The Wardship system is to be abolished with the announcement by the Minister for Children, Equality, Disability, Integration and Youth that from 26 April 2023 a new system of tiered decision-making supports will begin with the commencement of operation of the Decision Support Service ("DSS") following the enactment of the Assisted Decision-Making (Capacity) (Amendment) Act 2022 ("The 2022 Act").  


Background

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. 

Guiding Principles

The 2015 Act as amended by the 2022 Act implements a long-awaited reform of human rights law by establishing a rights-based system of assisted decision-making. Under the 2015 Act, a person is presumed to have sufficient legal capacity. Where capacity comes into question, it will be assessed based on the "functional test". A person can be considered to have capacity if they can understand, remember, weigh up or consider information to decide and then communicate their decision with or without assistance.  

The 2015 Act also sets out nine guiding principles for interactions with any person who may have difficulty with their decision-making capacities which include:

  1. a presumption that every person has the capacity to make decisions about their life;
  2. in so far as possible supporting people to make their own decisions;
  3. no assumption is to be made that a person lacks capacity because of an unwise decision;
  4. only take action where it is really necessary;
  5. any action which is taken should be the least restrictive of a person's right and freedoms;
  6. give effect to a person's Will and preferences;
  7. consider the views of other people;
  8. to consider the urgency of any action;
  9. use information appropriately.
Decision Support Arrangements

There are several decision support arrangements which will be legally recognised and enforceable following a decision support order which will be made by the Circuit Court. Any such application should be considered as a last resort only and other less restrictive means of obtaining an appropriate means of decision making and management of assets should be exhausted first.  

The various decision support arrangements are :

  • Decision Making Agreement 

This will allow a person to be appointed to assist in obtaining information and help a person to understand and weigh up potential options and to inform any decision made to third parties.

  • Co-decision-making Agreement

Where a person is unable to make a decision on their own, another person can be appointed as a co-decision-maker. This agreement will allow the co-decision-maker the legal authority to make decisions jointly with the person regarding their personal welfare, property or monetary affairs.

  • Decision Making Representative Order

Where a person is unable to make certain decisions, even with support the court may appoint a decision-making representative to make certain decisions taking into account that person's wishes. It is intended that any decision-making representative would be someone whom the person knows or trusts sufficiently to carry out this important function.

  • Advance Healthcare Directive

This arrangement will let a person set out their intentions for future healthcare and medical treatment decisions and appoint a designated healthcare representative to ensure that any advance healthcare directive is followed in so far as possible.

  • Enduring Power of Attorney

The 2015 Act incorporates the possibility of making an Enduring Power of Attorney to enable the person's appointed attorney to act on their behalf, to make certain decisions if a person is deemed to lack sufficient capacity, their attorney shall make those decisions in the future. The 2015 Act creates a new two stage process with new EPA's being registered with the DSS while the person has capacity

 

Decision Support Service ("DSS")

The 2015 Act establishes the service to regulate decision support arrangements, and to supervise the actions of decision supporters once a decision supporter is appointed. The DSS will also maintain panels of decision supporters, attorneys, and healthcare representatives. It will monitor decision supporters and investigate complaints relating to decision supporters and decision support arrangements. It is intended that the DSS will become fully operational on 27 April 2023.  

The 2022 Act made the Irish Human Rights and Equality Commission the national monitoring body for rights under the United Nations Convention the rights of persons with disabilities.  

Conclusions

The long-awaited commencement of the assisted-decision-making regime belatedly ends the current wardship system which arguably was no longer fit for purpose. Clarity around new guiding principles for those interacting with a person who has difficulties with their decision-making capacity, and the establishment of a tiered system of decision support arrangements for such persons is very welcome. It remains to be seen as to what resources will be available to the DSS and the Court Service given that all the 2000+ persons who are currently wards of court will have to transition to the new decision-making support regime over the next three years. The decision-making support regime will still require an application to the court, but it is hoped that the nature and level of inquiry into a person's capacity will be less invasive than under the wardship system. The wardship system removed basic control over a person's assets and the ability to make considered decisions regarding their lives and welfare. The removal of this draconian and paternalistic wardship system was long overdue and is a move away from a "best interests" model and more towards a “will and preferences” model, allowing a reasonable degree of flexibility to enable people to have greater control over their basis decisions. 

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Donal Dunne

Donal Dunne

Legal Director, Dispute Resolution
Dublin, Ireland

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