Wardship Post-2023

Review of Capacity of  Adult Wards

An application for a declaration  in respect of a ward who has attained the age of 18 years by the date of commencement of the Assisted Decision Making Act in April 2023,  may be made to the wardship court at any time—

• by the ward,
• by the committee of the ward, or
• with the consent of the wardship court, by a relative or friend of the ward who has had such personal contact with the ward over such period of time that a relationship of trust exists between them, or) such other person as appears to the wardship court to have a sufficient interest in, or expertise in relation to, the welfare of the ward.

Notwithstanding this, the wardship court shall, within 3 years from the date of commencement of the Act, make a declaration in respect of a ward who—

• is 18 years or older by that date, or
•  reaches the age of 18 years within 2 years and 6 months from that date.

Where a ward reaches the age of 18 years after the period specified, the wardship court shall, within 6 months of the ward reaching that age, make a declaration under section 55(1) in respect of the ward.

Court Assistance

The wardship court, on application being made to it  or in certain proceedings , may allow the ward, if he or she has not instructed a legal practitioner,  to be assisted in court by a court friend for the ward unless, s, there is another person (“court assistant”) in respect of whom the court, having regard to the known will and preferences of the ward, is satisfied that such person is suitable, willing and able to assist the ward during the course of the hearing.

Where, on an application being made to the wardship court or in proceedings

• the ward the subject of the application or proceedings has not instructed a legal practitioner,
• there is no court friend for the ward, and
• here is no court assistant in respect of the ward,

the wardship court may direct the Director to appoint a court friend for the ward.

Declarations following review and discharge

The wardship court, on an application being made to it  declare that the ward does not lack capacity, or make one or more than one of the following declarations:

• that the ward lacks capacity, unless the assistance of a suitable person as a co-decision-maker is made available to him or her, to make one or more than one decision;
• that the ward lacks capacity, even if the assistance of a suitable person as a co-decision-maker were made available to him or her.

Where the wardship court makes a declaration it shall immediately discharge the ward from wardship and shall order that the property of the person the subject of the declaration be returned to him or her and give such directions as it thinks appropriate having regard both to the discharge and the circumstances of that person.

Where the wardship court makes a declaration, it shall, on registration of a co-decision-making agreement, discharge the ward from wardship and shall order that the property of the person the subject of the declaration be returned to him or her and give such directions as it thinks appropriate having regard both to the discharge and the circumstances of the that person.

The provisions in the 2015 Act apply to decision-making representatives appointed, or to be appointed, by a wardship court under Part 5 as they apply to decision-making representatives appointed, or to be appointed, by a court under Part 5. A reference  to a decision-making representation order in the legislation includes a reference to a decision-making representation order made by a wardship court.

Declaration

Where the wardship court makes a declaration  but—

•  there is no suitable person to act as co-decision-maker for the person the subject of the declaration after his or her discharge from wardship or
• a co-decision-making agreement in respect of the person the subject of the declaration after his or her discharge from wardship is not registered in accordance with Part 4 within a period set down by the wardship court,

the wardship court shall (subject to it allowing for any extension of the period set down by it)—

• as if it had made a declaration make such orders and give such directions under Part 5 of the 2015 Act as it considers appropriate as if the wardship court were the court under Part 5, and
• discharge the ward from wardship upon the appointment of a decision-making representative in respect of him or her, and
• order that the property of the person the subject of the discharge under paragraph (ii) be returned to him or her upon the appointment of a decision-making representative in respect of him or her

Where the wardship court makes a declaration of discharge it shall—

• make such orders and give such directions as it considers appropriate under Part 5 as if the wardship court were the court under Part 5, and
• discharge the ward from wardship upon the appointment of a decision-making representative in respect of him or her, and
• order that the property of the person the subject of the discharge from wardship  returned to him or her upon the appointment of a decision-making representative in respect of him or her.

Review by wardship court as respects capacity

Where the wardship court makes a the wardship court shall make an order that the capacity of the person the subject of the declaration be reviewed by the court—

• not later than 12 months from the date on which the wardship court made the declaration, or
• not later than 3 years from the date on which the wardship court made the declaration if the wardship court is satisfied that the person is unlikely to recover his or her capacity,

and the 2015 Act review provisions shall apply in respect of the review as it applies to the review of a declaration by a court.

After the review has taken place, the 2015 Act  shall thereafter apply to the declaration by the wardship court   with the following modifications:

• a reference to a declaration made by the court  shall be read as a reference to a declaration made by the wardship court
• a reference to a relevant person shall be read as a reference to the person the subject of the declaration of the wardship court
• reference to any of the persons concerned in the matter rshall be read as a reference to any person who has attained the age of 18 years and who has a bona fide interest in the welfare of the person the subject of the declaration of the wardship court

Saver

The repeal of the Lunacy Regulation (Ireland) Act 1871 does not affect the validity of any order  made by the wardship court within its jurisdiction, and which was in force immediately before the commencement of the Act.

Pending a declaration  the jurisdiction of the wardship court shall continue to apply. Notwithstanding its repeal by, the Lunacy Regulation (Ireland) Act 1871 shall remain in force on and after the date of the coming into operation of this Part with regard to any proceedings in being on that date that were initiated under that Act before that date.

When, in proceedings re the wardship court makes an order by virtue of which a person becomes a ward, it may in those proceedings , also make a declaration under section 55(1) in respect of the ward and the relevant provisions o shall then apply accordingly.

This provision shall not prevent—

• the appointment of a decision-making assistant
• the appointment of a co-decision-maker
• an application to the court under Part 5 in respect of,
• the registration of an enduring power under the Act of 1996
• the registration of an enduring power under the Act of 1996,