Assisted Decision-Making (Capacity) Act 2015 Explained: Capacity, Wardship and Personal Injury Settlements in Ireland

Quick Reference: ADMCA 2015 at a Glance

Full title

Assisted Decision-Making (Capacity) Act 2015

Act number

Act No. 64 of 2015

Date enacted

30 December 2015

Substantially commenced

26 April 2023 (S.I. No. 192/2023, S.I. No. 193/2023, S.I. No. 194/2023)

Sections

146 sections across 12 Parts plus a Schedule

Last amended

31 March 2026 by the Assisted Decision-Making (Capacity) (Amendment) Act 2026 (Act No. 8 of 2026)

Primary source

Official text on irishstatutebook.ie

Revised version

Consolidated text (Law Reform Commission)

Contents

What the Act Does

The Act reforms Irish capacity law by repealing the Lunacy Regulation (Ireland) Act 1871 and the Marriage of Lunatics Act 1811 (s.7), replacing the historic wardship regime with a graduated framework of decision-support arrangements. It moves the law from a status-based "all or nothing" approach to a functional test under which capacity is assessed in relation to the specific decision and the specific time at which it falls to be made (s.3).

The functional test sits at the heart of the new regime. Section 3(2) of the Act provides that a person lacks capacity to make a decision only if he or she is unable to understand the information relevant to the decision, retain that information long enough to make a voluntary choice, use or weigh that information as part of the decision-making process, or communicate the decision (whether by talking, writing, sign language, assistive technology, or any other means). Capacity for one decision says nothing about capacity for another.

The Act also gives statutory effect in Ireland to the Convention on the International Protection of Adults (Part 11) and creates the Decision Support Service (DSS) within the Mental Health Commission to register, supervise and investigate decision-support arrangements (Part 9). It applies to adults aged 18 and over; minor wardship of children under 18 continues under the existing Courts Service framework, as confirmed by the Courts Service guidance on commencement.

The decision-support framework operates as a graduated set of three tiers — decision-making assistance (lightest), co-decision-making (middle), and decision-making representation (most intrusive). Section 8 binds every intervener to use the least intrusive arrangement that meets the relevant person's needs, and to give effect to that person's will and preferences as far as practicable. Two further future-planning instruments — enduring powers of attorney (Part 7) and advance healthcare directives (Part 8) — sit alongside the three-tier framework and allow people with full capacity to plan ahead for a time when they may not.

Key Sections of the Act

The Act's 12 Parts each carry distinct functions. The provisions most relevant to Irish personal injury practice are concentrated in Parts 1, 2, 3, 4, 5, 6, 7, 8 and 12. The sections below are the operative provisions practitioners encounter most often when a client's capacity is in issue or a catastrophic settlement is being structured.

Section 3: Person's Capacity to Be Construed Functionally

Section 3 establishes the functional test that anchors the entire statute. Capacity is assessed by reference to a person's ability to understand, at the time the decision is to be made, the nature and consequences of the decision in the context of the available choices.

The functional test is decision-specific and time-specific: a person may have capacity to consent to dental treatment but lack capacity to manage the proceeds of a seven-figure clinical negligence settlement. That granularity is what allows tiered support to operate at all.

Section 7: Repeal of the Old Wardship Regime

Section 7 repealed two pieces of historic capacity legislation, but on different commencement dates. Section 7(1) repealed the Marriage of Lunatics Act 1811 with effect from 1 February 2021, on foot of S.I. No. 24 of 2021 signed by the Minister for Children, Equality, Disability, Integration and Youth on 27 January 2021, following a constitutional challenge by an intellectually disabled man who wished to marry his long-term partner. Section 7(2) repealed the Lunacy Regulation (Ireland) Act 1871 with effect from 26 April 2023 (S.I. No. 192/2023), the date the substantive Act came into force.

The 2023 repeal closed the door to new adult admissions to wardship — the Wards of Court Office stopped accepting adult applications on 25 April 2023, as recorded in the Courts Service announcement.

Section 8: Guiding Principles

Section 8 establishes the principles binding on every intervener — including decision-making representatives, attorneys under enduring powers, and the courts themselves. The presumption of capacity is the foundation; supports must be tried before substituted decision-making is contemplated; and the past and present will and preferences of the relevant person must be given effect insofar as practicable.

