The principles, in plain terms
- Presume capacity — every adult is presumed able to decide unless the functional test shows otherwise for a specific decision
- Support before substitution — no intervention unless the person can't decide even with all practicable help
- Unwise is not incapable — bad decisions are a right, not a symptom
- Least restriction, shortest duration — the minimum intervention that works, for no longer than needed
- Will and preferences — interveners must respect the person's dignity, privacy and autonomy, and give effect so far as practicable to their past and present will and preferences, beliefs and values
Why "best interests" had to go
The old framework asked what was best for the person — a question that quietly hands the answer to whoever is asking, and historically produced safe, convenient outcomes the person themselves would never have chosen. "Will and preferences" asks a different question: what does, or did, this person actually want? A man who always said he'd die in his own house hasn't changed his mind because minding him got harder. The Act obliges everyone acting for him to treat that preference as the starting point — to be departed from only so far as genuinely necessary, not merely convenient.
What this means for families and appointees
For a decision-making representative, attorney or co-decision-maker, the principles are the job description: find out what the person wants or wanted (ask them — participation is required, not optional), choose the option closest to it that circumstances allow, and record your reasoning, because the DSS and the court judge interveners against exactly this standard. For families in disagreement, the principles are also the tiebreaker the court will apply: not which sibling is loudest, but which proposal best honours the parent's own will and preferences.
How our fees work
You get a fixed quote in writing before any work starts — no hourly-rate surprises. If the scope changes, the quote is revised in writing before we continue. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. How costs work in capacity matters →
Frequently asked questions
Can we ever go against our mother's wishes?
The duty is to give effect to will and preferences 'so far as practicable' — where honouring a preference is genuinely impossible or would cause serious harm, a proportionate departure can be justified. The discipline is in the honesty: impossible, or just harder for everyone else? Document the reasoning either way.
What if we don't know what she would have wanted?
The Act expects effort: ask her now (present will and preferences count even with reduced capacity), consult people who know her, look at how she lived. Genuine unknowns are decided by reference to her beliefs and values — which is also the best argument for having the conversations early.
Do the principles apply to informal carers too?
The statutory duties attach to interveners acting under the Act, but the principles state the standard Irish law now expects of anyone dealing with a person whose capacity is in question — and institutions increasingly measure families against them too.
Talk to a solicitor who works with families through capacity law every week. Call Mary Molloy Solicitors today.
Whether you are planning ahead, facing a capacity application, or simply unsure which arrangement your family needs, an early conversation costs little and prevents a lot.
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