Will and Preferences First: HI and JK v LM [2025] IEHC 674 and the Appointment of Decision-Making Representatives under the Assisted Decision-Making (Capacity) Act 2015

1. Introduction

This commentary examines the decision of the High Court (Barniville P.) in HI and JK v LM [2025] IEHC 674, an ex tempore but approved judgment delivered on 27 November 2025. The case addresses the proper application of the Assisted Decision-Making (Capacity) Act 2015 (as amended) (“the 2015 Act”) in appointing decision-making representatives (DMRs) for a person lacking capacity in respect of specified decisions.

The judgment is important for at least three reasons:

It clarifies how the guiding principles in s. 8 and the specific suitability criteria in s. 38(5) must be applied when selecting DMRs.
It emphasises the centrality of the relevant person’s “will and preferences” and the desirability of preserving family relationships, as against appointing “strangers” from the Decision Support Service (DSS) panel.
It restates procedural fairness requirements: if a court is contemplating appointing DSS panel nominees instead of proposed family DMRs, the parties must be put on notice and reasons must be given.

The appellants were HI (the relevant person’s father, with whom she lives) and JK (the relevant person’s sister, with whom she has a strong relationship). The respondent, LM, was the “relevant person” within the meaning of the 2015 Act. An independent solicitor, Mr Martin Lawlor, represented LM’s interests both in the Circuit Court and on appeal.

2. Background and Procedural History

2.1 Circuit Court proceedings

In the Circuit Court (South Eastern Circuit), HI and JK applied:

for a declaration as to LM’s capacity under Part 5 of the 2015 Act; and
for orders appointing them as DMRs for LM in relation to certain specified decisions concerning her personal welfare and property and affairs.

On 20 October 2025, having heard “a lengthy hearing” with “extensive evidence, including evidence from medical practitioners”, the Circuit Court Judge:

Made a declaration under s. 37(1)(b) that LM lacked capacity, even with the assistance of a co-decision-maker, to make certain specified decisions relating to personal welfare and property/financial affairs.
Instead of appointing HI and JK as DMRs, made an order requesting the Decision Support Service (DSS) to nominate two persons from the statutory panel under s. 101 for consideration by the court as DMRs for LM.

Critically, the Judge never indicated during the hearing that she was considering requesting nominations from the DSS panel as an alternative to appointing the applicants. This option “came as a complete surprise” to:

the appellants (HI and JK), and
Mr Lawlor, LM’s independent solicitor.

The parties therefore had no opportunity to make submissions on this course of action or to address LM’s preferences in this regard.

2.2 The appeal to the High Court

The appeal was brought under s. 141 of the 2015 Act, which permits appeals from the Circuit Court to the High Court “exclusively on a point of law”. Importantly:

There was no challenge to the declaration of lack of capacity under s. 37(1)(b); both sides accepted that it was open to the Circuit Court to make that declaration on the evidence.
The appeal concerned only the identity of the DMRs: whether HI and JK should have been appointed, or whether the Judge was entitled to seek nominees from the DSS panel.

When the appeal first came before Barniville P. on 24 November 2025, he identified a “very net point” that should be dealt with expeditiously. He emphasised the importance of ascertaining LM’s up-to-date “will and preference” as to who should act as her DMRs, and requested Mr Lawlor’s attendance at the subsequent hearing. Mr Lawlor then conducted further enquiries with LM and placed her current wishes clearly before the High Court.

3. Summary of the Judgment

3.1 Nature of the appeal under s. 141

The President reaffirmed that an appeal under s. 141 is:

“an appeal exclusively on a point of law”; and
not “a wide-ranging or full-blown appeal on the merits”.

Nonetheless, he accepted that two genuine points of law had been correctly identified by counsel for the appellants.

3.2 The two points of law

Failure to apply the statutory guiding principles and s. 38(5) criteria

The first point was that, in declining to appoint HI and JK and instead seeking DSS nominations, the Circuit Court Judge had not adequately taken account of:
- the guiding principles in s. 8 of the 2015 Act, especially s. 8(7)(b); and
- the specific suitability criteria in s. 38(5) governing the selection of DMRs.
Section 8(7)(b) requires particular attention be given to:

“giv[ing] effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable”.