Section 8(4) embeds a particularly important principle: the fact that a person is likely to make an unwise decision is not, of itself, a reason to find a lack of capacity. The starting point of any intervention is not the optimum outcome for the relevant person but what is the will and preference of the relevant person — a distinction reaffirmed by Mr Justice O'Connor in the Circuit Court in In the Matter of JD [2025] IECC 1.

Section 10: Decision-Making Assistance Agreement

Section 10 creates the lightest of the three statutory tiers. The relevant person retains decision-making authority; the assistant helps obtain information, communicate the decision, and make the person's will and preferences known. No court involvement is required and no DSS registration is mandatory.

Section 17: Co-Decision-Making Agreement

The middle tier under Section 17 creates a joint decision-making structure between the relevant person and a co-decision-maker. The agreement must be registered with the DSS to take effect (s.21) and is reviewable on application or on the DSS's own motion. Take-up of co-decision-making has been low — the Law Society Gazette reported only 171 such agreements registered with the DSS by year-end December 2025.

Section 38: Decision-Making Representation Orders

Section 38 empowers the Circuit Court to make a decision-making representation order — a "DMR order" in practitioner parlance — where the court is satisfied, having regard to the s.8 principles, that the relevant person lacks capacity to make a particular decision even with the assistance of a co-decision-maker. The order must be as limited in scope and duration as is reasonably practicable, and the appointed representative must apply the s.8 principles in every decision taken. The Section 38 procedure is the spine of post-wardship practice for adults lacking capacity, and is treated in detail under "How a Section 38 Application Works" below.

Section 54: Review of Capacity of Adult Wards

Section 54 required every adult ward to have their capacity reviewed by the wardship court within three years of commencement — that is, by 26 April 2026. The Section 54 review is functional, supported by reports from the Court's Medical Visitor, and culminates either in discharge with full restoration of decision-making authority or in a declaration leading to a tiered support order under Part 5.

Sections 59–60 and 81: Enduring Powers of Attorney (Part 7)

Part 7 of the Act overhauled the law on enduring powers of attorney (EPAs), replacing the regime that operated under the Powers of Attorney Act 1996. Under Section 59, an EPA is an instrument by which a donor, while having capacity, appoints an attorney to act on the donor's behalf in relation to either personal welfare decisions or property and affairs decisions, or both, in the event that the donor subsequently lacks capacity. Section 60 sets out the formal content requirements for the instrument creating the EPA — the document must satisfy prescribed conditions and include statements from the donor, the attorney, a qualified healthcare professional, and a legal practitioner before it can be registered with the DSS.

The two-stage operation is critical. An EPA executed under Part 7 is not effective immediately. It is registered with the DSS in two stages: first, a notification of execution under s.61, and second, an application for registration under s.68 once the donor has lost capacity. Only after Stage 2 registration does the attorney's authority to act crystallise. Section 81 provides transitional protection for EPAs created under the 1996 Act before commencement — those EPAs continue in force, and an attorney already acting under a 1996 EPA does not need to convert it to the new regime, although new EPAs must comply with the 2015 Act's requirements. The Law Society Gazette has reported strong take-up of the new EPA regime, with over 5,000 EPAs registered with the DSS by year-end December 2025.

Sections 84–87: Advance Healthcare Directives (Part 8)

Part 8, anchored at Section 84, gives statutory recognition to advance healthcare directives (AHDs) — written instructions about future medical treatment intended to take effect when the person making them subsequently lacks capacity. Section 84 sets out the formal requirements: the directive must be made by a person aged 18 or over with capacity, in writing, signed and witnessed, and naming the treatment refused or requested.

Section 85 governs the validity and applicability of an AHD — it must be specific to the treatment situation that arises, and the directive-maker must not have done anything subsequently that is clearly inconsistent with the directive. Where these conditions are met, Section 86 provides that the directive is as effective as if the relevant person had made the decision contemporaneously with capacity. Section 87 permits the appointment of a designated healthcare representative empowered to ensure the directive is honoured and, where the directive provides, to make healthcare decisions on the person's behalf.

