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  In The Matter of a Ward of Court (Approved) [2026] IEHC 176 (20 March 2026)

URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC176.html
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APPROVED

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THE HIGH COURT

WARDS OF COURT

WOC 11279

IN THE MATTER OF A WARD OF COURT

AND IN THE MATTER OF PART 6 OF THE ASSISTED DECISION MAKING (CAPACITY) ACT 2015 (AS AMENDED)

Ex tempore ruling of Mr. Justice Nolan, delivered on the 20 th day of March 2026???????????

1. This is an application pursuant to the provisions of the Assisted Decision-Making (Capacity) Act 2015 (as amended), to discharge the ward from wardship. She suffers from significant medical issues. At present, she resides at a care home.

2. The ward's committee is the General Solicitor, who was appointed by the President of the High Court. The relief sought is that the ward be discharged with a Decision Making Representative ("DMR") to be chosen from the panel.

3. The application has been brought by an independent solicitor, under the Legal Aid scheme, representing the committee.

4. The ward's sister however seeks to be made a co-decision-maker of the ward for personal welfare only.

The Medical Evidence

5. I have had the benefit of reading the medical report of the medical visitor. He had the opportunity of meeting her and noted that she was initially admitted to a hospital when she was suffering from an acute episode. Prior to that, she had been identified as having learning difficulties and was diagnosed with a mild intellectual disability. She is on a series of medications.

6. He formed the opinion that she had very limited understanding of information in relation to aspects of her care or treatment. She had limited ability to retain information long enough to make a voluntary choice or to use information as part of the process of making decisions.

7. In relation to the capacity for personal welfare decisions, he formed the same opinion. Overall, in relation to all aspects of her life, he felt she had very little capacity to make decisions. He noted she was currently cared for in a care environment which he felt was appropriate for her needs. He concluded that in his opinion, she lacked capacity even with the assistance of a suitable person as a co-decision maker and therefore, he felt she would benefit from the appointment of a DMR.

The Independent Solicitor

8. The independent solicitor met with the ward three times, the first in early 2025, the second in September 2025, while the third was very recently in 2026. The purpose of the visits were to see if he could ascertain her will and preference in respect of the appointment of a DMR, as recommended by the medical visitor. He too formed the opinion that she was not able to express a will or preference on the issue.

9. He communicated with the ward's father, who resides outside the jurisdiction, who expressed a wish to take care of her and be her legal guardian.

10. Thereafter, he engaged with an independent social worker. On his second visit, he noted that she did not recall meeting him previously. She asked if her father or mother were going to be at the court application, and he asked if she wished her mother to be there. She replied " no, only my dad ". He inquired as to who she would like as a decision maker, and she suggested her father, on the grounds that he was very smart.

11. Recently he went to see her for the third time. On this occasion she recalled meeting him. One of her first questions related to where she was going to live and whether she would be left in her present residence. She said again that she would like to live with her dad. She said she missed him but that she did not want to leave her care home. In relation to the role played by her sister in court, which I address below, she stated that her sister wanted her to move to live with their mother because she believed she was not enjoying her current placement, despite her having expressly said that she was happy there.

The Independent Social Worker

12. In his report, the independent social worker noted that her place of residence provides a multidisciplinary approach to care and that she receives one-to-one daily support. He noted that her mother had not seen her for three years but phones regularly. It should be noted that this issue is not accepted by the ward's sister.

13. He noted that she looked very well, was dressed nicely and was pleasant and engaging. She said she was very happy where she was. Her father had seen her a couple of times in the past few months but became she upset when discussing her mother. She comprehended little about the concept of discharge from wardship. He felt that she was very settled and contented and lived a very good quality of life with lots of appropriate stimulation. He noted that she was treated with respect and dignity and her opinions were listened to.

The Affidavit of Her Sister

14. This matter came before me a number of weeks ago where counsel for the ward's sister sought an adjournment to file an affidavit. I allowed her to do so. In her comprehensive affidavit, which I found to be of assistance, she said that she and the ward are maternal sisters, having the same mother but different fathers. There is an age gap between them, but they grew up together and maintained a close bond. She noted that at the age of 16, the ward experienced her first episode of psychosis. It would seem that the ward's mother brought proceedings seeking to restrain the administration of any anti-psychotic medication, but she did not support that application, which was not successful.

15. It would seem that in 2014, the ward was discharged from hospital and returned to the family home but then was taken by her father to his residence. She stayed there for six weeks but became unwell and returned to live with the family for a short period of time.

16. In 2022, she was transferred to her current care home. However, her sister points out that it is a long way from where she and her mother reside. The assistance of an independent advocate was sought who confirmed that the ward did not want to go to a new placement. Her sister now concedes she is well settled where she is.

17. At the time that she was taken into wardship, the ward's sister and her mother sought to be appointed her committee. Unfortunately, that did not happen and the ward's sister says that no explanation was given for her not being appointed as her committee, as opposed to her mother.

18. She sets out various meetings which she had in Dublin with the ward, the last trip being in 2023. However, it seems that she suffers from intractable migraines which are triggered by long same day journeys, as does her mother. She expresses regret that she did not inform the group who run the care home about the medical reason why she could not travel long round trips in one day.

19. She says that she is a proper person to be appointed a co-decision maker relating personal welfare decisions. She says she is not seeking appointment over financial matters.

