The old system/wardship
From 1871 to 2023 the legal and financial affairs of people who had difficulties with
their mental capacity was dealt with by the system of “wardship”. Under this system a
person was declared a “Ward of Court” and their legal and financial affairs were
administered by the court. The court appointed a “committee” (generally one person)
to liaise between the person and the court and help manage their day to day affairs.
In the majority of cases, the committee was a member of the family. Where there was
no such person available or there was some other complex reason, the committee
was a civil servant called “The General Solicitor for Minors and Wards of Court”.
The Assisted Decision Making (Capacity) Act 2015 changed everything. It was felt
that the old legislation unfairly deprived people of their autonomy in relation to all of
their affairs. It was considered that people should have the intervention of a court
only as regards particular decisions which they needed assistance with.
The new system came into place in April 2023 and directed that all Wards of Court
must be discharged from wardship within three years. That timeline is very
challenging for everybody and Patrick J. Farrell & Company are involved in acting for
people being discharged from wardship in many cases.
The process involves gathering details of the person concerned, their circumstances
and finances and presenting them to the High Court so that the court can establish
whether they need support under the new legislation with their decisions and to give
directions in this regard. The court will often appoint a “Decision Making
Representative” who will take the place of both the committee and the court in
managing the affairs of the relevant person in the future. If there are trusted family
members available for this role, that is what the court would prefer. If not, the court
may appoint an independent decision maker from a panel maintained by the Decision
Support Service, a government body who will supervise the new system.
The Decision Making Representative will have to report to the Decision Support
Service on a regular basis regarding how they are managing the affairs of the
relevant person.
We fully appreciate that many families throughout the country would prefer not to
make an application for discharge from wardship for their loved one as they feel their
affairs are being managed well on their behalf and don’t want to take on the new
responsibilities. They feel that the assets of the relevant person are being carefully
minded by the court and are nervous about who they will manage to do the same
thing.
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 for them.
The legal fees for discharge applications are paid by the Legal Aid Board so families
need have no concerns about legal costs. Niall Farrell is on the Legal Aid Board
panel for this work in Leinster.
While families may be reluctant to begin the process, ultimately it will be forced upon
them as the Wards of Court Office are under an obligation to complete the discharge
process. It would be better if the family took control of the situation themselves. The
first step is for the committee to contact us when we will explain to you how the
process works and we will direct you to the Legal Aid Board so that you can make an
application for Legal Aid and nominate this firm to deal with matters for you.