Section 91 obliges the Director of the DSS to publish codes of practice for healthcare professionals on the operation of Part 8. The first major judicial treatment of an AHD under Part 8 came in Governor of A Prison v X.Y. [2023] IEHC 361, discussed below — Barniville P confirmed both the validity of an AHD on the facts and the threshold issue that any application to court under Part 8 must first obtain the court's consent under s.92(2).

Section 138: Decisions Outside the Act's Reach

Section 138 sets the boundary of the Act's substituted decision-making framework. The Act expressly does not alter the law on capacity or consent in nine listed matters: marriage; civil partnership; judicial separation, divorce or non-judicial separation; the dissolution of a civil partnership; the placing of a child for adoption; the making of an adoption order; guardianship; sexual relations; and serving as a member of a jury. Some of these matters are governed by separate statutory regimes; others are inherently personal and cannot be exercised by substitution at all.

What this means in practice for personal injury proceedings is that where a question of capacity to marry, to consent to adoption, or to serve on a jury arises in the life of a relevant person who has been the subject of a DMR order, the order does not extend to those decisions and a separate capacity determination is required. The Circuit Court in AB v A Residential Centre [2025] IECC 7 (Judge Shannon, 4 November 2025) addressed precisely this pattern — capacity to marry must be assessed against a low, functional threshold under s.3, and the presumption of capacity in s.8(2) governs.

How the Act Has Been Amended

The Act sat largely uncommenced for nearly eight years. Its substantive operation depended on the Decision Support Service being staffed, on Circuit Court rules being drafted, and on a substantial amending Act being passed.

Principal amendments and commencements affecting the Act

Date	Instrument	Effect
30 Dec 2015	ADMCA 2015	Act signed into law; partial commencement only
1 Feb 2021	S.I. No. 24/2021 commencing s.7(1)	Repeal of the Marriage of Lunatics Act 1811; wards of court no longer disbarred from marrying by reason of wardship status
17 Dec 2022	ADMC (Amendment) Act 2022	Substantially amended Parts 5, 6, 7, 8, 9; aligned the Act with the UN Convention on the Rights of Persons with Disabilities
26 Apr 2023	S.I. Nos. 192, 193, 194 of 2023	Substantive commencement; s.7(2) repeal of the Lunacy Regulation (Ireland) Act 1871; Wards of Court Office closed for new adult admissions; DSS opened
31 Mar 2026	ADMC (Amendment) Act 2026 (Act No. 8/2026)	Empowered the wardship court to extend the s.54 review deadline beyond 26 April 2026 by up to 18 months in total. For matters under s.54(1) or (2), the new s.54(2A)(g) caps any extension at the earlier of 18 months or 25 October 2027. For matters under s.54(3) (wards reaching 18 after the original window), the new s.54(3A)(g) caps extensions at 18 months but contains no outer-date limit.

The 2026 amendment is significant for active personal injury proceedings involving adult wards. As the Irish Times reported in early April 2026, of more than 1,700 adult wards subject to review, only some 619 had been discharged by the original deadline; High Court special sittings under President Barniville and Heslin J granted six-month extensions in almost 400 cases on the day after the amendment was signed by President Connolly.

How a Section 38 Application Works in Personal Injury Practice

The Section 38 procedure is the operative mechanism by which a Circuit Court appoints a decision-making representative for an adult who lacks capacity. For personal injury practitioners, the procedure is most often invoked in catastrophic injury cases — adult plaintiffs with acquired brain injury, advanced dementia, or significant cognitive impairment who must reach a settlement, accept a Periodic Payments Order, or have proceeds lodged in court for future management. The procedural detail matters because the order's scope and duration are set by the application; getting either wrong has long-term consequences for the relevant person.

Section 36: Who Can Apply

Section 36 sets out the categories of person who may apply to the Circuit Court for a declaration as to capacity and for the appointment of a decision-making representative. Eligible applicants include the relevant person; a spouse, civil partner, or cohabitant; a decision-making assistant or co-decision-maker already acting; an attorney under an EPA; a designated healthcare representative; a parent or sibling; a child of the relevant person aged 18 or over; a healthcare professional involved in the relevant person's treatment; and a representative of the HSE or the Mental Health Commission.

