The future of Wards of Court
In Ireland, when a person is deemed incapable of managing their own assets or affairs because of mental incapabilit,y an Application can be made to the Courts for this person to be made what is commonly referred to as a “Ward of Court”. It is the Court’s decision whether to make this person a Ward of Court or not. If the person is made a Ward of Court then a Committee is appointed to control any assets belonging to the Ward.
One useful alternative to the Wardship process is the completion of a document called an Enduring Power of Attorney. This is normally done by the person preceding their becoming mentally incapacitated. When a person makes these alternative arrangements it is not then necessary to bring Wardship proceedings.
Assisted Decision-making (Capacity) Bill 2013
The difficulty with the Wards of Court system is that the existing mechanism is based on laws contained in the 1871 Lunacy Regulations Ireland Act and by their very nature are now outdated for the times we live in. In these unsatisfactory circumstances the Assisted Decision-Making (Capacity) Bill 2013 was published in July of 2013. The purpose of this new Bill is to firstly reform our outdated laws and secondly to provide modern laws that support decision making by adults while allowing them to retain the greatest amount of autonomy possible in circumstances where they lack or may soon lack capacity.
When the Bill becomes law, it will see the provision of what will be known as a “Trusted person” to act as their decision making assistant assisting them in making decisions or as a co-decision maker who will make decisions jointly with them. The Bill will provide for the making of applications to Court for a declaration as to whether those persons lack capacity and for the making of Orders approving the co-decision making agreement or appointing decision making representatives.
Additionally, there will be protection from liability for those informal decision makers and it modernises the law relating to enduring Powers of Attorney. Finally, the Bill provides for the establishment of a new statutory office the Office of the Public Guardian which will supervise the decision making assistants co-decision makers, decision making representatives and persons holding enduring Powers of Attorney.
Power of Attorney in Ireland
Generally speaking a Power of Attorney is a legal device that can be set up by a person during his or her life when he/she is in good mental health. We often use Power of Attorney’s for a specific purpose say for buying your house where you may be out of the country and it facilitates the transaction. The Power of Attorney is narrowed for that specific purpose.
However, an Enduring Power of Attorney allows the attorney to make “personal care decisions” on the person’s behalf when they are no longer mentally capable of making decisions for themselves. Because of the powers that are granted under this Power of Attorney there are a number of legal safeguards to protect from abuse. Clearly the procedure for executing the Enduring Power of Attorney is complex and one part of which would require a statement from your doctor saying that you had full mental capacity when executing the Power of Attorney. Revoking an enduring Power of Attorney can be difficult and requires court approval.
For this reason the Office of the Public Guardian will have oversight of these Enduring Powers of Attorney and will make for a much clearer and fairer system.
Alongside setting up a Power of Attorney in Dublin, a solicitor may represent a client in, e.g. injury compensation legal procedure.