed representative;
- their compatibility;
- the proposed representative’s ability to perform the functions; and
- conflicts of interest.
Under section 38(7), the court seeks DSS panel nominations where no suitable person is willing to act. A panel appointment is therefore not a shortcut around investigating willing candidates.
This is not an automatic preference for relatives. The High Court could lawfully find the father or appellant unsuitable. The problem was that it lacked sufficient information to conclude that no suitable person was willing to act.
Its concerns about possible residential disruption were legitimate, although the appellant had stated that she did not seek to move Ava. The court should also have considered whether allocating different decisions to different representatives could address those concerns while preserving family involvement.
Other deficiencies included the absence of adequate information about the panel candidate’s qualifications and suitability, and the failure to hear substantive submissions before deciding the appointment.
7. Capacity Assessment and the Breadth of Representative Powers
7.1 Capacity is functional and decision-related
Section 3 assesses capacity by reference to the person’s ability to understand, retain, use or weigh relevant information, and communicate a decision. It concerns a particular decision or class of decisions, rather than a general status derived from diagnosis.
A person’s inability to make one decision does not establish inability to make another. Section 8 reinforces that approach through its requirements of necessity, proportionality and minimum restriction. Sections 38(9) and 38(10), respectively addressing limited powers and different representatives for different decisions, support the same interpretation.
The Court rejected a reading of section 55(1)(b)(ii) that would permit an undifferentiated declaration merely because it refers to lacking “capacity” without expressly repeating the phrase “one or more” decisions. The statutory definition of capacity imports section 3’s decision-related approach.
7.2 Identifying “pools of capacity”
Assessors and courts must look beyond the headings “personal welfare” and “property and affairs”. The statutory subdivisions provide a starting point, but further differentiation may be necessary.
For example, a person might lack capacity to manage substantial assets while remaining capable of handling small daily expenditure. Another might require support with healthcare decisions but retain capacity over social activities.
These are the judgment’s “pools of capacity” within wider areas of incapacity. Recognising them protects practical autonomy, including choices that may appear modest externally but matter greatly in daily life.
The solicitor must properly brief the medical assessor about the person’s circumstances, activities, living arrangements and relevant history. The court, in turn, must evaluate that evidence rather than simply adopt broad labels.
7.3 Future decisions may fall within an order
The Court rejected the argument that powers must be limited to decisions requiring immediate resolution. Foreseeable future decisions may properly be covered where the evidence establishes the need for representative decision-making.
Otherwise, repeated applications could delay necessary decisions and deplete the person’s resources. Nevertheless, foreseeability is not a licence to include every theoretical power. Matters highly unlikely ever to arise should be excluded.
The governing question is whether the powers are as limited in scope and duration as necessary in the person’s actual circumstances.
7.4 Broad orders are not automatically invalid
The important qualification is that an individualised process can justify a broad conclusion. An order covering all personal welfare and property and affairs decisions is not necessarily unlawful if:
- the assessor has fully considered the range of relevant decisions in the person’s circumstances; and
- the court undertakes a corresponding examination of the evidence.
In Ava’s case, the medical report distinguished healthcare from other personal welfare matters and considered her ability to spend money. It drew on records, discussions and an examination. No competing medical evidence identified retained capacity, and the appellant did not explain which powers should have been excluded.
The Supreme Court therefore declined to infer an inadequate assessment or excessive order from their broad wording alone. It was willing, on this record, to infer that the High Court’s declaration rested on the individualised medical assessment.
The judgment nevertheless states that the judgment or order should make clear that relevant subcategories have been considered. Its acceptance of the record here should not be mistaken for approval of generic assessment practices.
7.5 The evidential limits of the unsuccessful challenge
The second ground failed on its particular evidential foundation. That does not establish a universal requirement for a second medical report in every challenge. Courts retain their own statutory duties even where evidence is uncontested.
The Court also distinguished the complaint concerning substantive appointment submissions from the narrower allegation that counsel had no opportunity to address scope. Given counsel’s participation and interaction with the judge, including after the order, the latter allegation lacked a sufficient evidential foundation.
8. Precedents Cited and Their Influence
8.1 KK (A Ward of Court) [2024] IECA 242
Hyland J. relied on Hogan J.’s description of the Act as the most fundamental change in the legal regime for vulnerable persons in almost 150 years. This supplied the interpretative setting: discharge is not merely an administrative transfer out of wardship, but part of a fundamental shift towards dignity and autonomy.
The authority supports reading the transitional provisions consistently with that reform, while acknowledging that wardship structures remain until discharge.
8.2 In the Matter of A [2025] IEHC 112
In that contested discharge application, Heslin J. described the person’s expressed preference as the court’s “north star”. The Supreme Court used this formulation to emphasise the centrality of will and preferences.
It did not adopt an absolute rule that preference always determines appointment. Rather, the phrase reinforces the required starting point for analysis and the need to justify departure.
8.3 In the Matter of M (A Ward of Court) [2024] 2 IR 395
The General Solicitor’s reliance on this authority was challenged because it focused on the committee’s assessment of the ward’s best interests. The present judgment does not treat that traditional approach as an adequate substitute for the discharge court’s statutory obligations.
The distinction is important: the committee retains its best-interests obligation, but must perform it by enabling the court to apply the new framework. The court itself cannot resolve the discharge application simply through the former wardship test.
8.4 Re T.H (A Ward of Court) [2022] IECA 228
This authority directly supported the reasoning about lawful instructions. Solicitors who had represented a person before wardship attempted to pursue a costs appeal without an effective retainer or instructions from someone entitled to give them.
