There are a number of older procedures by which an inquiry may be made as to a person’s mental capacity. However, in lieu of these procedures, the matter may be determined in a normal jury trial style. Where the respondent is outside the jurisdiction and served abroad, the petitioner must apply for an order for an inquiry before a jury.
There is a shortened procedure available where the person’s estate does not exceed €6,304 or income does not exceed €380 per annum. The procedure is a simplified version of the above procedure. It is usually commenced by a report from a medical visitor. The originating notice of application is served on the respondent. The respondent has the opportunity to object to the proceedings.
As soon as practical, after service of the notice, the Registrar submits the medical visitor’s report evidence and any notice of objection to the President of the High Court. After considering the application, the President may make an order without counsel or parties. Alternatively, he may refer the matter to an inquiry, to a Registrar or may set it down for hearing.
There are different procedures depending on whether the application is made externally or on the initiative of the court office itself. The latter procedures are broadly similar but are a simplified version of the above.
The application is generally considered by the President in chambers. The President may refer the matter to the Registrar or to a hearing.
There exists a special procedure where a person has been found guilty but insane. This procedure is now rendered largely irrelevant by the Criminal Justice (Insanity Act) 2006.
There is a procedure by which a person may be appointed a guardian of a person who is temporarily incapable of managing his affairs where he is of a “weak” mind. The procedure is rarely used in practice.
The board practice is similar to that set out above. A petition is signed by the petitioner setting out certain particulars. Certificates by registered medical practitioners are required. An undertaking is given by the proposed guardian. In the alternative, the application may be based on a medical visitor’s report in which event the report is directed to stand as a petition.
Notice must be given to the person concerned. On receipt of the petition, the Registrar must notify one of the medical visitors with directions to visit the respondent to ascertain if he is a proper subject of an application. He must report on these matters for the Registrar. The person concerned has the right to object to the proceeding.
Subject to broadly similar procedures as apply above, the President may ultimately make an order appointing a guardian and specifying the powers of the guardian as are necessary in the circumstances. The President may make an immediate order or may direct that the petition be set down for hearing.
Orders appointing a guardian are valid only for six months. The order must direct a medical visitor to visit the temporary ward. Where the medical visitor concludes that the temporary ward has recovered, no further steps may be taken, and the order will lapse in due course.
Where the visitor concludes the person has not recovered, an order is made automatically extending the wardship for six months. Where the illness ceases to be temporary it is treated as if it is a report of a medical petitioner and may be the basis of a petition for an inquiry.
Apart from the Lunacy Regulation Act, there is an inherent jurisdiction to take persons into protective jurisdiction of the wards, as a ward. The procedures were used prior to the enactment of more modern childcare legislation in the 1990s. However, they are still available in appropriate cases.
The procedures have been used in cases where a person refuses to consent to life-saving operations. The cost and expenses relating to wardship matters may be ordered to be paid out of the ward’s estate. Where a petition fails, the petitioner will generally be liable for the costs.
However, if a petition is properly presented for the benefit of the person concerned, it may be payable out of the estate (assets of the person concerned) even if it is unsuccessful. It must however be a bona fide, there must be reasonable and good grounds for the petition. This may occur where the medical affidavit supported the application.
Persons under 18 years old, whether or not suffering from mental incapacity, may be made wards of the court. The Circuit Court or High Court may make the order concerned. The Circuit Court has power where the assets did not exceed a certain level.
The application is often made to protect the assets of a minor. The application may also be made and granted where it is in the interests of the minor’s welfare. The jurisdiction does not depend on the existence of assets or income on the part of the ward. Parents, guardians or others interested in the welfare of the child, may institute proceedings to have him made a ward of court.
Where a person has been awarded substantial damages when under the age of 18, wardship may be appropriate. A “guardian of the fortune” may be appointed, for example, to purchase assets on behalf of the minor. Where a minor has special care needs, the wardship may be used as a mechanism for releasing and applying his funds for his care and benefit.
In wardship proceedings of this nature, the paramount consideration is the ward’s welfare. The jurisdiction is a broader version of that over the Guardianship of Infants Act.
There is a special procedure for making a minor, a ward of court. An application is made to the Office of Wards of Court. A summons is issued by the Registrar of the Office of Wards of Court. It is based on an affidavit which must set out details of the minor and his position, income, assets, close relatives, proposals for care and maintenance, direction sought etc.
The court may appoint a guardian of the fortune of the minor. The court maintains a continuing supervisory jurisdiction and function.
Circuit Court Procedure
There exists a parallel jurisdiction for the Circuit Court in wardship matters. It arises only where the assets of the person concerned are less than €6,348 (£5, 000) or where income does not exceed €380 (£300). The Circuit Court also has jurisdiction over wards who are under the age of 18 years.
There is s special form of civil bill as to capacity which is designated for the institution of proceedings to make a person a ward of court. The petitioner or his solicitor files a civil bill with the County Registrar, in the county where the person alleged to be unable to manage his affairs resides. The Civil Bill must give certain particulars, set out assets and liabilities, particulars of dependants and confirm the property qualification for CC jurisdiction.
Affidavits must be filed by persons interested in the wellbeing of the person concerned and by a medical practitioner. The medical practitioner’s affidavit must set out the nature of the alleged unsoundness of mind.
The respondent may file a response within 10 days and contest the matter. If he fails to lodge an appearance, an application may be made to the Circuit Court office for the appointment of a guardian for the purpose of representing the respondent. If an appearance is entered, a defence is required which would set out the basis on which the application is disputed.
The applicant may serve a notice of trial, on all persons concerned. At the hearing, the Circuit judge considers the evidence in relation to the application. He may direct a further medical affidavit. He may adjourn the matter pending receipts of reports.
Circuit Court Appointment
If the Circuit judge is of the opinion that the respondent is of “unsound mind” , and incapable of managing his affairs, and that he requires protection, he may declare the person to be such and appoint or give directions to the appointment of a guardian of the person or property. Separate guardians may be appointed. The guardian may be a spouse or next of kin. The preferences of the respondent may be taken into account where he is capable of understanding the matter.
The guardian must give security. The Circuit Court order will specify the powers of the guardian. The funds may be directed in such manner as the judge directs. The guardian may be ordered to render accounts to the County Registrar’s office.
If the assets of the person concerned increase beyond the jurisdiction of the Circuit Court, this must be notified to the Circuit Court office and the Office of Wards of Court. An application may be made to have the matter transferred to the High Court.
The guardian must make annual returns to the Circuit Court office similar to those required of in the Office of Wards of Court.
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