The current law on wardship is wholly inadequate. Many aspects are likely to be inconsistent with the Constitution. The system may be contrasted with the much more elaborate protection is provided other than the Mental Health Act in relation to the detention and treatment of persons with mental health difficulties.
The Irish standards under the older legislation fell well short of international minimum standards in the areas. The criteria in the legislation were out of date.
Questions arise as to the procedural fairness of proceedings. There is no statutory right to a lawyer for the person concerned. There is no way of telling the basis of the medical affidavit. The standard of proof is relatively low. There is no provision for a halfway house by way of partial wardship. There is no provision for conditional or limited wardship other than under a narrow procedure under the Act.
There is nothing in the way of consultation with the ward in relation to the appointment of committees. The duties of the committee are not spelt out in legislation.
The Irish Law Reform Commission recommended the abolition of the current wardship system. It proposed a new system of protection for vulnerable adults. Its recommendations are aimed principally at elderly persons but are also applicable to other adults with decision making disabilities or who are otherwise in need of protection.
They proposed a concept of a protected adult. There would be two procedures for guardianship with substitute decision-making. There would be four levels of guardianship decision by the personal guardian, public guardian, tribunal and court. The personal guardian would be entitled to make routine decisions subject to the general supervision of the public guardian. Crucial decisions would be reserved for the public guardian. An appeal would lie to a tribunal and to court if necessary.
The Law Reform Commission system proposed possible orders for intervention, services orders and adult care orders. They would be available to persons who have legal capacity, for example, but are being abused or intimidated, subject to undue influence or are unable to access appropriate services or legal rights. They would also be available to persons lacking capacity who do not need substitute decision-making arrangements but who may need protection and intervention to resume and ensure a safe and comfortable environment.
Intervention orders would be made where one-off decisions are needed to protect a person. A service order would require a service provider to supply a service to meet the requirement of a person in need of protection. They would be available where having received a report as a result of an intervention order, the public guardian believes that the needs of the person could be met by the provision of particular services.
An adult care order directing a person to be removed from a residence to another home could be made by a tribunal on the application of a public guardian based on a report of foot of an intervention order.
It is proposed that the new system be underpinned by respect for human rights and constitutional rights. The intervention should be the minimum required and preserve the maximum degree of autonomy and self-determination.
Substitute decisions should take account of the known wishes of the person. Families and particularly spouses should have a right to say, where this is practical and consistent with a person’s best interest. The system should encompass procedural fairness.
A guardianship order would be made by a tribunal for the benefit of a person in need of protection if they are legally incapable, and as a result of this incapacity, are unable to make decisions about their property and affairs or are unable to make personal and health care decisions.
The tribunal will take account of assessments of needs carried out by the Health Services Executive and consider what is in the best interest of the person. The tribunal will appoint a personal guardian. Generally, the one person would be the guardian of the person and property although; orders may be made for appointment as guardian of person or property only.
The tribunal would have to be satisfied that the guardian is a fit and proper person. If no person is willing or qualified to act, a public guardian may be appointed guardian.
Role of Guardian
The powers of the guardian would be specified. They would include the following:
- where and with whom the protected adult should live.
- day-to-day care including the hiring of home help and carer.
- decisions regarding diet and dress.
- routine decisions regarding money and property.
The personal guardian would have access to the funds to the extent necessary to fulfill the obligations of guardianship. He or she may collect income from sources and make arrangements for dependents.
- a decision about the maintenance of dependants.
- day-to-day decisions on money and maintenance and social activities.
- decisions as to whom the protected adult may meet.
- decisions on applications for permits and approvals required by law.
- the commencement and settlement of legal proceedings.
- consent to emergency or necessary routine or minor medical treatment.
- guardians would have duties to promote and protect and promote the welfare and best interest of the protected adult.
- encourage the person for whom they are acting to develop and exercise capacity.
- encourage them to act in their own interests where possible.
- assist them to be a part of the community in so far as possible.
- consult the person and others who are interested in, and competent to advise of the personal care and the welfare.