Section 38(5) requires the court, in considering a person’s suitability to act as DMR, to have regard to:

(a) the known will and preferences of the relevant person;
(b) the desirability of preserving existing relationships within the family of the relevant person;
(c) the relationship (if any) between the relevant person and the proposed representative;
(d) the compatibility of the proposed representative and the relevant person;
(e) whether the proposed representative will be able to perform the functions to be vested in him or her;
(f) any conflict of interest.

The High Court held that “insufficient attention” had been given by the Circuit Court to these provisions and that this was an error of law.
Failure to canvass the option of DSS nominees and failure to give adequate reasons

The second point was that the Circuit Court Judge:
- did not raise or canvass with the parties the possibility of seeking a nominee from the DSS panel;
- did not reconfirm or clarify LM’s will and preferences in light of that option; and
- did not give adequate reasons for declining to appoint HI and JK and instead seeking DSS nominees.
Barniville P., while acknowledging that the Judge had devoted great care and behaved “impeccably” generally, held that this procedural course was erroneous as a matter of law and that adequate reasons had not been provided for this aspect of the decision.

3.3 Findings on LM’s will and preferences and the s. 38(5) factors

The High Court noted:

HI and JK are LM’s father and sister, respectively.
They have played “an extremely important and constructive role” in LM’s life.
LM lives with her father; her sister lives nearby and has “a very full and supportive relationship” with LM.
There was no suggestion in the Circuit Court that LM’s will and preference was for a DSS panel nominee rather than her family members if a DMR was to be appointed.

On the basis of fresh enquiries made by Mr Lawlor, LM’s current wishes were stated starkly:

“[LM] ‘100% does not want a stranger’ to be involved in her decision-making. Her very strong preference is that the persons to be appointed as her DMRs should be her father, Mr HI, and her sister, Ms JK.”

The High Court found that appointing HI and JK:

was “clearly consistent” with the guiding principles in s. 8 and with s. 38(5);
reflected LM’s “known will and preference”;
accorded with the “desirability of preserving existing relationships within the family”;
fitted the evidence of a “strong and close relationship” and “complete compatibility” between LM and her father and sister;
raised no concern about any conflict of interest; and
involved individuals who were “clearly able to perform the functions” of DMRs.

3.4 Outcome and orders

On the basis of the two identified errors of law, the High Court:

Allowed the appeal on the limited ground concerning the identity of the DMRs.
Substituted the relevant part of the Circuit Court order with an order appointing HI and JK as DMRs for LM in respect of the same decision-making areas already specified in the Circuit Court order.
Made clear that the remainder of the Circuit Court order, including the capacity declaration, remained undisturbed.
Granted liberty to apply in the event of difficulty and made no further order.

The President emphasised that appointing HI and JK as DMRs “reflects the current and up-to-date will and preference of LM” as communicated by her independent solicitor.

4. Analysis

4.1 Statutory framework: key provisions

4.1.1 Section 8 – Guiding principles

Section 8 of the 2015 Act lays down overarching principles that must guide any intervention under the Act, including the appointment of DMRs. Among the most central is s. 8(7)(b), requiring decision-makers to:

“give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable”.

The Act adopts a “will and preferences” approach rather than a traditional “best interests” test, moving in line with the UN Convention on the Rights of Persons with Disabilities (CRPD) and a rights-based capacity regime.

4.1.2 Section 37 – Declarations as to capacity

Section 37(1)(b) empowers the court to declare that a relevant person “lacks capacity, even with appropriate assistance” to make certain decisions. Such a declaration is a gateway to more intensive support measures, such as the appointment of a DMR under Part 5.

In this case, the capacity declaration was accepted as appropriate and not challenged on appeal. The judgment therefore focuses not on whether LM lacked capacity for the specified decisions, but on who should be appointed to support and represent her in those decision-making domains.

4.1.3 Section 38(5) – Suitability of a DMR

Section 38(5) is the crucial provision governing the court’s choice of DMR. It lists six factors, already quoted in full above, which must inform the court’s assessment of a proposed representative’s suitability.

The structure of s. 38(5) is significant:

It starts with “the known will and preferences of the relevant person” (s. 38(5)(a)), putting autonomy at the centre.
It then highlights “the desirability of preserving existing relationships within the family” (s. 38(5)(b)), indicating a policy preference for retaining familiar, trusted support structures where appropriate.
Only then does it move to more functional or risk-based considerations (relationship, compatibility, ability to perform functions, conflict of interest).

