Ward of Courts Legislation
The Wards of Court legislation, which is being phased out, some elements of which still continue. is hopelessly outdated. The principal legislation is the Lunacy Regulation (Ireland) Act 1871 with very minimal modifications. There has been a comprehensive revision of the law in relation to wardship and the custody and care of the assets and persons, formerly labelled of “unsound mind”.
The High Court and Circuit Court have powers to appoint a representative to manage the estate, i.e, assets, or care for a person of unsound mind. The appointed person is known as a committee. Generally, wardship applications are made in respect of
- persons who are elderly and disabled by old age,
- persons who have suffered severe brain damage typically following a catastrophic accident.
- persons of intellectual disability.
- persons with classified and recognised mental illnesses.
The jurisdiction or power over Wards of Court is exercisable by the Presidents of the High Court and the Circuit Court. The President of the High Court is the successor to the Lord Chancellor of Ireland. Under the U.K. pre-independence system of law, an officer of very ancient origin, the Lord Chancellor had the custody and management of the lands and persons of unsound mind.
The Lunacy Regulation (Ireland) Act regulated this ancient power. After independence, the powers were passed (ultimately) to the President of the High Court.
The Lord Chancellor’s powers were derived from the inherent prerogatives of the Crown as father or mother of the nation, which had been delegated for many centuries to the Lord Chancellor’s office. Questions arise as to whether and to what extent these inherent powers survived the 1922 Constitution and 1937 Constitution.
The view is that, although many prerogatives are inconsistent with the Constitution, certain prerogatives must of necessity vest in the State or the appropriate arms of the State including the residual role on behalf of persons with limited capacity.
The Wards of Court legislation applies principally to persons resident in the state or those with property here. The extent of the Wards of Court jurisdiction over assets abroad is uncertain. Certain reciprocal arrangements exist with England and Wales from pre-independence but they are hopelessly outdated in terms of their extent and the value of property to which they may apply.
The Hague Convention on the protection of adults does not have the direct force of law in the state. However, it has set certain international standards in relation to the cross-border extent of protective legislation over persons with mental incapacity. It provides that the state of the habitual residence of the adult concerned should take appropriate measures to protect their person and properties.
The Convention contemplates that authorities in that state should be able to make an application to the authorities in other contracting states, to request them to take measures to protect the property of the adult concerned. This includes
- State of which the adult is a national;
- the State of the preceding habitual residence of the adult;
- a State in which property of the adult is located;
- the State whose authorities have been chosen in writing by the adult to take measures directed to his or her protection;
- the State of the habitual residence of a person close to the adult prepared to undertake his or her protection;
- the State in whose territory the adult is present, with regard to the protection of the person of the adult
Where the property of an adult is situated within the jurisdiction, the authorities are to take steps to protect it to the extent compatible with those taken by the authority in the jurisdiction of the habitual residence.
The state has not yet ratified the Convention.
Wards of Court Office
The affairs of Wards of Court are administered by the Wards of Court office. The Registrar of Wards must be a barrister of 10 years standing or a barrister employed in the court offices for upwards of 12 years.
The Registrar plays a number of functions including both administrative and quasi-judicial functions. The former derives from the powers of the Registrar of Lunacy in Ireland and the latter applies from the Registrar or Master in the Court of Chancery.
The administrative functions include
- the keeping of records,
- minuting of orders
- preparation of court petitions and reports,
- administration of oaths and affidavits.
- filing returns by medical superintendent
- enquiring into state of mind of the alleged persons alleged to be of unsound mind and incapable of managing affairs.
- visiting each mental hospital and institution in which a Ward is resident (meeting ward in private.)
The latter functions are carried out under the auspices of the Registrar by the Wards of Court office.
The Registrar also has powers of a Quasi-judicial nature. This is powers to enquire into proposals concerning persons, their affairs and maintenance, or the maintenance of the families and report on them to the Judge. They also include certain functions in relation to declaration as to unsoundness of mind and certain enquiries following a referral by the President of the High Court.
The Registrar has powers to direct the General Solicitor for Minors and Wards to initiate proceedings where he is of the opinion that a person of unsound or weak mind and incapable of managing his person, property and affairs.
The Registrar may enquire into any delay in the conduct of proceedings and require persons involved to attend to explain and justify their conduct. He or she deals with applications to sell or lease or mortgage property belonging to a Ward.
The Registrar certifies the annual income which may be charged on the assets of the Ward. He also fixes fees payable to medical visitors. The Registrar determines cost issues and may allow or disallow costs or proceedings before him.
The Wards of Court office is supervised by the Registrar, the staffing requirements are set by the Courts Service. All court proceedings concerning out-of-court matters originate in and are administered by the Wards of Court office rather than the usual court offices.
The Accountant of the Courts of Justice and Wardship deals with Wards’ monies. It invests theWard’s funds. It must generally be lodged in authorised trustee investments.
The medical visitors are generally consultant psychiatrists chosen by the President of the High Court. They are responsible for certain duties in their respective parts of the country.
Where it is brought to the attention of the Wards of Court office, that a person may be of unsound mind, a medical visitor visits to enquire into his condition of mind and capacity to manage his person and property. He makes a report to the President of the High Court. If the report points to the person being of unsound mind, the President may direct it to be heard as if it was a petition. An order directing an enquiry and a medical examination is a court order.
Where a person’s assets are less than €6,350 and is desirable that the person be taken into Wardship, the Registrar may direct a medical visitor to report on his state of mind. If it appears on the report that the person is of unsound mind and incapable of managing his affairs, proceedings take place under a short reform procedure.
Where a ward is in a psychiatric hospital, and is maintained under the Social Welfare System, he must be visited at least once a year by the medical visitor. Where the Ward is resident in a private hospital, he must be personally visited at least four times a year, and intervals may not exceed four months.The medical visitor is obliged to make reports. He may also make special reports on particular matters of concern.
The President of the High Court may direct medical visitors to make special visits above the normal minimum requirements where, he wishes to be informed in relation to matters concerning the Ward. Medical visitors also play a range of other functions.
The General Solicitor for Minors and Wards carries out functions referred to him by the President of the High Court. He acts under the direction of the President. His functions include the following.
- investigation of the affairs of the persons alleged to be of unsound mind;
- institution of Wardship proceedings;
- acting as a committee in certain cases;
- acting as committee and the solicitor in matters involving Wards;
- dealing with taxation matters.
The General Solicitor may investigate the affairs of persons alleged to be of unsound mind. Where it is appropriate to bring Wardship proceedings, he or she may act as solicitor for the patient and family if the solicitor who would normally act, is unwilling or unable to do.
The General Solicitor is directed generally, to make enquiries regarding the lands and assets of the ward. He may institute proceedings to have previous transactions set aside if they appear that he may not have had mental capacity at the time.
The Registrar of Wards of Court office may direct the General Solicitor to institute proceedings where he is of the opinion that a person is of unsound or weak mind and incapable of managing his person, property, affairs and he believes it is appropriate to do so. This power may be used where no appropriate next of kin is available.
Where there is no suitable person in the jurisdiction to be appointed committee, the President may direct that the General Solicitor act as committee of the estate.