Anyone outside those categories — a more distant relative, a long-term friend, or a treating clinician without a direct caregiving relationship — must obtain the court's consent under s.36(3) before bringing the application. In personal injury practice the application is most commonly brought by a parent, spouse, or sibling who would have served as next friend in the litigation.

Section 37: The Capacity Declaration

The court's first task on a Section 38 application is the capacity declaration under Section 37. The court must declare either that the relevant person lacks capacity unless the assistance of a co-decision-maker is made available (s.37(1)(a)), or that the relevant person lacks capacity even with such assistance (s.37(1)(b)). Only the latter declaration supports the appointment of a decision-making representative.

The s.37(1)(b) declaration is supported by expert evidence under s.50, typically a report from a registered medical practitioner — and frequently a consultant psychiatrist or neuropsychologist — applying the s.3 functional test to the specific decisions in issue. The DSS Codes of Practice for Healthcare Professionals (March 2023) set out detailed minimum standards for capacity assessment that the court expects the report to satisfy. Reports based on assumptions without justification will be treated with great caution by the court, as Judge O'Connor confirmed in In the Matter of JD [2025] IECC 1.

Section 41: The Duties of a Decision-Making Representative

Once appointed, the decision-making representative's authority is governed by Section 41, which operationalises the s.8 guiding principles for the DMR's role. The representative must permit, encourage and support the relevant person's participation in the decision; ascertain the will and preferences of the relevant person; act in good faith and for the relevant person's benefit; and consider the views of any person named by the relevant person.

Section 44 imposes specific restrictions. A DMR cannot make a gift of the relevant person's property except where the decision-making representation order makes specific provision (s.43(1)), cannot exercise any powers in relation to the settlement of any part of the relevant person's property without the express approval of the court (s.44(3)(a)), cannot exercise any other power vested in the relevant person without the express approval of the court (s.44(3)(b)), and cannot prohibit a particular person from contact with the relevant person (s.44(1)). Where the DMR proposes any of these restricted acts, a fresh application to the Circuit Court is required. The Circuit Court applied these limits strictly in In the Matter of AB [2024] IECC 16, refusing a DMR's application to transfer the relevant person's family home into joint names with his spouse on the basis that "convenience" did not justify a gift of the relevant person's property.

Section 100: The Court Friend

The access-to-justice mechanism that makes Section 38 procedure workable is the court friend under Section 100. A court friend is appointed by the court to assist the relevant person to participate in proceedings, communicate the relevant person's will and preferences to the court, and advocate on the relevant person's behalf. The court friend is drawn from a panel maintained by the DSS.

The court friend's role is distinct from that of an independent solicitor representing the relevant person. Where independent legal representation is in place, the court friend supplements rather than replaces that role. As Judge O'Connor observed in In the Matter of AB [2024] IECC 16, the duty of a lawyer acting for a relevant person who lacks capacity is not confined solely to obtaining instructions directly — even where instructions cannot be obtained, the lawyer should investigate the application and advise the court on whether the relevant person's rights are being protected.

The General Solicitor for Wards of Court

Although the wardship system is being wound down, the General Solicitor for Minors and Wards of Court continues to play a role for legacy wards transitioning out under the Section 54 / 55 review process, and may be appointed as a DMR by the Circuit Court where no suitable family member is available. The General Solicitor's office, located in Phoenix House, Dublin 7, is operationally distinct from the Office of the Wards of Court but works alongside it on discharge applications. For minor wards reaching majority, the General Solicitor's role typically transitions to a fresh Section 38 application once the ward turns 18.

The Hearing and the Relevant Person's Attendance

Section 139 of the Act provides that a Part 5 application must be heard in the presence of the relevant person unless the court is satisfied that absence will not cause injustice, that attendance may have an adverse effect on the relevant person's health, that the relevant person is unable to attend, or that the relevant person is unwilling to attend. In Joan Doe v HSE and John Doe (8 December 2023), Judge O'Connor dispensed with the s.139 attendance requirement on the basis that the relevant person's voice was represented throughout by an independent solicitor — and emphasised that even where the relevant person does not attend, the court will strive to obtain their voice through an advocate or specialist lawyer.