The Court of Appeal rejected that course, emphasising that litigation exposing others to costs cannot proceed without a client. Hyland J. used the decision to explain why legal aid alone cannot authorise unrestricted representation without instructions, and why a committee or judicially defined retainer remains necessary where litigation capacity is absent.
8.5 HSE v ND [2025] IEHC 86
This case illustrated the potential tension in a guardian ad litem’s role: communicating the person’s wishes while advocating an outcome that may differ from them.
Its relevance was cautionary. Appointing another representative does not automatically eliminate the distinction between the person’s wishes and a professional assessment of their welfare. A clearly defined role remains essential.
8.6 McKelvey v Iarnród Éireann [2020] I.R. 573 and H v H [2026] IEHC 402
The appellant cited these authorities in support of fair procedures and meaningful participation. In H v H, Simons J. had granted leave for judicial review where an adult with autism spectrum disorder was allegedly neither present, represented nor appropriately assisted during Circuit Court hearings.
These cases supported the appellant’s procedural concerns, but the Supreme Court did not derive from them a general entitlement to a second legal team. Nor did it treat the leave decision in H v H as a final merits determination. Its resolution rested on the specific statutory duties governing discharge.
8.7 DD v Lithuania (CE:ECHR:2012:0214JUD001346906)
This European Court of Human Rights decision concerned the adequacy of representation in guardianship-review proceedings. The Strasbourg court found an Article 6(1) violation against a background including deficient notification, absence from the hearing, inadequate consideration of evidence and refusal of independent legal assistance.
Its key contribution was the recognition that inability to administer one’s affairs does not imply inability to express views or disagree with a guardian. The Supreme Court considered its proposed model compatible with that principle because the model requires effective presentation of wishes, participation and exceptional protective intervention where necessary.
8.8 Martinez Fernandes v Hungary (CE:ECHR:2025:0527JUD003081422)
This authority concerned Article 5 safeguards in involuntary psychiatric detention. A guardian ad litem endorsed the hospital’s application without consulting the person or ascertaining her wishes.
The Strasbourg court identified a serious representational defect. Representation involves informing and advising the person, but also exploring wishes and seeking instructions to safeguard their position effectively.
Hyland J. drew the broader lesson that representation must secure a genuine opportunity to be heard. The judgment did not hold that the Convention invariably requires a separate lawyer from the committee, or make a distinct finding that the representational model itself violated the Convention.
8.9 In Re VV [2025] IEHC 714
This was the principal authority on future decisions and the breadth of orders. Dignam J. held that a capacity declaration and DMR appointment need not be confined to decisions arising immediately, where medical evidence established a wider need.
The Supreme Court endorsed that practical reasoning: foreseeable future needs may properly be addressed without repeated applications. However, its approval must be read alongside its insistence on individualised assessment and limited powers. The case does not justify bypassing consideration of relevant decisions merely because a broad order would be administratively convenient.
9. Wider Significance and Practical Impact
For discharge courts
The judgment confirms an active responsibility to secure adequate information. The inquisitorial character of wardship proceedings means the judge is not confined to an incomplete evidential presentation. Sections 8 and 38 add specific duties concerning participation, preferences, relationships and suitability.
For committees and solicitors
Preparation must investigate alternatives rather than assemble support only for a predetermined outcome. Relevant family candidates must be considered, the person’s wishes must be properly elicited, and the assessor must receive an adequate factual briefing.
Practice Direction HC 133 provides an important procedural framework. The judgment also indicates that functional-assessment guidance may need adjustment to highlight statutory subcategories and retained areas of capacity.
For medical assessors
Diagnosis and general impairment cannot replace functional analysis. Reports should reveal the reasoning connecting the person’s abilities to relevant decisions, including distinctions between complex transactions and ordinary daily choices.
For future litigation
Challenges to broad orders should identify concrete mismatches between the powers conferred and the person’s abilities or foreseeable needs. Conversely, the absence of opposing evidence does not relieve the court of its duty to examine whether the assessment is sufficiently individualised.
For disability-rights law
The decision translates the autonomy-centred approach associated with the United Nations Convention on the Rights of Persons with Disabilities into practical statutory requirements. The CRPD informed the arguments and reform context, but the operative reasoning rests on domestic legislation. The judgment does not establish a freestanding rule of direct CRPD enforceability.
Finally, capacity review and representative selection remain distinct safeguards. A later review of capacity under section 55A is not automatically a review of the DMR’s identity. That makes proper selection at the outset especially important.
10. Complex Concepts Simplified
- Committee
- The person or office authorised under wardship to act on the ward’s behalf. It does not ordinarily represent an opposing interest in the discharge application.
- Functional capacity
- The ability to make a particular decision, assessed through the statutory understanding, retention, weighing and communication requirements—not simply through diagnosis.
- Will and preferences
- The person’s wishes and choices. These may be meaningful even where the person cannot make the legally operative decision.
- Decision-making representative
- A person authorised to make specified decisions on another’s behalf, subject to statutory limits and obligations. Appointment does not confer unrestricted control.
- Least intervention
- Restricting decision-making authority only as far as necessary, while preserving areas the person can manage.
- Inquisitorial procedure
- In this setting, a process in which the court may require further information rather than remain limited to what participants choose to present, while still respecting fair procedures.
11. Conclusion
The decision establishes that effective representation in wardship discharge depends on substance, not the automatic multiplication of legal teams. Existing representative arrangements may continue, but they must make the person’s own voice central to the process.
It also reconciles decision-specific assessment with practical flexibility: broad powers can be justified, and foreseeable future decisions included, but only through an individualised examination of necessity and retained capacity.
The Supreme Court did not decide who should become Ava’s DMR. It required a fresh decision reached through the statutory framework—a framework in which preferences cannot be discounted merely because capacity is lacking.