The High Court’s reasoning in HI and JK v LM strongly reinforces this ordering and weighting.

4.1.4 Section 101 – DSS panel

Section 101 requires the Decision Support Service to establish and maintain a panel of suitable persons who may be nominated for appointment as DMRs. These panel nominees are typically used where:

no appropriate family or natural supporter is available;
there is a conflict of interest; or
family relationships are fractured or otherwise unsuitable.

The Act does not state that DSS panel nominees are the default choice; rather, they are a safeguard and backstop. The present judgment confirms that — at least where the relevant person clearly wishes family members to act and they meet the s. 38(5) criteria — panel nominees should not be preferred without compelling reasons.

4.1.5 Section 141 – Appeals on a point of law

Section 141 provides for appeals from the Circuit Court to the High Court “on a point of law only”. This limits the High Court’s role to correcting errors of legal principle or application rather than rehearing factual disputes.

However, as this case illustrates, where the point of law concerns the application of specific statutory tests (s. 8 and s. 38(5)) to a particular situation, the High Court may need to consider updated factual material (e.g., fresh evidence of the relevant person’s will and preferences) to determine whether the legal criteria were correctly understood and applied.

4.2 Legal reasoning: prioritising will, preferences and family relationships

4.2.1 The first error of law: inadequate attention to s. 8 and s. 38(5)

Barniville P. accepted the submission that the Circuit Court had not adequately engaged with the statutory framework when deciding to seek DSS panel nominees rather than appoint HI and JK. He stated:

“the first point of law on which I think the Appellants are correct is that insufficient attention was provided by the Circuit Court Judge, in perhaps understandable circumstances, to these statutory provisions and the principles underlying them.”

This is a direct affirmation that:

It is a legal error (and thus a proper ground of appeal under s. 141) for a court not to fully apply the mandatory guiding principles and suitability criteria.
Courts must explicitly orient their reasoning around s. 8 and s. 38(5) when choosing a DMR; it is not enough simply to conclude that someone else (e.g., a panel nominee) might be “safer” or more neutral absent evidence of conflict or dysfunction in the family proposal.

In applying s. 38(5), the High Court highlighted:

LM’s known will and preferences: she “100% does not want a stranger” and strongly prefers her father and sister.
Preserving family relationships: HI and JK are deeply involved in LM’s life, with whom she lives and has a “very full and supportive relationship”.
Compatibility and relationship: the relationships were described as strong and close, with “complete compatibility”.
Ability to perform DMR functions: no evidence suggested they were unable to perform the required functions.
No conflict of interest: the Court expressly found that there was “no conflict of interest” in their acting.

On this analysis, it is clear that on the statutory criteria themselves, HI and JK were the natural choice. The court’s reasoning suggests that:

Where family members meet the s. 38(5) criteria and the relevant person clearly wants them, the burden lies on those opposing appointment to show why a different, more intrusive measure (such as appointing strangers from the DSS panel) is justified.

4.2.2 The second error of law: procedural fairness and reasons

The second error concerned both fair procedures and the duty to give reasons.

First, procedural fairness: the Circuit Court Judge did not alert the parties that she was considering seeking nominees from the DSS panel. This was “not an issue raised in the course of the arguments and evidence in the case” and the parties had “no opportunity of addressing” it. The High Court held that the Judge fell into error by:

“not canvassing the possibility of a DSS nominee with the parties, by not reconfirming and clarifying what the will and preference of Ms LM was and then by not giving adequate reasons for her decision not to appoint the Appellants … but instead to seek a nomination from the DSS panel.”

This encapsulates three related duties:

Duty to put the live issues to the parties: A judge should not decide a matter on a ground that the parties have had no chance to address, particularly where it significantly changes the nature of the order (here, moving from family DMRs to external panel nominees).
Duty to ascertain or reconfirm will and preferences: Before choosing a measure that conflicts with the person’s likely wishes (appointing “strangers”), the court must take reasonable steps to ascertain, or re-ascertain, the person’s will and preferences in light of the specific options under consideration.
Duty to give adequate reasons: The court must explain, in a way that is sufficiently clear, why it has selected one course of action over another – especially where that choice is not obviously supported by the statutory criteria and where it departs from the person’s likely wishes.