Leading Cases on Capacity in Irish Law

The body of case law specifically interpreting the 2015 Act has grown substantially since commencement in April 2023. The pre-Act constitutional anchor remains the leading Supreme Court authority on the rights of persons lacking capacity, and the post-Act decisions show how the new framework is being applied in practice — particularly in medical and procedural contexts directly relevant to personal injury proceedings.

How the Act Interacts with Other Legislation

The Act does not operate in isolation. In personal injury practice, four intersections matter most.

Interaction with the Civil Liability Act 1961

Section 67 of the 1961 Act preserves the rule that a person under disability sues by next friend. Where an adult plaintiff lacks capacity to instruct a solicitor, the procedural mechanism is now a Part 5 application under the 2015 Act for an order authorising a decision-making representative to instruct, settle and accept lodgments. The DMR replaces what would, in pre-Act practice, have been a committee under wardship. The Civil Liability Act 1961 remains the substantive law governing the claim itself; the 2015 Act governs only who has authority to act on the claimant's behalf.

PPOs and DMR Orders in Catastrophic Injury Settlements

The Periodic Payments Order regime under Part IVB of the 1961 Act (ss.51H–51O, inserted by the Civil Liability (Amendment) Act 2017) frequently operates in tandem with a decision-making representation order. The interplay matters because the two orders address different things: a PPO directs how compensation is paid (index-linked annual payments rather than a lump sum); a DMR order directs who controls the receiving end where the relevant person lacks capacity. The two fora are different — PPO jurisdiction lies with the High Court hearing the personal injury action, while a Section 38 application lies in the Circuit Court — and the orders must be sequenced correctly.

The practical sequence in a catastrophic case is typically: (1) the High Court approves the settlement and makes the PPO under Part IVB of the 1961 Act; (2) a parallel or subsequent Section 38 application in the Circuit Court appoints a DMR with authority to receive and administer the PPO instalments; (3) a portion of the lump-sum element is lodged in court under Order 22 RSC where appropriate; and (4) ongoing DSS supervision of the DMR's reporting and accounts begins under ss.41 and 46. Settlement structuring for adult plaintiffs likely to need long-term decision-support should plan for this dual-track procedure from the outset, including choice of decision-making representative, scope of the DMR order, and identification of the right Circuit Court venue.

Section 44(3) of the 2015 Act imposes an important restriction on settlement: the DMR cannot exercise any powers in relation to the settlement of any part of the relevant person's property (s.44(3)(a)) or exercise any power vested in the relevant person, including the power to consent to the resolution of court proceedings (s.44(3)(b)), without the express approval of the court. This means that even where a DMR order is in place authorising the DMR to manage the proceedings, the settlement itself must come back to the Circuit Court (or the High Court if proceedings are there) for ratification before it can take effect. Judge O'Connor cited section 44(3)(a) on precisely this point in Joan Doe v HSE (2023) when restricting a DMR's authority to dispose of property.

Interaction with the Statute of Limitations 1957 / 1991 Amendment

Section 49 of the 1957 Act (as amended) suspends the limitation clock while a person is "of unsound mind" — a phrase the Oireachtas chose to leave unchanged when enacting the 2015 Act. Practitioners therefore face a definitional gap: capacity for limitation purposes is still assessed against the older formulation, while capacity for decision-support purposes is assessed functionally under s.3 of the 2015 Act. The two assessments often produce the same answer in catastrophic injury cases but the legal route to the answer differs.

Interaction with Order 22 of the Rules of the Superior Courts

The infant ruling procedure for court approval of minor settlements is unaffected by the 2015 Act — minor wardship continues, and Order 22 RSC still requires every settlement of a minor's claim to be approved by the court. The 2015 Act intersects only at the moment the minor turns 18, when the procedural status of the litigation must be revisited and, if the now-adult plaintiff lacks capacity, a Section 38 application substituted for the minor wardship arrangement.

The Act in Personal Injury Practice

In practice, decision-making representation orders under s.38 are most often sought in catastrophic injury settlements where the plaintiff is an adult with acquired brain injury or significant cognitive impairment, has not made an enduring power of attorney, and is no longer eligible for the old wardship route. The Circuit Court order specifies the precise scope of the representative's authority — typically extending to settlement acceptance, lodgment of court funds, ongoing receipt of PPO instalments, and discharge of legal costs — and is reviewed on a defined cycle.

