Significant changes lie ahead for Wards of Court when the Assisted Decision Making (Capacity) Act 2015 is implemented in full

Current wardship system:

The current wardship process provides for the “Ward” to come under the protection of the High Court if they are deemed, by way of medical evidence, to be of ‘unsound mind and incapable of managing their affairs.’  A wardship “Committee”, usually a family member, is appointed pursuant to a High Court Order to manage the Ward’s affairs. A Committee is accountable to the Wards of Court office for all monies received and payments paid out on a Ward’s behalf.  The current wardship system which is based on legislation dating from 1871 is outdated and the new statutory provisions (see below) seek to increase the rights of persons with capacity issues (including current Wards of Court) taking a more nuanced approach to the complex issue of mental capacity.

Areas of reform:

The Assisted Decision Making (Capacity) Act 2015 (the “ADMCA”) and the Assisted Decision Making (Capacity) Amendment Act 2022 (“ADMCAA”) is due to be commenced in full on the 26^th April 2023.   The spirit of the Principal Act seeks to ensure that there is minimum restriction on the rights and freedoms of those persons with capacity issues.  The 2015 Act changes the test on capacity to a functional flexible test.  That means capacity will be assessed on the person’s abilities and only in relation to a matter(s) in question and only at the time in question (when capacity is being assessed). Under the 2015 Act, if a person is found to lack decision-making capacity in one matter, this will not necessarily mean that he/she also lacks capacity in another matter.

The ADMCA sets out guiding principles to be followed in decision-making including taking into account the will and preferences of the person who has a capacity issue.   It creates a number of decision support arrangements tailored to the capacity needs of the person whose capacity may be at issue or may soon become an issue.   It provides for court-appointed Decision-Making Representatives (DMR’s) – one of the new possible alternatives to the Committee for the Ward.

What happens to current Wards of Court who are aged 18 and over after the 26^th April 2023:

There are currently over 2,000 Wards of Court.  All Wards of Court who are in the age category of 18+ years, will be reviewed by the Wards of Court office in accordance with the new system under the 2015 Act.   The ADMCA allows for a 3-year transition period from the time it is commenced in full, for all adult Wards to be discharged from wardship.

The discharge from wardship process requires a High Court application to be made.  There may be an entitlement to legal aid in respect of this type of application.   Prior to the High Court application being made, a number of steps need to be taken including a ‘medical visitor’ being appointed to assess the appropriate three tier of decision support as set out in the ADMCA needed by the Ward (or otherwise) once discharged from wardship based on the functional capacity test.   A Ward who continues to have capacity needs will be discharged from wardship and offered support most appropriate to his or her needs under the ADMCA. The decision support arrangement options are a DMR (where capacity is at issue), a Co-Decision Maker (middle level of assistance) or a Decision-Making Assistant (lowest level of assistance that can be provided to the Ward).  If the Ward is deemed by the medical visitor to have capacity, no decision support arrangement is required and the Ward is discharged from wardship.

Funds held in the Ward’s name by the Courts Service will be paid directly to the Ward (who will be known as the ‘Relevant Person’ (RP) under the 2015 Act) once he/she has been discharged from wardship and in accordance with the directions of the High Court.    The role of the Committee will cease when the Ward is discharged from wardship.

Statutory duties and responsibilities:

In cases where the Ward continues to have capacity issues, the former Committee for the Ward (or whoever agrees to assist the RP under the ADMCA) needs to be aware of their statutory obligations as set out under the ADMCA.  In the case of a DMR, duties include, keeping proper accounts and financial records and submitting an annual report to the DSS.

Discharge from Wardship – funds of the Ward:

Where a Ward has significant funds (some extending to 7 and 8 figure awards e.g., from catastrophic personal injuries claims), a financial proposal will be required by the High Court (as part of the discharge from wardship application) on how the funds will be managed, who will they be managed by etc. once the Ward is discharged from wardship.  Under the provisions of the ADMCA, the Ward’s fund will no longer be managed by the Courts Service and it will be up to, for example, the DMR to decide how the funds are to be managed as the funds will be released from the Courts Service direct to the former Ward/RP or their representative.