Although the judgment does not expressly reference case law on fair procedures or the duty to give reasons, its reasoning aligns with long-established constitutional and administrative law principles in Ireland: parties are entitled to know and address the issues that will determine their rights, and to receive intelligible reasons for decisions affecting them.

4.2.3 Scope of the appellate remedy: substitution rather than remittal

Having found errors of law, the High Court could in principle have remitted the matter to the Circuit Court for reconsideration in accordance with law. Instead, Barniville P. directly substituted the order by appointing HI and JK as DMRs. This course is notable for two reasons:

It underscores the narrow compass of the dispute: only the identity of the DMRs was in issue; the declaration of incapacity and the specified decision areas were uncontested.
It reflects the High Court’s assessment that, once the correct legal principles were applied and LM’s will and preferences clearly ascertained, there was effectively one answer consistent with the statutory criteria: appointment of HI and JK.

This signals that, in suitable cases, the High Court can and will make a substituted order on a s. 141 appeal where:

the legal error is clear;
the relevant statutory factors point decisively in one direction; and
remitting the matter would cause unnecessary delay in giving effect to the relevant person’s will and preferences.

4.3 Precedents and authorities

The judgment is notably self-contained and does not cite any prior judicial authorities, relying instead directly on the text of the 2015 Act and the facts as established. It is an early example of capacity jurisprudence under the new statutory regime that:

derives its reasoning primarily from the wording and structure of the 2015 Act; and
leans heavily on the Act’s own internal philosophy (will and preferences, preservation of relationships, least intrusive interventions).

While no earlier cases are expressly cited, the themes of:

respect for the autonomy and expressed wishes of persons with impaired capacity;
fair procedures in court processes; and
a duty to provide reasons;

are consistent with broader Irish constitutional and administrative law doctrines and with international human rights norms, particularly the CRPD. HI and JK v LM is therefore best understood as developing the internal logic of the 2015 Act rather than as a direct application of external case law.

4.4 Impact on future cases and practice

4.4.1 For Circuit Court judges applying the 2015 Act

The decision sends clear signals to judges operating under the 2015 Act:

Statutory principles are not optional: Express engagement with s. 8 and s. 38(5) is required when appointing DMRs.
Will and preferences are primary: Where the relevant person’s wishes are ascertainable and practicable, they should carry considerable, often decisive, weight.
Family is presumptively favoured where appropriate: The “desirability of preserving existing relationships within the family” is not mere window-dressing; it is a statutory factor that must be respected unless outweighed by other considerations (e.g., conflict of interest, inability to perform functions, relationship breakdown).
Use of DSS panel nominees must be justified: Appointment of “strangers” from the DSS panel where suitable family members are available and preferred by the relevant person will require clear, reasoned justification and proper engagement with the parties beforehand.

4.4.2 For practitioners and litigants

For solicitors, counsel, and families involved in capacity applications:

Evidence of will and preferences is crucial: Practitioners should gather and present clear evidence of the relevant person’s wishes, both past and present, regarding who should support and represent them.
Document family relationships and compatibility: Detailed evidence of the nature of the relationship, the extent of support provided, compatibility, and the absence of conflicts of interest will be central to satisfying s. 38(5).
Challenge unflagged judicial solutions: If, during a hearing, the court appears to entertain options (such as DSS nominees) that have not been pleaded or argued, parties should insist on an opportunity to address those possibilities and to update evidence of will and preferences.

4.4.3 For the Decision Support Service

The judgment implicitly delineates the role of the DSS panel:

Panel nominees are an important resource where family support is unavailable, unsuitable, conflicted, or refused by the relevant person.
They are not a default or “safer” option in cases where the relevant person clearly prefers capable and suitable family members.

This may have the practical effect of:

limiting use of panel nominees to cases where family or natural supports are genuinely inadequate or problematic; and
preserving the DSS’s resources for those more complex or vulnerable situations.

4.4.4 For the protection of rights under the 2015 Act

From a rights-based perspective, the judgment reinforces that:

the 2015 Act is about supporting people to exercise their legal capacity in line with their own will and preferences, not about replacing their choices with institutional or professional oversight unless strictly necessary;
procedural fairness — including being heard on the real issues and receiving reasons — is integral to the protection of these rights;
independent legal representation for the relevant person (here, through an independent solicitor and, practically, through legal aid) is a crucial safeguard for ensuring their wishes are properly communicated and respected.