20. She says that she discussed this matter with the ward and says the ward would like her to be a co-decision maker. She disagrees with the assertion that the ward is unable to express a will or preference. She says that she has done so, particularly in the mornings and where she has familiarity and trust with those around her.

21. She says that she is a suitable candidate to be appointed since she is a qualified social worker and has worked in social care roles. She says that she speaks with the ward every day and that she understands what keeps her settled and happy. She says that she meets the statutory eligibility criteria for the appointment as a co-decision maker as set out in Section 39 of the Act.

22. In relation to her placement, she notes that the social worker who visited her noted that she was very happy there. She said that the ward has expressed a wish to remain in her current placement " for now ". She says that she only seeks to improve the least restrictive family contact aligned with clinical advice.

The Application for Legal Aid

23. At the second last hearing, counsel for the ward's sister sought the court to make a direction that an authorised official sign appropriate documentation to enable legal aid be obtained for the ward, so as to give her, the ward, " a voice ", on the basis that the legal aid certificate which has already issued was not in the name of the ward, but the ward's committee.

24. I put the matter back for submissions as to whether the court had the authority to make such an order. At the next hearing, a representative of the Legal Aid Board kindly addressed the court and sought sometime to make submissions. I have now had the benefit of reading those submissions as to the procedure for the granting of a legal aid certificate, under the Civil Legal Aid Act 1995 and the appropriate regulations. For the purposes of this ruling, there is no need to set out in full their views.

25. As noted above, a legal aid certificate has already issued to the independent solicitor in the name of the General Solicitor, as committee for the ward.

26. I am satisfied that under Section 27 of the Act, legal aid means representation by a solicitor of the Board, or a solicitor or barrister engaged by the Board in any civil proceedings. I am also satisfied that it follows that a legally aided person can only be represented with one legal aid certificate, by one set of legal representatives and cannot have two separate sets of legal representation in any particular proceedings.

27. In this case, the independent solicitor already holds a legal aid certificate on behalf of the committee of the ward. The committee for the ward, in effect, is the voice of the ward. The views of the ward are legally and comprehensively looked after by the solicitor appointed by the committee of the ward. In this case, the committee is the General Solicitor. Therefore, there are already two lawyers, acting in different capacities, protecting the best interests of the ward. Common sense, if nothing else, would dictate there is no need for a third solicitor to be engaged in this matter on behalf of the ward, or in reality, her sister. That being the case, the Court declines any request to make any orders which would direct any authorised person to sign any documentation in relation to seeking a further legal aid certificate. I do not accept the submission that the ward's sister should separately represent the views of the ward. The ward's views are already sufficiently protected.

The Ward's Sister's Suitability to Act as a Co-Decision Maker

28. Section 39 is titled " Persons who are not eligible to be decision-making representatives " and sets out a list of persons who are not suitable to be appointed as a DMR, including someone with a criminal conviction or someone who is subject to a safety or baring order in relation to the relevant person or an undischarged bankrupt. However, these criteria do not apply where the decision maker relates to the relevant person's personal welfare matters.

29. Another category which is excluded, is anybody who owns or provides a designated centre or as an employee of such a provider unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the relevant person.

30. There is nothing in the legislation which would prohibit the ward's sister from being appointed as a co-decision maker in relation to personal welfare matters.

31. However, the court has to look at the overall circumstances of the case, including the background, the geographical locations of the various parties, the relationship between mother and father and what is in the best interests of the ward, once she is discharged from wardship.

32. I have no doubt whatsoever that the ward's sister and the ward are extremely close. They share a mother and have lived close to each other for many years. However, over the recent past, they have not seen each other. I have no doubt that they are in daily contact on the phone, but that is different from daily contact in person. I appreciate that from a logistic perspective that is difficult. Nonetheless, the reality seems to be that they have not seen each other in a long time.

33. It is clear that the ward's mother was unhappy with the ward going into wardship. She certainly was unhappy in relation to the prescription of medication for the ward. The President of the High Court felt it more appropriate that neither the ward's mother nor the ward's sister be appointed her committee.

34. It is also clear that the ward's father has expressed an interest in participation in this exercise, but other than the various emails which he sent, he has not, in fact, participated.

35. The ward's sister has said that the ward has expressed a wish that she be appointed a co-decision maker. That is at odds with the affidavit of the independent solicitor who sets out his discussion with the ward on the subject. Indeed, it is notable that at no stage in the discussion with the independent solicitor did the ward ever state that she wished her mother or her sister to be her co-decision maker. Her concern was focused on whether she was to be moved from her present residence.

36. That is a concern I share. There may be a perception that whoever is the co-decision maker, may have control over where the ward resides, once she is discharged. In fact, when you look at the legislation, that is certainly one of the roles of a co-decision maker.

37. As things stand, she is very happy where she is. If she remained in wardship and if that regime were to continue, that is where she would stay, unless there was a very good medical reason for her to move.

38. Just because the wardship regime is changing to a DMR type of regime, that does not mean that she should be moved.

39. I have a concern that the appointment of a co-decision maker might be seen, within the family, as some form of power play. Further, I have a concern that given the ward's sister and mother reside at one side of the country while the ward resides at the other, a dynamic to change her residence may arise. As things stand, I do not believe that would be in the best interests of the ward, now the relevant person.

40. Given those concerns, I believe the best interests of the ward are met by my discharging her from wardship and appointing an independent DMR from the panel, pursuant to Section 55(1)(b)(ii) of the Assisted Decision-Making (Capacity) Act 2015 (as amended).

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URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC176.html