What changed in the 2026 amendment is procedural rather than substantive: the wardship court now has individual-case discretion to extend a Section 54 review where good reason is shown and an extension is in the interests of justice. For matters under s.54(1) or (2) — the bulk of existing adult-ward cases — discharge must be completed by the earlier of 18 months from the original deadline or 25 October 2027. For matters under s.54(3) (wards who reach 18 after the initial review window), the 18-month extension cap applies but the Act contains no fixed outer-date limit. For practitioners with a client whose proceedings remain titled "A Ward of Court" pending discharge, the inheritance of that title from the older regime now operates against either a hard statutory long-stop or an 18-month soft cap depending on the cohort.

One detail that catches lay clients off guard: the Decision Support Service does not authorise individual settlement figures. Settlement quantum remains a matter for the parties (and, where the relevant person lacks capacity, for the Circuit Court applying the s.8 principles). The DSS supervises the decision-making representative's continuing performance of duties, including reporting and accounts under ss.41 and 46, but is not itself a quantum-approval body. The Circuit Court hearing the s.38 application functions in that role.

The volume of post-2023 case law also tells a story about take-up. As of year-end December 2025 — some 32 months after commencement — only around 2,000 Section 38 Circuit Court applications had been completed, and only 171 co-decision-making agreements and 194 decision-making assistance agreements had been registered with the DSS. Enduring powers of attorney, by contrast, have crossed the 5,000-registration mark. The implication for personal injury practitioners is that the Section 38 procedure remains comparatively rare, the Circuit Court is still building procedural rhythm, and individual cases are receiving close judicial attention.

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.

per Hamilton CJ in In re a Ward of Court (No 2) [1996] 2 IR 79 at 126

Frequently Asked Questions

Is the Assisted Decision-Making (Capacity) Act 2015 still in force?

Yes. The Act has been substantively in force since 26 April 2023 and, as amended by the 2022 and 2026 Amendment Acts, remains the operative capacity statute in Ireland.

The 2026 amendment did not change the substantive framework of decision-support tiers or the functional test for capacity. It addressed a single operational problem: that several hundred existing adult wards would not be reviewed under s.54 by the original 26 April 2026 deadline. The wardship court can now extend that deadline on a case-by-case basis under new s.54(2A) and s.54(3A). For matters under s.54(1) or (2), no extension may run beyond 25 October 2027 (or 18 months from the original deadline if earlier); for matters under s.54(3), extensions are capped at 18 months but the Act sets no fixed long-stop date.

Practitioner note: The Act is still in transition. Practitioners advising on wardship discharge should check the most recent S.I. amendments and the DSS Codes of Practice, which are updated periodically.

Read more: See the Decision Support Service legislation page for the consolidated S.I. list.

Does the Act apply to children under 18?

No. The decision-support tiers under Parts 3, 4 and 5 apply only to adults aged 18 and over. Minor wardship under the Courts Service framework continues unchanged.

A child who is under wardship at age 18 transitions automatically out of minor wardship; if they continue to require decision-support, an application under Part 5 of the 2015 Act will need to be made to the Circuit Court. For personal injury proceedings, this transition usually coincides with the 20th birthday limitation deadline under the Statute of Limitations 1957 as amended, and the timing requires careful management.

Practitioner note: Where a child plaintiff has a catastrophic injury and is unlikely ever to acquire decision-making capacity, the planning for the post-18 framework should begin well before the 18th birthday, not after.

Read more: See our practical guidance on medical negligence claims for children.

How does the Act affect court approval of personal injury settlements?

For adults lacking capacity, settlement approval is now embedded within a Section 38 application to the Circuit Court rather than within an inherent High Court wardship jurisdiction.

The Circuit Court hearing the s.38 application considers whether the proposed settlement is consistent with the s.8 guiding principles — particularly the requirement to give effect to the relevant person's past and present will and preferences. A decision-making representative who proposes to accept a settlement must demonstrate that the figure has been negotiated in the relevant person's interests and that the structure (lump sum, Periodic Payments Order, or hybrid) reflects the person's known preferences where they exist. Section 44(3) requires fresh court approval for the DMR to exercise any power in relation to the settlement of property or any power vested in the relevant person, which in practice covers settlement of court proceedings. For minors, court approval continues under Order 22 of the Rules of the Superior Courts as before.

