The Assisted Decision-Making (Capacity) Act of 2015 changes the law significantly as regards people who are Wards of Court and presents challenges for the families of Wards of Court. For example, it may be necessary for the family to make an application to the Circuit Court requesting that the Court appoints a decision-making representative to make certain decisions on behalf of the Ward in future.
The origin of the legislation is in European Human Rights Law. It was felt that the Wardship Legislation (from 1871) was a very blunt Instrument in that it deprived people who were Wards of Court of the ability to make any decisions regarding their life. The legislation was paternalistic in nature and was considered to deprive people of their freedoms.
The replacement legislation tries to provide a more graduated system whereby those lacking capacity will receive assistance to make individual decisions in their life and the Court will be asked to intervene to make decisions only where absolutely necessary and in relation to particular issues.
It has taken quite a long time for the structures to be put in place to support the legislation but it is intended that the new regime will begin in 2023.
The effect of this is that during a three-year period after the commencement of the new regime, Wardship will be terminated for all Wards of Court (of whom there are approximately two and a half thousand). The Court will determine whether any further involvement of the Courts will be necessary in respect of the Ward or their assets.
All of this presents a very great challenge for the families of Wards of Court.
Very often one or more of the family members will form “The Committee” whose job it is to liaise between the Ward of Court and the Court itself to ensure that their affairs are looked after. They will be very concerned to ensure that after the discharge of the Wardship of their family member, sufficient measures are put in place to look after the Ward and their assets. Of particular concern will be where a Ward has a considerable amount of money to their credit with the Court. In the absence of any other provision, this money would simply be returned to the Ward and in many cases, this may create problems for the Ward. For example, the Ward might be vulnerable to people pressuring them to give away their money.
The legislation provides for the possibility of a “Co-Decision-Making Agreement” where the Ward will agree that certain decisions will only be taken in conjunction with someone else (for example a family member or former Committee) and this Agreement would be registered with the decision support service and its implementation supervised by them.
In circumstances where the Ward doesn’t have the capacity to enter into such an agreement, it may be necessary for the family to make an application to the Circuit Court requesting that the Court makes a decision regarding a particular matter or appoints a decision-making representative (who can be a family member) to make certain decisions on behalf of the family member.
Niall Farrell of Patrick J Farrell and Company LLP has acted for the Committee in many complex wardship cases and can offer advice on these issues and representation in the Court after the commencement of the Act.