5. Complex Concepts Simplified

5.1 “Relevant person”

Under the 2015 Act, a “relevant person” is the individual whose decision-making capacity is in question. In this case, LM was the relevant person. The entire structure of the Act is designed around respecting and supporting the relevant person’s rights and preferences.

5.2 Decision-Making Representative (DMR)

A DMR is someone appointed by the court under Part 5 of the Act to:

make specified decisions on behalf of a relevant person; and
do so in accordance with the person’s will and preferences and the guiding principles of the Act.

The role is more protective and substitute in nature than support arrangements such as decision-making assistance or co-decision-making, and is reserved for situations where the person cannot make certain decisions even with appropriate support.

5.3 Co-decision-maker vs DMR

A co-decision-maker shares decision-making with the relevant person but does not replace it; decisions are made jointly.
A DMR can make decisions on behalf of the relevant person, but must still be guided by the person’s will, preferences and rights as far as possible.

The Circuit Court found that LM lacked capacity even “with the assistance of a co-decision-maker”, which is why the more intensive measure of appointing DMRs was considered.

5.4 Will and preferences vs best interests

Traditional capacity regimes often used a “best interests” test, in which decision-makers would determine what they thought was best for the person. The 2015 Act changes this approach:

Decision-makers must prioritise the person’s “will and preferences” — what the person wants, or would have wanted — as far as practicable.
“Best interests” language is largely avoided in the Act and replaced by a rights-based, autonomy-focused standard.

HI and JK v LM is a strong illustration of this shift: the court explicitly privileges LM’s insistence that she does not want “a stranger” and wishes her father and sister to be involved.

5.5 Ex tempore and approved judgment

An ex tempore judgment is delivered orally by the judge at the end of a hearing, rather than in a reserved, written form.
An approved judgment is one that the judge has reviewed and formally approved for publication and citation, even if it was originally ex tempore.

Despite being ex tempore, this judgment has been approved and carries precedential weight in future applications of the 2015 Act, especially in the High Court and Circuit Court.

6. Conclusion: Key Takeaways and Broader Significance

HI and JK v LM [2025] IEHC 674 is a significant early High Court authority on the interpretation and application of the Assisted Decision-Making (Capacity) Act 2015 as amended. Its main contributions can be distilled as follows:

Will and preferences are central, not peripheral.

Courts must actively ascertain and give effect, as far as practicable, to the relevant person’s own will and preferences, especially regarding who should support or represent them. LM’s expressed view that she “100% does not want a stranger” was treated as fundamental.
Family-based support is strongly preferred where suitable.

Section 38(5) is given real substance: the desirability of preserving existing family relationships and the quality of those relationships must be weighed heavily. In the absence of conflict of interest or inability, the appointment of capable, trusted family DMRs should not be displaced by strangers from a panel without compelling justification.
Use of DSS panel nominees is a residual, not default, measure.

DSS panel nominees fulfil an essential role where family or natural supports are unavailable, unsuitable or unwanted by the relevant person. But they are not the starting point where the person clearly prefers known supporters who satisfy the statutory criteria.
Procedural fairness and reasons are legal requirements.

Judges must canvass any new options they are contemplating with the parties, re-ascertain the relevant person’s will and preferences in light of those options, and provide adequate reasons where they reject a proposed family DMR in favour of an alternative arrangement.
The High Court can substitute orders on a point-of-law appeal where appropriate.

On a s. 141 appeal limited to a point of law, the High Court is not confined to remittal; it may substitute its own order, particularly where the correct application of the statute to the facts is clear and further delay would undermine the relevant person’s rights.

In the broader legal context, the decision consolidates the 2015 Act’s move away from paternalistic “best interests” models and towards a rights-based, CRPD-consistent framework that respects autonomy, values natural support networks, and demands procedural fairness at every stage. It will likely serve as a key reference point for Circuit Court judges, practitioners, and the Decision Support Service in future capacity and DMR appointment cases.

Will and Preferences First: HI and JK v LM [2025] IEHC 674 and the Appointment of Decision-Making Representatives under the 2015 Act