Practitioner note: Practitioners settling claims for adult plaintiffs likely to need long-term decision-support should plan for the s.38 procedure from the outset, including choice of decision-making representative and scope of the order sought.

Can I be appointed as my family member's decision-making representative?

Yes, in most cases. The Circuit Court has discretion to appoint any suitable person as a DMR, and a family member who knows the relevant person well and is free of conflicts of interest is the court's preferred choice in the majority of cases.

The court will, however, look closely at the candidate's suitability. Section 39 disqualifies certain persons from being appointed (those who have been convicted of certain offences, those who have been declared bankrupt, owners or staff of designated centres in which the relevant person resides, and others). Where the family is divided, where the relevant person's assets are substantial or complex, or where the proposed DMR lacks the financial expertise required — as in Joan Doe v HSE (2023) — the court may instead appoint an independent DMR from the panel maintained by the DSS. The Circuit Court can also appoint different DMRs for different categories of decision (for example, one for personal welfare and another for property and affairs).

Practitioner note: A family member who is also a beneficiary under the relevant person's will, or who shares a property interest with the relevant person, faces a real risk of being found unsuitable for conflict of interest. Get independent legal advice on suitability before applying.

What happens to my child's compensation when they turn 18 if they lack capacity?

The minor wardship arrangement ends on the 18th birthday. If the now-adult lacks capacity, a Section 38 application must be made to the Circuit Court for the appointment of a decision-making representative who will manage the compensation going forward.

The compensation itself, which has typically been held by the Accountant of the Courts of Justice during minority, does not automatically transfer to the new DMR — the Circuit Court directs the release of funds under the s.38 order, usually with structured arrangements appropriate to the relevant person's needs. Where the compensation includes a Periodic Payments Order, the DMR's authority to receive instalments must be specifically included in the order.

Practitioner note: The transition is not automatic and requires planning. Begin preparation 6–12 months before the 18th birthday: identify the proposed DMR, obtain a current capacity assessment, and prepare the s.38 application papers. A procedural gap on the 18th birthday can leave a vulnerable young adult without an authorised decision-maker for weeks or months.

How long does a Section 38 application take, and what does it cost?

There is no fixed timeline. Straightforward applications with agreed family arrangements and clear medical evidence typically take three to six months from the date of filing in the Circuit Court Office to the date of the order. Contested applications, applications involving substantial or complex assets, and applications where capacity is in dispute can take significantly longer.

Costs vary with complexity. The Section 38 application requires medical reports under s.50, independent legal representation for the relevant person, court fees, and the applicant's own legal costs. Where the relevant person is an existing ward, legal aid is available through the Legal Aid Board for the discharge process under Part 6, irrespective of the ward's means (subject to potential clawback where the ward has substantial assets). For non-ward Section 38 applications, legal aid is available subject to the standard means assessment. The DSS does not charge a fee for registering most decision-support arrangements.

Practitioner note: The earliest settable hearing date in any given Circuit Court venue is the rate-limiting factor in many cases. Application volumes are unevenly distributed across circuits, and Dublin and Cork carry the heaviest lists.

What is the difference between an enduring power of attorney and a decision-making representation order?

An enduring power of attorney (EPA) is appointed by the relevant person while they have capacity, takes effect when they later lose capacity, and is registered with the DSS in two stages. A decision-making representation order is appointed by the Circuit Court after the relevant person has lost capacity and is supervised by the DSS thereafter.

The substantive difference is choice. An EPA is the relevant person's own choice of who will act for them; a DMR order is the court's choice, applying the s.8 principles to the question of who is most suitable in the absence of any prior nomination by the relevant person. For this reason, the Act and practitioners both treat EPAs as the preferred future-planning instrument: a person who anticipates the possibility of losing capacity (because of a progressive condition or a high-risk treatment) should consider an EPA before that loss occurs, rather than leave the matter to a Section 38 application later.

