The new Assisted Decision-Making Capacity regime will replace the operation of the wardship system for those people with diminished capacity issues. The wardship system was based on the Marriage of Lunatics Act 1811 and the Lunacy Regulation (Ireland) Act 1871 ("the 1871 Act"). The wardship system resulted in a "one size fits all" approach. Any level of diminished capacity, no matter how minimal that might be, resulted in a person being placed into wardship. The result of this was that their affairs were managed by a committee (generally one person) and their assets were liquidated with monies being lodged into court and managed in a conservative way until such time as the ward exited wardship or passed away.
The Assisted Decision-Making (Capacity) Act 2015 ("the 2015 Act") was enacted to comply with the United Nations Convention on the Rights of Persons with Disabilities. The 2022 Act amended the 2015 Act, which had been enacted but had not come into force.
As a demonstration of the inflexibility of the wardship system to date, I include below two relevant examples below.
In re Francis Dolan a Respondent [IEHC 2008 264]
Francis R. Dolan was born with cerebral palsy and suffers spastic quadriplegia and requires full time care. He received an award of damages for injuries suffered at birth and the settlement monies were placed on deposit with the Accountant of the High Court pending an application to make him a ward of court. The Dolan family had principled objections to wardship which they found to be offensive, having regard to the fact that to be placed into wardship would require an assessment of his mental capacity to determine if he was a "lunatic", and therefore suitable to be placed into wardship, as well as being an unnecessary instruction into family life.
The original Order of the President of the High Court in 2007 directed that the issue of "whether or not the respondent, Francis Dolan, is of unsound mind and incapable of managing his person and property" be determined. The Dolan family resisted the warship application and sought injunctive relief to restrain this process as they objected to the President's jurisdiction under the 1871 Act. The matter was determined against the Dolan family in the High Court and an appeal to the Supreme Court resulted in a direction for the hearing of a preliminary issue as to what options were available to the court to protect the respondent's monies.
At the hearing of this preliminary issue in the High Court it was strongly argued that a trust with Francis R. Dolan as beneficiary would be an appropriate alternative to wardship. Mr. Justice Sheehan held that the court did not have the jurisdiction to create a trust scheme in lieu of wardship, and this decision was again appealed to the Supreme Court with the substantive case also returning to that court for determination. In the interim, and by agreement with the President of the High Court, the respondent's monies were invested separately from the General Wardship Fund (which was managed conservatively) by the Accountant of the Courts of Justice and managed with input from the Dolan family. The Supreme Court confirmed the High Court's decision, that the court did not have any inherent jurisdiction to create an alternative means of managing and protecting assets of those with limited capacity.
Ultimately, Francis R. Dolan was not made a ward of court, but his monetary assets remain in court. Addleshaw Goddard has acted for Francis R. Dolan and his family from 2008 to date throughout the series of applications and appeals and continues to advise in relation to any appropriate decision-support arrangements for Francis.
See also In the Matter of M.H, A Ward of Court [IEHC 2011 129]
The Committee of the Ward sought leave for a bespoke investment strategy for the funds of the ward outside of the control of the Wards of Court Office. The basis of the application was that the Committee believed that a higher rate of return could be achieved, that would avoid depleting the ward's capital which was being used to maintain the ward. Kearns P held that the guiding principle in relation to ward's monetary assets was capital maintenance. To place the wards assets outside of the protection and custody of Court would defeat the purpose of wardship which was "to protect persons of unsound mind and custody and protection of his/her assets for the benefit of that individual". Once a person had been taken into wardship, a Rubicon had been crossed and tried to work with bespoke arrangements which were unworkable and would potentially leave the Wards of Court Office with responsibility, but no power should be a full loss or dramatic reduction in the value of the investment. The court preferred the collegiality of the existing investment strategy of the Accountant of the Superior Courts and refused the application.