Anonymized Summary of Court Opinion

Factual and Procedural Background

This summary concerns an appeal under section 141 of the Assisted Decision-Making (Capacity) Act 2015 (as amended) from a Circuit Court decision of 20 October 2025. The Appellants (hereafter "Appellants") sought a declaration of lack of capacity and an order under Part 5 of the 2015 Act appointing them as decision-making representatives (DMRs) for the Respondent (hereafter "Respondent") in respect of specified decisions concerning the Respondent's personal welfare and property and affairs.

The Circuit Court made a declaration under s. 37(1)(b) that the Respondent lacked capacity in respect of a number of specified decisions. Instead of appointing the Appellants as DMRs, the Circuit Court judge requested that the Decision Support Service be asked to nominate two persons from its panel for the Court's consideration. The Appellants and their counsel were reportedly surprised by that decision because the possibility of requesting a nomination from the panel service had not been signalled during the hearing and had not been addressed by the parties. The parties did not appeal the declaration of lack of capacity.

The Appellants appealed to the High Court on limited points of law concerning the identity of the proposed DMRs and the Circuit Court judge's reasoning/approach. The High Court (President of the High Court, Judge Barniville) heard the appeal; the judgment in this matter was delivered on 27 November 2025.

Legal Issues Presented

1. Whether the Circuit Court erred in seeking a nomination from the panel service (the Decision Support Service, hereafter "Company A") rather than appointing the Appellants as DMRs, having regard to the guiding principles in s. 8 of the 2015 Act and the factors listed in s. 38(5).
2. Whether the Circuit Court provided adequate reasons for its decision to seek a panel nomination and whether the judge should have canvassed that possibility with the parties and clarified the Respondent's will and preferences before making the order.

Arguments of the Parties

Appellants' Arguments

• Counsel for the Appellants argued that the Circuit Court failed to give sufficient weight to the Act's guiding principles, especially the requirement to give effect, so far as practicable, to the relevant person's past and present will and preferences (s. 8(7)(b)).
• Counsel relied on s. 38(5), submitting that the Court should have had regard to the Respondent's known will and preferences, the desirability of preserving existing family relationships, the relationship and compatibility between the relevant person and proposed representatives, the ability to perform the functions, and absence of conflict of interest.
• Counsel further submitted that the Circuit Court did not give adequate reasons for opting to seek a panel nomination, and that the parties were not given an opportunity to address the possibility of a panel nominee because that option had not been raised during the hearing.

Respondent's Position

• The Respondent (through an independent solicitor) did not appeal the Circuit Court's declaration of lack of capacity and the declaration was accepted by all parties as within the Judge's discretion on the evidence before the Circuit Court.
• On the appeal, the Respondent's independent representative provided up-to-date evidence of the Respondent's will and preference: the Respondent "100% does not want a stranger" to be involved in decision-making and strongly prefers the Appellants (her father and sister) to be appointed as DMRs.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The High Court emphasised the limited scope of an appeal under s. 141 of the 2015 Act (an appeal exclusively on a point of law). The President considered the legal points raised by the Appellants' counsel and found them to be well-founded.

First, the Court analysed the statutory guiding principles in s. 8 (including s. 8(7)(b), which requires giving effect, as practicable, to the relevant person's past and present will and preferences) and the specific factors listed in s. 38(5) when considering suitability of a person to be a decision-making representative. The Court observed that the Appellants (the Respondent's father and sister) had a longstanding, close, and supportive relationship with the Respondent; the evidence established compatibility, capacity to perform the functions, and absence of conflict of interest. The Court noted there was no indication before the Circuit Court that the Respondent preferred a panel nominee rather than family members.

Second, the Court addressed the adequacy of the Circuit Court's reasons. It found that the judge, although careful and attentive in hearing extensive evidence, erred by not canvassing the possibility of a panel nomination with the parties during the hearing, by not reconfirming and clarifying the Respondent's will and preference in that context, and by not giving adequate reasons for choosing to seek a panel nomination rather than appointing the Appellants. The absence of any prior indication that a panel nomination was being considered meant the parties were not in a position to address that option.

On these two points of law (insufficient attention to the statutory guiding principles and insufficient reasons/procedural fairness in pursuing a panel nomination without canvassing it), the High Court concluded that the appeal should be allowed insofar as it related to the identity of the persons to act as DMRs. The Court found it appropriate to substitute the portion of the Circuit Court order that related to the identity of the DMRs.

Holding and Implications

HOLDING: The High Court allowed the appeal on the limited grounds raised and substituted the relevant part of the Circuit Court order of 20 October 2025 to appoint the Appellants as the Respondent's decision-making representatives in respect of the personal welfare and property and affairs decisions specified in the Circuit Court order.

Implications:

• The declaration of lack of capacity made by the Circuit Court under s. 37(1)(b) was not appealed and remains in place.
• The sole substantive change effected by the High Court is the substitution of the Appellants as DMRs for the Respondent for the decisions listed in the Circuit Court's order.
• The Court granted liberty to apply if any difficulty arises and made no further order. The opinion does not discuss broader prospective legal consequences beyond the direct effect on the parties.