Practitioner note: EPAs created under the Powers of Attorney Act 1996, before commencement of Part 7, continue in force under s.81. New EPAs must be made under the 2015 Act regime.

Can a person still be made a ward of court in Ireland?

No new adult wardship admissions have been possible since 25 April 2023. Minor wardship continues under the Courts Service framework but is automatically reviewed when the minor turns 18.

The transitional provision in s.56(3) of the 2015 Act, as amended by the 2022 Act, preserves the position of a person whose wardship application was lodged but not concluded before commencement; that limited carve-out aside, adult wardship is closed. Existing adult wards are being progressively discharged through s.54 reviews, with the bulk of cases (those falling under s.54(1) or (2)) subject to a hard statutory long-stop of 25 October 2027 under the 2026 amendment. A smaller cohort of cases under s.54(3) is subject to an 18-month extension cap with no fixed outer-date limit.

Practitioner note: Some legacy proceedings still bear "A Ward of Court" in their title. The litigation continues; the underlying jurisdiction is being reframed under the new Act as the discharge order is made.

What is the difference between a co-decision-maker and a decision-making representative?

A co-decision-maker (s.17) makes decisions jointly with a person who retains capacity but needs help; a decision-making representative (s.38) makes decisions on behalf of a person whom the Circuit Court has declared to lack capacity.

The two tiers are intended to be tried in sequence: a court will not appoint a representative under s.38 unless satisfied that lesser supports — including a co-decision-making agreement — would not meet the relevant person's needs. The s.8 principle of least intrusive intervention drives the analysis. In practice, co-decision-making is rare in catastrophic injury cases because the relevant person's capacity to participate in shared decision-making is usually too compromised; representation orders are the norm.

Practitioner note: The DSS Codes of Practice provide concrete worked examples of the two tiers and are the practitioner's first port of call when drafting a Part 5 application.

How does the Act interact with the limitation period for personal injury claims?

The Act does not amend the Statute of Limitations 1957. The 1957 Act continues to suspend the limitation clock while a plaintiff is of "unsound mind" — a phrase that pre-dates the 2015 Act's functional test.

The practical consequence is a definitional overhang: a plaintiff who lacks decision-making capacity for the purposes of instructing a solicitor under the 2015 Act will, in nearly every case, also be of unsound mind for the purposes of s.49 of the 1957 Act, but the two assessments are made by reference to different statutory tests. For permanent incapacity arising from severe acquired brain injury, the practical effect is the same: there is effectively no limitation period running against the plaintiff while the incapacity continues.

Practitioner note: Despite the limitation suspension, prudent practice is to investigate and where appropriate issue proceedings promptly. Evidence deteriorates; expert availability narrows; and interim payment applications cannot be advanced until proceedings are afoot.

Read more: See our overview of personal injury claims in Ireland for general time-limit guidance.

References

1. Assisted Decision-Making (Capacity) Act 2015, Act No. 64 of 2015 — Office of the Attorney General, irishstatutebook.ie
2. Assisted Decision-Making (Capacity) Act 2015 (Revised) — Law Reform Commission consolidation
3. Assisted Decision-Making (Capacity) (Amendment) Act 2022, Act No. 46 of 2022 — irishstatutebook.ie
4. Assisted Decision-Making (Capacity) (Amendment) Act 2026, Act No. 8 of 2026 — irishstatutebook.ie (enacted 31 March 2026; Bill history on oireachtas.ie)
5. In re a Ward of Court (No 2) [1995] IESC 1; [1996] 2 IR 79 — Supreme Court of Ireland, BAILII
6. DSS Summary of Judgments — Assisted Decision-Making (Capacity) Act 2015 (April 2026, V18) — Decision Support Service
7. Decision Support Service — Legislation — current commencement orders and SIs
8. Courts Service of Ireland — Assisted Decision Making (Capacity) Act 2015 — wardship discharge guidance
9. Law Society Gazette — Capacity for Change (April 2026) — practitioner commentary on the 2026 amendment
10. Department of Children, Disability and Equality — Legislative amendments to Part 6 of the 2015 Act
11. Rules of the Superior Courts (Assisted Decision-Making (Capacity) Act 2015) 2023, S.I. No. 261 of 2023