Discharge From Wardship - Next Steps
There are currently over 2,100 adult Wards in Ireland.
Until this year, if someone was unable to make a decision about their legal, financial and personal care matters, the only option was to apply to the Wards of Court office and when someone was made a ward of Court they were deemed to have no capacity whatsoever. A Committee was then appointed on their behalf, often only one person, usually a trusted family member, to make decisions on their behalf.
Under the new Assisted Decision Making (Capacity) Act of 2015, different levels of capacity are now recognised, so that even if someone may not have full capacity to make decisions on their own, different support arrangements are available, depending on their level of capacity.
This new Act came into operation fully on the 26th of April of this year and the Wards of Court Office have now stopped accepting new applications for Wardship and have also commenced a three year review and discharge of all Wards of Court on a statutory basis.
What this means is that all current adult Wards of Court have been or will be contacted personally or through their Committees or family to begin the process of discharge from the Wards of Court Office.
We, at Dermot G. O’Donovan, Solicitors, are currently acting in a number of these applications.
The process begins by lodging a Motion in the Wards of Court Office.
The persons entitled to make the application are:
1. The Ward of Court (the relevant person).
2. The Committee of the Ward of Court.
3. A relative or friend of the Ward of Court in a position of trust or
4. Such other person as the Court consents to making the application where they appear to have sufficient interest or expertise in the Ward’s welfare.
The motion will trigger a visit from a Medical Visitor who will visit the Ward and carry out a functional capacity assessment test.
The Medical Visitor will give recommendations as to the type of support that the Ward will require in relation to making decisions in the future.
If the relevant person (the Ward) doesn’t agree with the assessment of the medical visitor, they area entitled to have their own medical report put before the Court.
A package or booklet of papers must be lodged with the Court to include the capacity assessment, the applicant’s medical evidence if submitted and a proposal as to how the relevant person’s assets will be managed after discharge from Wardship.
Depending on the assets held, certain structures can be put in place to safeguard, invest and protect those assets. We can prepare all of these reports for you, and where an investment portfolio is required, we can do so jointly with a registered Financial Service Adviser.
On hearing the application, the Judge will make an Order on the level of support the relevant person may require in the future, if any.
The role of the committee will end once the ward is discharged from wardship, however the former committee may now be appointed by the former ward as a decision-making assistant or co-decision-maker.
Alternatively the wardship court can appoint a former committee as a decision-making representative.
The funds now held in court under wardship will be paid out from court to the former ward.
If the former ward has been discharged with:
• A co-decision-making agreement - the co-decision-making agreement must be registered with the Decision Support Service which may provide for some or all of these funds to be jointly managed.
• A decision-making representation order – the Court must appoint a decision-making representative, this must be registered with the Decision Support Service and the Court will set out what the Representative must do as regards management and investment of the funds.
If you require any assistance in relation to these applications, please contact us and we have a specialist team ready to help.
About the author: Margaret O'Connell is an Associate Solicitor, a qualified Trust and Estate Practitioner (TEP), a member of STEP International and a member of the decision support panel. Contactable at: moconnell@dgod.ie
