Decision Making, Mental Capacity and Wardship

The legal system in Ireland that deals with people who have difficulties with their decision making ability has changed significantly.  The below article summarises the old system.  See other articles on our website and our social media content for more recent updates.

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Under legislation from the 1870s, the High Court plays a very important function in looking after the affairs of those who through illness, dementia or some other disability are unable to look after their own affairs. Unless they have made provision before they became unwell by putting in place an enduring power of attorney (appointing somebody else to deal with their affairs), their legal and financial affairs cannot be dealt with. They are not capable of entering into legal transactions or signing documents.

In these circumstances, an application can be made to the High Court to have somebody made a Ward of Court. The effect of this is that the court takes over responsibility for their affairs which will be managed through the Wards of Court office, which is part of the High Court. They are then referred to as “a Ward”.

The court will appoint a “committee “, generally one person, who is the person who will liaise between the Ward and the Wards of Court’s office and will deal with their day-to-day affairs under the supervision of the Wards of Court office. They will be authorised by the Wards of Court office to sign legal documents and carry out legal transactions on behalf of the Ward. The committee is generally a member of the family. In contentious cases or in cases where no family member is available, the High Court will often appoint the General Solicitor for Minors and Wards of Court to carry out this role in these circumstances. She is a solicitor who works for the state to provide independent representation and is not part of the Wards of Court office.

Application

An application to have someone made a Ward of Court is generally made when they are unable to look after their own affairs and there is some legal or financial logjam that can only be solved by making the person a Ward. The application can be made by any person and must be supported by certificates from two doctors to say that they feel that the person is unable to look after their affairs.

The court will then send out a “medical visitor”, a third doctor to satisfy itself that the person should be made a Ward. The person will be given the opportunity (if they are able) to make an objection and can have their objection decided upon by a jury if they wish.

If the Court proceeds to make someone a Ward, the Ward of Courts office will gather details of all of the assets of the Ward so that the judge can give directions as to the management of the Wards affairs. The committee will carry out these directions and is entitled to instruct a solicitor to help them with this if necessary and these costs will generally be paid by the Wards of Court office from the assets of the Ward.

A committee may be appointed as the “committee of the estate” and/or the “committee of the person”. The “committee of the estate” is responsible for dealing with the Wards assets whereas the “committee of the person” is responsible for dealing with their personal care. Generally the committee will fulfil both functions but occasionally they are separated.

The committee must report at regular intervals to the Wards of Court office regarding the affairs of the Ward and in the event that any significant transaction is intended, the judge will be required to give his approval. Approval will also be required for any travel abroad or medical treatment.

A small levy is charged by the Wards of Court office which is paid from the assets of the Ward.

An application can be made to the court at any time by the Ward to have the Wardship “discharged” on the basis that they have recovered.

While new legislation in 2015 was intended to do away with the Wardship system, it hasn’t yet been implemented and there will be significant work required before this can happen. The intention of that legislation is to involve the court in helping people only in relation to particular decisions they need to make rather than have the court take over the management of their affairs entirely.

Patrick J Farrell has considerable experience acting in applications for Wardship, acting for committees and acting as committees ourselves and also enacting for the General Solicitor where she is the committee. If you have any queries in this area, please contact niall.farrell@pjf.ie.

More Wardship Resources

 The End of Wardship – Help for Committees

What is wardship?
Wardship is a legal status granted by the courts in Ireland to protect minors who are unable to be cared for by their parents or guardians. It ensures that the child’s welfare is prioritised and that appropriate arrangements are made for their upbringing and protection.

When is a child placed under wardship?
A child may be placed under wardship if the court determines that the parents are unable or unfit to care for them. This can occur due to various reasons, including neglect, abuse, mental health issues, or other circumstances that compromise the child’s safety and well-being.

What are the responsibilities of a ward?
A ward of the court has specific rights and protections. The primary responsibility is to ensure the child’s best interests are met, which includes providing a safe and stable environment, access to education and healthcare, and emotional support. The court-appointed guardian or social services oversee these responsibilities.

How is a guardian appointed for a ward?
The court appoints a guardian based on the child’s best interests. This can be a family member, a close family friend, or a professional guardian appointed by the court. The guardian is responsible for making decisions regarding the child’s welfare, education, and healthcare.

Can wardship be terminated?
Yes, wardship can be terminated if circumstances change and it is deemed that the child can safely return to their parents or another suitable guardian. The court will review the case periodically to determine if the termination of wardship is in the child’s best interests.

What legal support is available for wards and their guardians?
Wards and their guardians can seek legal support to navigate the wardship process, ensure their rights are protected, and advocate for the child’s best interests. Legal professionals can assist with court applications, guardianship appointments, and any disputes that may arise.

How does wardship affect a child’s rights?
Wardship ensures that the child’s rights to safety, education, healthcare, and a stable environment are upheld. While under wardship, the child is protected by the court, and decisions regarding their welfare are made in their best interests, often with input from legal and social service professionals.

What is the difference between wardship and guardianship?
Wardship is a legal status assigned to a child who cannot be cared for by their parents, while guardianship refers to the responsibility given to an individual to care for and make decisions on behalf of the ward. Guardianship is the role undertaken by the appointed guardian to ensure the child’s welfare.

What happens to a child’s inheritance under wardship?
Under wardship, a child’s inheritance is managed by the court-appointed guardian or a solicitor to ensure that the funds are used appropriately for the child’s benefit. This includes covering living expenses, education, and other necessary costs until the child reaches the age of majority or as otherwise directed by the court.