Capacity for change
The first years of the operation of the Assisted Decision-Making (Capacity) Act 2015 have not been without difficulty – understandable, given the scope of the legislative changes. Áine Hynes SC provides an update, three years on
Irish capacity law is currently undergoing its greatest change.
The Assisted Decision-Making (Capacity) Act 2015 (ADMC) was signed into law in December 2015 and was amended by the Assisted Decision-Making (Capacity) (Amendment) Act 2022.
The majority of its provisions were commenced on 26 April 2023.
The 2015 act was implemented with the aim of enabling Ireland to fully ratify the UN Convention on the Rights of Persons with Disabilities (CRPD).
The legislation was also informed by the Law Reform Commission’s 2005 paper Vulnerable Adults and the Law: Capacity.
The CRPD is reflective of changes in societal attitudes towards disability: it is designed to ensure that people with disabilities enjoy fundamental human rights, including autonomy rights, equally to people without disabilities.
The CRPD calls for supported decision-making for those who may suffer from a mental disability, rather than substituted decision-making.
As practitioners will know, the ADMC provides for the phasing out of the current wardship regime and makes statutory provision for supported decision-making, with substituted decision-making as an option of last resort.
It obliges any decision-maker to give effect, insofar as is practicable, to the past and present will and preferences of the relevant person, insofar as that will, and those preferences, are reasonably ascertainable.
Equal treatment
The rights of persons lacking capacity to be treated equally within the legal system and to be treated with humanity and respect is embedded in our Constitution.
Hamilton CJ articulated this with great compassion in the very tragic case of Re a Ward of Court (No 2):
“The loss by an individual of his or her mental capacity does not result in any diminution of his or her personal rights recognised by the Constitution, including the right to life, the right to bodily integrity, the right to privacy, including self- determination, and the right to refuse medical care or treatment. The ward is entitled to have all these rights respected, defended, vindicated and protected from unjust attack, and they are in no way lessened or diminished by reason of her incapacity.”
Mental illness and disability are part of the human condition.
Capacity legislation to protect the rights of persons lacking capacity is not a modern creation.
The origins of our wardship laws derive from the 1324 English statute De Praerogativa Regis. This statute provided protection for the property of a person who lost capacity.
The wardship jurisdiction was regulated ultimately in Ireland by the Lunacy Regulation (Ireland) Act 1871, which set out in detail the legal procedures for dealing with the person and estates of persons of unsound mind.
It also established supervisory provisions, including the role of medical visitors and inspections. Over time, the jurisdiction became vested in the President of the High Court.
Capacity lists
Mr Justice Peter Kelly took up the role of President of the High Court in 2015.
He utilised the provisions of the 1871 act to the full and improved the way wardship proceedings are conducted, ensuring that the voice of the person, the subject of capacity proceedings, is heard and that appropriate legal safeguards are deployed, including regular reviews of capacity and assigning legal representation to the ward.
In addition, the wardship jurisdiction has been employed to great effect over the past ten years to provide deprivation-of-liberty safeguards for those who are detained in hospital and residential settings.
In AM v HSE, the Supreme Court described, by reference to the practice of Kelly P, the deprivation-of-liberty safeguards that should be applied in wardship detention cases.
It is worthwhile stating that the safeguards developed by Kelly P in wardship detention cases are those that are applied to the detention cases now dealt with under the inherent jurisdiction of the High Court – this is well described by Hyland J in Re KK (2023) and by O’Donnell J in Re ND (2025).
Barniville P continued the practices initiated by Kelly P and has issued very important and helpful decisions in wardship and capacity cases, including Re CF (2023), Governor of a Prison v XY (2023), Re MC (A Ward of Court) (2024), Re RK: DK and CK v PK (2025), and Re DE (a Minor) (2025).
The first years of the operation of the ADMC have not been without difficulty – some of that is understandable, given the scope of the legislative changes.
Discharges from wardship
The numbers of wards seeking discharge from wardship is far less than anticipated by the Government.
The legislation provides that all adult wards of court must be reviewed and discharged from wardship by 26 April 2026. As of October 2025, some 1,600 wards or their committees had not yet applied for discharge.
In October 2025, Barniville P listed all of the remaining cases so as to initiate the discharge process for those remaining wards where applications had not been initiated.
Despite Barniville P and the other three judges assigned in wardship (along with the Office of Wards of Court) making every effort to initiate and progress the discharge applications, logistically, it simply wasn’t possible for the statutory deadline to be met.
Amendment Bill 2026
While all applications for discharge have commenced, some 1,400 wards remain undischarged, as of 17 March 2026.
Urgent legislative amendments are tabled now by way of the Assisted Decision-Making (Capacity) (Amendment) Bill 2026. The intention of the legislature is that the wardship court can extend, in individual cases, the three-year time period, beyond the deadline of 26 April 2026.
Section 1(a) of the Amendment Bill provides that an initial extension can be made by the wardship court where “good reason has been shown as to why that time period will not be met, and it is in the interests of justice to do so”.
A further extension can be made in exceptional circumstances. Section 1(g) provides that “any extensions of time granted in respect of any matter by the wardship court pursuant to this subsection shall not exceed an overall time period of 18 months.”
Accordingly, in each case where it appears that a ward cannot be discharged by the 26 April 2026, the Amendment Bill requires the wardship court to list each of the remaining circa 1,400 cases, so that the wardship court can consider each case and be satisfied to extend the period of time for discharge in each case.
Speaking at a book launch on 11 March, it was stated that Barniville P and other judges assigned in wardship will need to sit over the Easter vacation to hear these cases.
This is an unnecessary burden on the wardship court, the Office of Wards of Court, and practitioners – and will significantly impact on the wardship court’s ability to hear the remaining cases for discharge.
The proposal will give rise, also, to increased legal costs and will impact on wards and their families.
A simple extension to the time period specified in section 54(2) of the ADMC should be made – for perhaps one year.
Should any wards remain undischarged at that time, individual cases could be set down for specific further extension for exceptional reasons.
Circuit Court applications
The number of Circuit Court applications is lower than anticipated, with some 2,000 completed by December 2025. Concerningly, very few co-decision-making arrangements and assisted decision-making arrangements have been completed, with just 171 co-decision-making arrangements and 194 assisted decision-making arrangements registered with the Decision Support Service (DSS) at year-end December 2025.
The numbers of registered EPAs (enduring powers of attorney) have now increased to over 5,000, which is very welcome.
These three arrangements need to be completed via the digital MyDSS portal. Due consideration must be given to assisting those who need the arrangements the most, including removing any digital barriers to accessing these arrangements.
It is to be hoped that there will be a greater take-up of the supported decision-making arrangements and the creation of EPAs.
It is, of course, essential that all of the relevant stakeholders work together constructively to overcome any remaining obstacles for the benefit of those who need the legislation the most and for whom the legislation is intended to benefit.
Our capacity laws – and, crucially, the manner in which they are implemented – must serve to advance the full and equal enjoyment of fundamental constitutional and human rights by persons with disabilities.
Áine Hynes SC chairs the Law Society’s Task Force on Mental Health and Capacity Law. She is the author of Irish Legal Capacity and Assisted Decision-Making, published on 11 March by Bloomsbury Professional.