Wardship Procedure I

Commencement

Generally, an application or petition for a person to be made ward of court may be made by his or her next of in.  Next of kin are the closest relatives in accordance with the rules in the Succession Act.  Where no next of kin are available, a third-party may make an application.

The closest next of kin has the right to make the application.  Where an application is made by third parties, a waiver and consent of next of kin should be given.

As an alternative to the above, the Registrar of Wards of Court having received a report from a medical visitor may order proceedings be commenced as if the report was a petition presented by the next of kin.

Persons are generally taken into wardship where there are relatively significant assets.  Wardship may represents a mechanism for the realisation of property and maintenance of the ward.

Lack of Capacity

It is necessary to prove that person concerned lacks capacity.  This onus is on the person who makes the application.  The standard of proof is the balance of probabilities (more likely than not).  It must be proved that the person is of “unsound mind”  and is incapable of managing his affairs.  If this is found, them the court has a discretion, but is generally likely to take the person into wardship.

A person may be taken into wardship in order to attempt to unwind a foolish or improvident transaction where it may be shown that the person was not of sound mind.  A further immediate reason may be where e consent is required to a particular transaction or treatment, but the person’s consent may not be reliably obtained.

Proof of Capacity

A finding  of lack of capacity, such as to allow wardship will be based on expert evidence.  Experts may give opinion evidence in relation to matters within their expertise. In practice, theory, any medical doctor is regarded as having the expertise to give an opinion.  However, a consultant psychiatrist, neurologist and equivalent specialists are the witness usually relied on.

The type of specialist will depend on the nature of the condition.  Usually, a general psychiatrist will be appropriate. In other cases, a more specialist psychiatrist, such as a psychogeriatrician may be appropriate.  Where physical conditions such as brain tumours exist, a consultant neurologist or a neurosurgeon may be appropriate.

Medical Visitors

An application may be based on medical visitor’s report. The request for the medical visitor to examine a prospective ward may be made by any interested party.  If the Registrar is satisfied of the basis of the information / complaint, he may direct a medical visitor to examine the patient and report on his condition.

The medical visitor is an officer of court and must set out his findings fully and frankly.  His report must be filed with the Office of Wards of Court and submitted by the Registrar to the President of the High Court.

If it appears from the report that the person is prospectively of “unsound mind”  and incapable of managing his affairs, the President may direct the report stand and proceed as if it was a petition for inquiry.

It will direct a person to have carriage of the proceedings on the report.  This may be the Solicitor General if nobody else is available.  It will direct that the report and order be served on the respondent.  It may indicate who is to bear the costs.  The solicitor having carriage of the matter may be directed to obtain independent medical evidence.

Notice of Petition

The notice of the presentation of petition and report is served on the respondent/patient.  The respondent has the right to object to an inquiry being held and must be informed of this right.  The right of objection should be filed within seven days.

The notice should also specify the respondent’s entitlement to have the matter decided by a jury.  A particular form must be filed in order to activate this right. The inquiry must be held before a jury where the respondent resident outside the state. Jury hearings are extremely rare.

Service must generally be personal.  The respondent must be shown the original notice and left with a copy.  Where by reason of his persona, condition, personal service would be impracticable or expedient, substituted service may be ordered by delivering a copy to the person in charge of the institution concerned or where he is not in an institution, by delivering a notice to a person over 21- his dwelling house or last known dwelling house within the jurisdiction.

Court Stage

Where the respondent does not object, and does not demand an inquiry before a jury, the solicitor files proof of service together with an affidavit of an independent medical practitioner as to the mental condition of the respondent.  The Registrar fixes a date for hearing before the President of the High Court.  This should be assumed as practicable after service.

If the respondent has filed an objection the Registrar will not place the matter in the judge’s list until he has filed an affidavit from an independent practitioner, in relation to his capacity.  The Registrar may then direct an exchange of affidavits and may decide whether to have oral evidence  adduced.

The President may require the respondent to attend for personal examination as to whether he is mentally competent and as to whether he may wish for a jury inquiry.  If the President finds he is not mentally competent to form or express a wish as to an inquiry before a jury, he may direct the inquiry to be had before a jury.

The President may make directions as to the questions to be put to the jury and the procedure.  The matter proceeds in the same manner as judge and jury trials generally.  With a jury trial, the jury determines whether the person is of sound mind.  The procedure is held in public.  However, it is more inquisitorial than adversarial.  The rules of evidence are relaxed.