Under the ADMCA, the RP’s fund, will now be manged by the DMR for example.   In some cases, the assistance of a financial advisor maybe required.  This is something Wards and/or Committees for the Wards did not have to consider until now.  Proper financial advice on this issue is crucial in cases where a financial proposal is required. The choice of investment strategy, in applicable cases, of the Ward’s funds, will be complex and carries risk.   When calculating the likely return on the investment of his/her fund, the former Ward/RP will be more risk averse than the ordinary, prudent investor.

Where appropriate, having regard to the size of the fund, careful consideration will need to be given to the choice of fund managers/investment advisors who can give advice on the appropriate choice of fund taking into account that the fund must last, in so far as that is possible, for the duration of the former Ward/RP’s life expectancy (e.g. cost of care over a lifetime can be covered with as much certainty as possible).

In this context, it is imperative to ensure, if a financial advisor is being retained for this purpose, that they have professional indemnity insurance.  It is also important to check that if a financial service provider is chosen, it is regulated by the Central Bank.

Costs:

Costs of the application to discharge a Ward from wardship will include costs of the medical report on the capacity issue and a financial report (if applicable depending on the size of the Ward’s fund).  If the person making the discharge from wardship application does not meet the criteria for legal aid, these costs will come out of the Ward’s own funds.

There will also be DSS costs including costs associated with registering the discharge order with the DSS.   After the discharge from wardship application, in some cases, there will also be ongoing costs including for example the cost of retaining a financial advisor to manage the fund and other annual maintenance costs associated with the choice of investment strategy for the fund.   The likely annual maintenance fund/financial advisor costs etc, should be ascertained from the providers prior to their engagement, as they will be coming out of the Ward’s fund, and they are costs Wards or their Committees did not need to concern themselves about until now.

Legal Aid:

Legal aid will apply in respect of these applications. However, the criteria in respect of qualifying for legal aid has yet to be clarified.  Once the ADMCA/ADMCAA, is commenced in full, all relevant information regarding the procedures, qualifying criteria, application forms etc. should be available from the website www.legalaidboard.ie

Concerns:

For the most part, the reforms intended by the Legislature with this Act are to be welcomed.  However, there are some concerns, for example, regarding the cost consequences of those reforms on vulnerable people.  The ADMCA stipulates where an order is sought limiting a RP’s autonomy, where capacity is at issue, it can only be made where it is urgent or that it is otherwise expedient for it to do so; the Act also states that the Court in making an Order, shall, in so far as the Order relates to the conferral of powers, ensure that the powers conferred are as limited in scope and duration as is necessary having regard to the interests of the RP the subject of the order.

Therefore, depending on the capacity issue, some Orders could be limited to specific decisions regarding a matter in question at a time in question and the DMR, in that scenario, could be looking at more than one court application re different decisions at different times in the life of the RP.   For those who will not be covered by legal aid, there will be associated cost implications with this approach and it will also likely have an impact on court resources.

Contact us at Cantillons Solicitors at Cork  +353 (0)21 4275673 or Dublin +353 (0)1 264 1802 or email info@cantillons.com  if you would like more information.

* In contentious business, a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. Many Personal Injury Solicitors portray themselves as “no win no fee Solicitors Cork” or “no win no fee Solicitors Dublin”. This term can be misleading and it is essential that you discuss fees with the Medical Negligence Solicitor you ultimately choose. At Cantillons Solicitors, we are entirely transparent

Marion Fogarty

Associate

Experience

Marian practises in clinical negligence cases with a particular focus on delayed diagnosis of cancer claims, fatal injury, plastic surgery, general surgery, obstetric injury, catastrophic injury and ENT claims, to name a few.  Her experience in these areas of law ranges from mid value cases to complex and high value claims.  She provides advice to clients in relation to issues arising under the Data Protection Acts/GDPR, limitation issues and has experience of litigating before the High Court, Court of Civil Appeal and Supreme Court.    She is a CEDR accredited mediator and represents clients in the mediation of clinical negligence claims.

Qualifications/Associations

• Bachelor of Business Studies and French, University of Limerick
• Admitted to the Roll of Solicitors (2009)
• Advocacy and Employment Law Skills Certificate, Law Society of Ireland
• CEDR Certificate in Advanced Negotiation Skills
• CEDR Accredited Mediator
• Diploma in Professional Regulation, NUI
• Certificate in Data Protection Practice, Law Society of Ireland

Memberships

Law Society of Ireland, AVMA, Southern Law Association, DSBA and CEDR Exchange