Discharge from Wardship Ireland
Wardship was a legal process where a person is declared unable to manage their own affairs due to mental incapacity. Once made a ward of court, decisions about the person’s legal, financial and personal care were taken over by the courts. A committee (often a single, trusted person) would be then appointed to help make decisions on their behalf.
However, the introduction of the Assisted Decision-Making Capacity Act 2015 brought about major changes for Wards of Court, with different levels of capacity now recognised. A person can no longer be made a Ward of Court in Ireland; and the process of reviewing and discharging all existing Wards of Court from wardship is now underway.
If you or a loved one is currently under wardship, understanding how the deadline for discharge and how the process works is crucial. This guide outlines what wardship is and why it’s being phased out; how the new discharge system works; and what supports may be put in place after discharge.
What was Wardship?
The purpose of wardship was to protect an individual and their legal, financial and personal interests when they lack the decision-making capacity to do so themselves. Instead, decision-making power is turned over to the courts and managed by a court-appointed committee who act on a person’s behalf.
As of 25 April 2023, the Ward of Courts office stopped accepting wardship applications. Instead, a new Decision Support Service came into being and the Ward of Courts office commenced a three year statutory review and the discharge of all adult wards of court.
Why Is Wardship Being Phased Out?
When the Assisted Decision-Making (Capacity) Act 2015 came into full effect in April 2023, it introduced a completely new approach to how legal decisions are made for people with limited or impaired capacities.
Under the Act, wardship is being phased out, at which point all existing wards must be discharged from the system. The Office of the Wards of Court remains responsible for all ongoing wardship matters during the transition.
In its place, the a new system of assisted decision making was established to support those with difficulties in exercising their own decision-making. Instead of removing decision-making power, this service helps people make their own choices about their personal welfare, property and affairs. While also respecting the dignity and rights of persons with disabilities. Assisted decision makers can be those assist with decisions (assisted decision makers or co-decision makers) or Decision Making Representatives who actually make the decisions.
Process For Discharging a Ward
To be discharged, an application must be made to the High Court seeking a declaration assessing that person’s capacity. The Ward themselves, the Ward’s committee, or the Court have all ensured that an application has been made in each case.
This process gives all wards an opportunity to be heard by the wardship court when their cases are being reviewed, as well as access to appropriate representation and legal aid.
Following review, if the court decides that the ward lacks capacity to make certain decisions, a Decision Making Representative will generally be appointed who will be a trusted friend or family member or an independent Decision Making Representative for the Decision Support Service Panel.
What Happens After Discharge From Wardship
When someone is discharged from wardship, their legal status as a ward ends. Their committee is dissolved and legal control is returned to them, or transferred to a new support arrangement.
There are five main decision support arrangements for people who have difficulties with their decision-capacities and who may need support. Each support arrangement is based around the different levels of support a person requires to help make decisions.
For those who currently face challenges, or may shortly face challenges, one of the following arrangements may be established depending on their needs:
- A Decision-Making Assistant (for mild support)
- A Co-Decision Maker (for shared decisions)
- A Decision-Making Representative (if they cannot decide independently)
What is a Decision Making Assistant
If a person has trouble making certain decisions by themselves or without help, they can appoint a trusted person to act as a Decision-Making Assistant. The individual remains the primary decision-maker but the assistant can help to make or communicate certain decisions.
What is a Co-Decision Maker
If a person cannot make certain decisions on their own, they can appoint a Co-Decision Maker to help them make or reach decisions. The specified decisions must be reached jointly. Usually, a Co-Decision Maker is a trusted person such as a friend or family member.
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What is a Decision-Making Representative
For those who are unable to make certain decisions, even with the support of a decision-making assistant or co-decision maker, the court may appoint a decision-making representative. The appointee can make decisions on behalf of the incapacitated individual while taking their wishes into account.
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What Role Do Solicitors Play in the Discharge Process?
It is important that you engage the services of a solicitor for the wardship discharge process. A solicitor can help you understand your rights and will lodge the legal documents needed to start the Discharge from Wardship process.
Once the process begins, your solicitor will guide you through the entire discharge process. They will compile and submit all required legal and medical documentation and represent the Ward and their Committee at the discharge hearing. The discharge process can be complex and emotional so having legal support can help to ensure the person’s voice is heard and their rights protected.
At Patrick J Farrell & Co Solicitors, we regularly assist families in applying for discharge from wardship and transitioning to new arrangements under the Assisted Decision-Making Act.
Niall Farrell has worked as a solicitor for the General Solicitor for Minors and Wards of Court for many years, managing the affairs of many Wards of Court and he is, therefore, very experienced in the management of the affairs of people with capacity problems. He can advise families in relation to the process of discharge from wardship and help them navigate this difficult time.
Discharge from Wardship Ireland
Frequently Asked Questions
What is The Assisted Decision-Making (Capacity) Act?
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The Assisted Decision-Making (Capacity) Act was signed into law in December 2015. The Act asserts that all adults have the right to play an active role in decisions that affect them, including decisions about their personal welfare, property and affairs. Its introduction dramatically altered the law in relation to people who have an intellectual disability or illness that makes it difficult for them to make decisions themselves.
What happens to Wards of Court?
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Under the Assisted Decision-Making (Capacity) Act, people are no longer able to be made a Ward of Court. From 26 April 2023, any existing Ward of Court should be reviewed by the wardship court and discharged from wardship. It is up to the courts to decide whether or not a current Ward of Court needs formal support under the new Act.
Is wardship still used for new cases?
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As of April 2023 new wardship applications are no longer accepted. The current system of wardship has been replaced by a new decision support framework, and all new and future cases must use the new Assisted Decision-Making system.
Can someone be discharged and still need support?
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When someone is discharged from wardship, their legal status as a ward ends. However, discharge may not mean full independence. Those who face challenges may be transferred to a new support arrangement under the Decision Support Service.
What is a decision-making representative?
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A decision-making representative helps to make certain decisions on behalf of a person who is unable to make those decisions for themselves. They are appointed by the court under a decision-making representation order.
What is a decision making assistant?
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A Decision-Making Assistant can provide a support role to those who have trouble making certain decisions by themselves or without help. Depending on the support arrangement, they may help to make or communicate certain decisions.
What is a Co-decision maker?
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If a person is unable to make certain decisions on their own, they can appoint a trusted person to act as their co-decision-maker. The role of the co-decision-maker is to make certain decisions jointly with the persson.
Who decides whether a person has capacity?
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The wardship court is responsible for determining the ward’s capacity to make certain decisions which is based on a doctor’s report. Where appropriate, the wardship court may decide that a former receive support through one of the new support arrangements.
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