Re O, A Ward of Court, and Re, an Application Pursuant to Section 55 of the Assisted Decision-Making (Capacity) Act Re, a Dispute Regarding the Choice of Decision-Making Representatives (Approved)

Factual and Procedural Background

This is an application concerning the discharge of the Respondent from Wardship and a related dispute over the choice of decision-making representative (DMR) pursuant to s.55 of the Assisted Decision-Making (Capacity) Act 2015 ("the 2015 Act"). The Respondent is a woman born in the 1970s, admitted to Wardship in [year given], who has a moderate intellectual disability and certain physical and mental health needs. The General Solicitor acts as her committee. The Respondent lives in residential care operated by Company A. The matter was heard by Judge Heslin on 27 March 2026.

Legal Issues Presented

1. Whether, on the evidence, a declaration should be made under s.55(1)(b)(ii) of the 2015 Act to appoint a decision-making representative for the Respondent in the context of an application concerning discharge from Wardship.
2. If a DMR is to be appointed, whether family members (certain siblings) or an independent party should be appointed, having regard to the Respondent's will and preference and the statutory considerations in the 2015 Act (including s.38(5)).

Arguments of the Parties

Sibling C (objecting sister)

• Alleges prior coercion of the Respondent and interference with the Respondent's communications (including assertions that mobile numbers were blocked), asserting that the brother (Sibling A) would seek to limit or restrict involvement by her and her children if appointed.
• Refers to a 2019 mediation agreement among the four siblings and asserts that the brother did not adhere to its commitments.

Sibling A (brother nominated by the Respondent)

• Denies the allegations of blocking numbers or unilateral interference, asserting actions were taken in accordance with the Respondent's requests.
• States he would not seek to restrict family contact and supports involvement of an independent advocacy service to ascertain the Respondent's will and preference.
• Highlights the active supportive role of Sibling B (daily contact, bringing the Respondent home, attending appointments, travel to be with the Respondent around an operation).

Sibling D (another sister)

• Expresses concern at being excluded from correspondence and contends the brother has sought to exclude her from the Respondent's life.
• Expresses the view that it may not be in the Respondent's best interests for the brother to have responsibility over health or financial affairs, suggesting his primary interest may lie in managing the Respondent's financial affairs.

Care Placement (Company A / Employee U)

• Employee U states limited direct involvement with family members and indicates the view that an independent person may be the most appropriate choice as DMR to ensure the Respondent's will and preference are a primary consideration.
• Notes that the care placement did not discuss discharge from Wardship or who the Respondent would choose as DMR, but emphasises that the Respondent's will and preference should be taken into account.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

Judge Heslin reviewed the affidavits and medical evidence. Attorney Scanlon swore affidavits, including medical reporting dated 8 June 2025 from a consultant psychiatrist (Professor P) who assessed the Respondent on 8 May 2025 from a functional perspective under s.3 of the 2015 Act. The medical opinion was that the Respondent lacks capacity to make decisions regarding both personal welfare and property and affairs, even with assistance as a co-decision-maker; no contrary medical evidence was presented.

The Court was satisfied that service of the application was properly effected and that efforts were made to ascertain the Respondent's views. The Respondent expressed a wish for Sibling A and Sibling B to be appointed as DMRs, and those siblings indicated willingness; however, Sibling C and Sibling D raised serious objections and alleged past coercive conduct by Sibling A.

Having considered the affidavits and correspondence, the Court found there are longstanding, fundamental, and unresolved disputes among the four siblings that directly affect their relationships with the Respondent. The care placement's view favoured an independent DMR. The Court reasoned that appointing some siblings over others on the basis of the papers would require preferring one version of events over another, and that such a papers-based preference risked unfairness and a material risk that those appointed could not perform the functions of a DMR in accordance with s.38(5)(e) of the 2015 Act because it would likely exacerbate family conflict to the Respondent's detriment.

Applying the statutory framework, particularly s.38(5), the Court concluded that appointing an entirely independent party as DMR was appropriate and necessary to best facilitate ascertainment and effectuation of the Respondent's will and preference, to preserve existing relationships, and to avoid worsening inter-sibling conflict.

Holding and Implications

Declaration under s.55(1)(b)(ii) and appointment of an independent decision-making representative

Holding: The Court declared under s.55(1)(b)(ii) of the 2015 Act that an independent party should be appointed as the Respondent's decision-making representative.

Implications: Nominations will be made from the Panel maintained under the 2015 Act for approval by the President to effect the appointment of the independent DMR. The direct effect is that an independent DMR will be appointed to perform the functions described; the opinion does not purport to establish a new legal precedent beyond the decision in this matter.