Background
In November 2021, an enduring power of attorney (EPA) was executed under the Powers of Attorney Act 1996, naming two of the applicant’s brothers as attorneys for their mother (the donor). The EPA was registered in January 2024. In April 2024, the applicant lodged a formal complaint with the Director of the Decision Support Service (DSS) — the statutory body that supervises decision supporters under the Assisted Decision-Making (Capacity) Act 2015 — alleging that his brothers had committed breaches of fiduciary duty. After investigation, the DSS issued a preliminary view in September 2024 that the complaint was not well-founded, and confirmed that finding as its final decision on 29 October 2024. The applicant appealed to the Circuit Court, which dismissed the appeal in July 2025 on the ground that the matter was moot because the donor had died (apparently in August 2024) and no effective remedy remained.
The applicant then sought leave to apply for judicial review in the High Court in October 2025. Critically, he challenged the original DSS decision rather than the Circuit Court’s ruling. He argued that the DSS had applied the wrong Code of Practice (a 2022 code rather than the 2023 code displayed on its website), that the decision was irrational, that the DSS fettered its discretion, and that the question of the correct interpretation of s.76 of the 2015 Act was of sufficient systemic importance to warrant the court’s intervention notwithstanding the mootness of his individual complaint.
The applicant also contended that s.76(6) of the 2015 Act operates retrospectively, such that a court determination could have voided the brothers’ past acts as attorneys — a construction he said the DSS and Circuit Court had wrongly rejected. He maintained that correcting what he characterised as a systematic interpretive error gave the proceedings clear utility even absent a live remedy.
The Court’s Holding
Gearty J. refused leave on two independent grounds. First, the applicant had challenged the wrong decision: once he appealed the DSS decision to the Circuit Court, that court’s ruling superseded the original DSS decision, leaving only the Circuit Court judgment open to judicial review. The applicant offered no basis for impugning the Circuit Court’s conclusion and could not simply bypass it by re-targeting the administrative decision below.
Second, and in any event, the entire matter was moot. The sole remedy available under s.76(6) of the 2015 Act is a prospective order that an attorney “shall no longer act as such” — the statutory phrase “no longer” plainly addresses future conduct. The common law presumption against retrospectivity reinforced that reading, as did first principles of legal certainty. Because the donor had died, the attorneys’ mandate had ended, rendering any remittal to the DSS or removal order entirely pointless. The Circuit Court Judge had therefore been correct to dismiss the appeal on that basis.
On the question of whether the court should nonetheless exercise its discretion to hear a moot point, Gearty J. applied the principles in Lofinmakin v. Minister for Justice [2013] IESC 49 and held that no issue of exceptional public importance arose. Whether the DSS used the correct Code of Practice, or applied s.76 correctly, were matters best resolved in future litigation arising from a live dispute rather than by abstract pronouncement. Leave was refused.
Key Takeaways
- Once an applicant appeals an administrative decision to the Circuit Court, that court’s ruling supersedes the original decision; judicial review must target the Circuit Court judgment, not the underlying administrative act.
- The remedies under s.76(6) of the Assisted Decision-Making (Capacity) Act 2015 are strictly prospective — a court may order that an attorney “shall no longer act,” but cannot retrospectively void past acts or unwind a concluded EPA.
- Death of an EPA donor extinguishes the attorneys’ authority and renders any complaint-based remedy under s.76 unavailable; proceedings founded solely on such a remedy will be dismissed as moot.
- An alleged issue of systemic or public importance does not, without more, satisfy the “exceptional circumstances” threshold required to justify hearing a moot case; courts should await a concrete live dispute before resolving novel points of law.
Why It Matters
This judgment clarifies the temporal limits of the DSS’s supervisory jurisdiction over EPA attorneys: once the donor dies, the statutory complaints mechanism under the 2015 Act offers no retrospective redress for alleged misconduct during the attorney’s tenure. Practitioners advising family members who have concerns about an attorney’s conduct should appreciate that delay — whether caused by protracted investigations, internal reviews, or appeals — may render any remedy unavailable if the donor’s death intervenes before a court order is secured.
The decision also reinforces settled Irish mootness doctrine in the administrative law context. It confirms that the perceived systemic significance of a legal question is insufficient, standing alone, to justify expending court resources on a dispute that no longer has a live remedy. Points about the correct Code of Practice or the proper construction of statutory powers will need to be litigated in a case where they can actually determine an outcome.