Notice In Relation to Applications for Wardship

Notice In Relation to Applications for Wardship

In preparation for the commencement of the Assisted Decision Making (Capacity) Act 2015, the President of the High Court has directed that the Office of Wards of Court will re-commence taking applications under Section 15 of the Lunacy Regulation (Ireland) Act 1871 with immediate effect.

The Wards of Court Office has been informed that transitional arrangements for wardship applications in being on commencement of the Assisted Decision Making (Capacity) Act 2015 will be provided for as an upcoming amendment to that Act.

 

Alice White

Registrar of Wards of Court

12 May 2022

Office of Wards of Court Transition to the Decision Support Service

Office of Wards of Court Transition to the Decision Support Service

Introduction

The Wards of Court Office is planning for the commencement of the Assisted Decision Making (Capacity) Act 2015 (the Act). The main provisions of the Act have not yet commenced Act but the expectation is that it will commence in mid-2022.

The Assisted Decision Making (Capacity) Act 2015 will bring about important changes for people who are Wards of Court.

Assisted Decision Making (Capacity) Act 2015

Ireland ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2018.

The CRPD is an international human rights treaty. Its purpose is to ensure the full and equal enjoyment of human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity. The Assisted Decision Making (Capacity) Act 2015 is a key piece of legislation essential to compliance with the CPRD. The Decision Support Service was established on foot of the Act.

What Is The Decision Support Service?

The Decision Support Service (the DSS) is a new service for adults who need support making decisions. This may include people with an intellectual disability, psychiatric illness, acquired brain injury and those with age-related conditions including dementia.

It is expected that the DSS will start registering new decision support arrangements in mid-2022.

All wards of court will be discharged from wardship, following a capacity review, over a three year period. This three year review period will start when the Act  is commenced.

What This Will Mean For Wards Of Court

The Act moves away from a ‘best interests’ principle and replaces substituted decision making for people who need support making decisions. It is a move to a ‘rights-based’ approach, with respect for the will and preference of the person and will maximise autonomy for people who require support to make decisions about their personal welfare, property and financial affairs.

Every person will be assumed to be able to make decisions for themselves unless the opposite is shown.

All wards of court will be discharged from wardship and where appropriate, the relevant person will then transition to one of the new supports available under the 2015 Act:

Decision Making Assistant

The decision making assistant will be chosen by the relevant person (former ward of court) to assist making decisions about personal welfare, finances and property. The decision-making assistant’s role is to help the person make decisions for themselves.

They will gather relevant information and explain it to the person. e.g. contacting a bank, insurance company or utility provider. They can also support the person to let other people know about the decision that has been made.

Co-Decision Maker

A co-decision maker will be appointed under a co-decision making agreement. This agreement records the decisions that the person needs assistance with and legally allows the decisions to be made jointly. The co-decision maker is nominated by the relevant person.  The co-decision-maker’s primary role is to make certain decisions together with the person themselves.

Decision Making Representative

This Decision Supporter will be appointed under an application to the Court.

In the case of a ward of court, by the High Court. In the case of a new application, by the Circuit Court.

If a person is unable to make any decisions on their own the court will appoint the decision making representative. The decision making representative makes decisions on behalf of the person and takes their wishes into account.

If possible the court will appoint someone the person knows and trusts in this role. If there is no one suitable who is able to do the role, the court will appoint a decision-making representative from a panel of experts maintained by the Decision Support Service.

Decision Support Arrangements

Regardless of the level of decision support the relevant person requires, a Decision Support Arrangement will have to be registered with Decision Support Service.

Each decision support arrangement will be registered with the Decision Support Service. The agreement must be in writing and include details of the decisions that the decision-making assistant will assist with.

Capacity Assessments

Current wards of court will transition out of the High Court’s jurisdiction within three years of the commencement of the Act. The Circuit Court will become the sole jurisdiction for applications under the Act.

Every person will have a functional capacity assessment completed. This will be relied upon by the Court to determine the level of support the person requires to make decisions following the discharge from wardship.

A functional capacity assessment involves looking at the person’s ability to make certain decisions at that point in time. It will determine whether the person has:

  • The ability to understand information about the decision they are making
  • The ability to retain the information long enough to make the decision
  • The ability to 'weigh up' the information as part of the decision making process
  • The ability to communicate their decision through any means

What This Will Mean For Committees

Under wardship, the committee is a person appointed by the wardship court to make decisions on behalf of the person with the approval of the court. The role of the committee will end once the relevant person is discharged from wardship.

The committee is one of the people who can make the application to discharge the person from wardship.

The former committee may be appointed by the former ward as a decision-making assistant or co-decision-maker. The wardship court may appoint a former committee as a decision-making representative.

What This Will Mean For Funds In Court

The funds now held in court under wardship will be paid out from court to the former ward. The future management of these funds will depend on the new arrangements (if any) put in place and this will be decided by the wardship court on a case-by-case basis.

  • If the wardship court declares that the ward does not lack capacity, the court will immediately discharge the ward from wardship and order the return of their property. The wardship court may also give further directions about the former ward’s discharge from wardship and circumstances.

If the former ward has been discharged with:

  • A co-decision-making agreement - they will receive their own funds when the co-decision-making agreement is registered with the DSS. The co-decision-making agreement entered into by the former ward and their co-decision-maker may provide for some or all of these funds to be jointly managed. The Court may also give further directions about the former ward’s discharge from wardship and circumstances. 
  • A decision-making representation order- the former ward will receive their funds when the wardship court has appointed a decision-making representative. The decision-making representation order will set out what the decision-making representative is authorised to do.

Current adult wards should consider opening a bank account into which the funds can be lodged if they do not already have one. 

The office is planning for the disinvestment of funds held in Court on behalf of wards of court and is working with the office of the Accountant of the Courts of Justice, Mercer Ireland the Courts Service investment advisors and State Street Global Advisors (SSgA) current fund managers to minimise the risk of the funds invested in Court during the period leading up to the discharge from wardship.

Transition Period

The Wards of Court Office will continue to operate as normal during this transition period. The office will issue communications directly to committees of wards of court to update them on the upcoming changes.

The office and the staff understand this is a period of great change for many wards and committees. If you require more information or have any queries please contact us by email at wardsdischargeapplication@courts.ie or view the information available on the Decision Support Service website.