Commencement by Petition

The majority of applications to make a person a ward of court are undertaken by way of petition by the next of kin.  First, it is filed in the Office of Wards of Court, requesting an inquiry as to the soundness of minds of the respondent  and his capacity to manage his person and property.  It must be verified by an affidavit and two medical affidavits to the effect that the person is of “unsound mind”  and incapable of managing his or her affairs.

The petition requires certain details of the respondent including his or her name, age, description, marital status, religion, names of the carers, nature of the income, assets, property debts and details of the petitioner. The undertaking petitioner will pay the cost and expenses of visitation.

A statement of facts will also be required.  The applicant/petitioner must complete an affidavit in support of the petition. The Office of Wards of Court require that the affidavit contain certain detailed, including in particular, details of the examination out of the alleged mental condition.

Once the petition is filed, the Registrar submits it to the President of the High Court.  If he is satisfied by the medical evidence, he orders an inquiry  Upon making an inquiry, one of the medical visitors examines the respondent and reports to court.

Notice of Petition

Notice of the petition is given to the respondent/patient.  He is informed that an inquiry has been provisionally ordered and that if he wishes to object or require a jury, he must give notice to the Office of Wards of Court.  The petition must be personally served.

Where personal services are impractical or inexpedient, substituted service may be permitted by giving it to the person in charge of a psychiatric hospital or the place where the person is resident.

The respondent may object to the proceedings and/or request a jury. If the matter is objected to, it is put in the judge’s list and a medical affidavit is required from the respondent’s solicitor.

Inquiry

The procedure for an inquiry is inquisitorial. Generally, it may be on affidavit, but orders can be made to examine persons who give affidavit verbally. At the conclusion of the proceedings, the President makes an order, declaring whether the respondent is or is not of “unsound mind”  and capable of managing his affairs.  Where the President finds that the respondent has temporary incapacity, he may direct that the petition is treated as an application under section 103 (see below).

An inquiry is usually held privately without a jury.  If a jury however is requested or if not requested but the President is satisfied, the  respondent is not competent to express an opinion on an inquiry, the President may order an inquiry before a jury.  In practise, jury inquiries are rare. Where there is a trial before a jury, the jury makes the ultimate finding as to whether the person is of “unsound mind” .

Court Order

At the conclusion of one of the above types of application, the President may make an order declaring the person to be of “unsound mind”.  The order directs that the person is taken under the wardship of the court.  It may direct that he or she be detained in a residence or institution until a further order is made.

The order must, unless otherwise directed, contain a direction that the petitioner or person with carriage of the proceedings file a statement of facts and proposal for the management of the ward’s person and assets in the Office of Wards of Court.

It may direct as follows.

• appointment of the committee of the person and of the estate.
• lodgement in court of all accounts and transfer of shares.
• that the committee opens a separate bank account in the committee’s name to which all income is to be lodged.
• that the will is kept for safekeeping by the Office of Wards of Court.
• that the costs of the petition are to be paid as measured
• that funds are made available for the ward’s maintenance
• that the committee enter a bond with an insurance company, a security for performance of obligations.
• various other steps necessary in the circumstances.

Statement of Facts

Under modern practice, a statement of facts is required at the petition stage giving details of various matters including

• particulars of the ward’s situation.
• details of illness
• proposed committee
• assets and income.
• present maintenance arrangements.
• proposals for future maintenance.
• costs payable out of ward’s assets
• details of debts owed by the ward.

The Registrar may summon solicitors to attend the hearing in relation to the statement of the fact.

Report

In due course, the Registrar must prepare a draft report which is sent to the parties for comment, the matter is entered in the list for a day to settle the report. Notice may be given to parties who were originally party to the hearing or to such other parties as are appropriate.  Persons attending may object to the Registrar’s proposed draft.  The Registrar may allow an objection and amend the draft.

Where there has been an agreement or the Registrar determines the terms, the proposed arrangements are to be submitted to the President of the High Court for confirmation and direction.  This report is usually submitted without a formal proceeding and in the absence of party.  However, the matter may be subject to a petition where the President directs or where objections have been made, which have not been withdrawn and ion certain other circumstances.

The Registrar may dispense with the report and submit the minutes of an order, to give effective proposals for management.  In this case, the President may make an order in accordance with the minutes, with or without variation, with or without the attendance of the parties.