Wards of Court and Incapable Persons
In Ireland when a person is deemed incapable of managing their own assets or affairs because or due to a mental incapability an Application can be made to the Courts for this person to be made a Ward of Court. It is the Courts decision whether to make this person a Ward or 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.
The useful alternative to Wardship is by completing a document called Enduring Power of Attorney. This normally done by the person prior to becoming mentally incapacitated. Where a person makes these alternative arrangements and in those circumstances then it would not be necessary to bring Wardship proceedings. 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mechanism is based on laws contained in the 1871 Lunacy Regulations Ireland Act and by their very nature are now outdated for the times we live in. Using this environment that the Assisted Decision-Making (Capacity) Bill 2013 was published in July of 2013. The purpose of the new Bill is to firstly reform the law and secondly to provide modern laws that support decision making by adults while allowing them to retain the greatest amount of autonomy possible in the 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 to assist them in making decisions or as a co-decision maker who will make decision jointly with them. Second 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. Usually you will provide protection from liability for those informal decision makers and modernises the law relating to enduring Powers of Attorney. Finally, the Bill provides for the establishment or 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.
Generally speaking a Power of Attorney is a legal devise 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 that 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 the 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. To evoke an enduring Power of Attorney can be difficult and would require 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.
Healy O’Connor Solicitors