When a person becomes unable to manage their assets because of mental incapacity, an application can be made to the courts for them to become a Ward of Court. This is a process known as Wardship. We look at the issue in this blog.
When does Wardship arise?
An application must be made to the Court before someone can be made a Ward of Court.
On application, the Court will make a decision as to whether the proposed ward is capable of managing their own property. If it is decided that the person cannot manage their own property because of mental incapacity, a Committee is appointed to control the assets on the Ward’s behalf.
The instances in which Wardship can arise are wide and varied. The most common scenarios are loss of capacity due to an illness or progressive age. Wardship can arise either suddenly or gradually in a number of different ways.
Wardship can arise in the event of an unexpected accident. In such cases, the injured party may be coming into a substantial amount of money arising out of the accident and will not be able to manage it themselves. Decisions will need to be made on their behalf as to how this money can be best used to provide for the injured party. They may need full-time care, altered living arrangements, etc.
Wardship can also arise in the case of minors. If a minor is subject to the court system and is awarded a substantial sum of money, decisions may need to be made on their behalf as to what use these funds should be used for e.g. purchasing a house or provision of long term care.
How does the Court decide if someone should be made a Ward of Court?
The court must be satisfied that the person is mentally incapacitated and incapable of managing their affairs and that it is necessary for the protection of his or her person or property that they be taken into Wardship. In deciding the issue of mental incapacity, the court will base this decision on medical evidence available.
Who can apply to make a person a ward of court?
An application to bring a person into Wardship is usually but not always made by a member of his family. The application does not however have to be made by a family member and it can be made by the proposed ward’s solicitor or his doctor or by the hospital authorities if the ward is a patient in a hospital.
What is a committee?
The Committee is the person appointed by the President of the High Court to act on behalf of the ward. The committee can only do what the court authorises them to do. Typically, a committee will be authorised by the court to carry out such functions as collecting a ward’s pension, letting his farm, or selling their house.
The person appointed committee is usually, but not always, the person who made the Wardship application. In some cases, for example, where there is no suitable relative who is prepared to act or where there is disagreement among a ward’s relatives about how their affairs should be managed, the court may appoint the General Solicitor for Minors and Wards of Court to act as committee.
Is there an easier way?
In a situation where the loss of capacity is foreseeable, a common practice is to prepare an Enduring Power of Attorney.
An Enduring Power of Attorney is a legal document that allows an individual to choose to appoint a specific individual (usually a close family member) to look after both their personal and financial affairs in the event that for any reason they lose the mental capacity in the future.
When money has been paid into court how are the ward’s bills paid?
When payments are required for the maintenance and benefit of the ward and his dependants the committee should write to the case officer. In a majority of cases, nursing home maintenance accounts are paid directly by the Office of Wards of Court from the funds in court.
Where the ward is living at home periodical payments can be made on a regular basis to the committee or to the person with whom the ward is residing to meet his living expenses. The level and frequency of payments will, of course, depend upon the ward’s needs and income. From time to time additional payments may be needed for clothing, holidays etc. and again the committee can apply for payment out.
What happens to a ward’s property when he dies?
There is a common perception that on the death of a ward his estate becomes the property of the State. This is not so.
On the death of a ward, after the discharge of his debts and when a grant of probate or Administration has issued, his estate is distributed amongst the persons entitled either in accordance with the terms of the ward’s will or under the rules of intestate succession.
It is necessary for a formal application to be made to conclude the wardship proceedings. Pending this, funds are made available by the court to pay such expenses as funeral expenses, nursing home charges, and probate tax.
Is it forever or can it be temporary?
Provision can be made for a temporary Wardship. In cases where someone is rendered temporarily incapable of decision-making capacity, the ward can cease to operate once the person has regained the capacity to make decisions regarding personal or financial affairs.
What Law governs Wardship?
For over 140 years the Lunacy Regulations Act provided the foundation for Ireland’s approach to issues of capacity. Last year, the Assisted Decision Making Act sought to change this dramatically. The 2015 act, although not yet implemented into force proposed practical change with the vulnerable party and their interests central to the process.
The change proposed to rejuvenate the entire legal area of helping people when they reach a stage in life when they are not as efficient in making decisions.
Under the old system, capacity was seen as a whole or nothing status. You either had it or you did not and all decisions were treated the same. Under the new system, capacity is to be decided on an issue by issue basis and so a person may be deemed to have the capacity to make certain decisions, while still lacking the capacity to make others.
While the new approach is in its infancy in Ireland and may not be fully implemented for a while to come, the move is to be welcomed as a step forward in human rights and preserving the dignity of the individual.
Further Reading About Wills, Trusts & Taxation
Your executor carries out (or executes) the wishes set out in your will and choosing the right person or persons is an important decision.
It should be somebody you trust to do this job. Ideally, it should be a job given to two people to act as co-executors.
The area of law on children is delicate and complex. The most common issues that arise with children are guardianship and custody. However, the scope of children within the law goes far beyond parental rights.
One common aspect is that of entering into a contract with a child.
Succession Rights for Separating Couples
There are important protections in Irish law for partners succession rights If they have been left out, or not properly provided for in the will of their deceased spouse. there are safeguards.
Under the Succession Act 1965, a spouse or partner has certain succession rights. They are entitled to half of the estate if there are no children. Alternatively, they will be entitled to one third if there are children. This right cannot be ignored by a Will unless you agree to waive your rights. This one-half or one-third share of the deceased’s estate is known as the Spouse’s Legal Right Share.