The personal guardians will be required to be accountable, and sign a declaration that they are to act in the person’s best interest. They must furnish a report on the welfare of the adult and account for the person’s property, income and expenditure to the public guardian.
It is proposed that the tribunal should designate certain persons and must be informed of certain decisions. The guardian would be obliged to operate and help court personnel and medical practitioners under the legal obligation to monitor the care of the protected adult. Provision will be made for the discharge of guardians who did not act appropriately.
The personal guardian would be paid an allowance commensurate with the adult’s income for caring for the protected adult. They may be entitled to claim social welfare benefits. They would be entitled to expenses incurred in necessary decisions.
The system is proposed to be supervised by an independent office of the public guardian. The public guardian would have
- decision-making powers,
- supervisory power over personal guardians and attorneys,
- registering enduring powers,
- power to require certain services, p
- power to advise,
- supporting applications on behalf of vulnerable elderly people.
The office would be headed by a public guardian who would be an independent office holder. The public guardian would have a range of functions including
- power to deal with the assets of a protected adult in certain circumstances,
- right to approve sale and acquisition of property,
- right to apply for an injunction to prevent financial abuse and unconscionable behaviour and improvidence
- power to approve certain health care decisions.
- power to make services orders.
- power to apply for an adult care order.
Many routine decisions and powers, currently made by the President of the High Court would be made and exercised by the public guardian. The public guardian may also act as a personal guardian where no one else is available.
Personal guardians would be under the supervision of the office of the public guardian. Public guardians will be enabled to offer advice and assistance to personal guardians. Persons would be entitled to make complaints about the conduct of personal guardians to the public guardian.
The Law Reform Commission recommended that the tribunal deal with
- decisions regarding the general legal capacity of an individual
- making of guardianship orders,
- appointing personal guardians,
- making adult care orders and
- acting as an appeal from the decisions of the public guardian.
The tribunal would be proposed of a Judge with medical and lay personnel. There would be an appeal to the Circuit Court and ultimately to the High Court.
The tribunal will be more flexible and can make an assessment of needs. It would consider whether an option less than guardianship might suffice.
It is proposed that a range of persons including the HSE, the Mental Health Commission, public guardian and persons in need of protection should be entitled to apply to the tribunal for an order that a person be taken into guardianship, be subject to intervention services or adult care orders. Certain people would be obliged to be notified of the application similar to the procedure under an enduring power of attorney.
Determination of Capacity
The Commission proposed that there would be guidelines in relation to assessing capacity. A definition similar to that in the Mental Health Act was contemplated. The procedure would comply with constitutional fair procedure requirements while being relatively informal.
Certain rights would be granted to the patient concerned, including the right to be informed and object. They would have a personal advocate explain the issues, the right to be heard and produce witnesses and ask questions, the right to legal representation if necessary, the right to review documents, the right to be given reasons and a right of appeal.
Where a person or a spouse objects, a further assessment would be required which must be considered at the hearing. There should be a right of an appeal against a grant of an order to the Circuit Court.
The tribunal was recommended to have the power to make non-routine and major health care decisions.
The Court would be the ultimate appeal body from a tribunal or public guardian. Major lifetime decisions should be reserved to the President of the High Court or a Judge appointed.
The three major types of order contemplated were as follows:
An intervention order may be made where a single decision is required to protect a person. The order would only be made if it is shown that the person needed a specific decision on his behalf,
or his views are neglected and is unable because of mental and physical abilities, social or economic dependency to avail of social services and legal remedies or where protection from abuse is necessary, and a person is legally capable of making a decision or is unable due to fear intimidation or other factors.
The order would be granted if it would result in substantial benefit or the best interest of the person who required it and it is necessary because there is no less inclusive mechanism available to deal with manifest problems and the order is the least restrictive form of intervention available.
An intervention order may be made by the public guardian or the tribunal. It might involve the sale of property, entering into a contract. It could involve an enquiry into abuse or neglect. It may involve a financial investigation and could require an investigation by the consumer authorities or financial services ombudsman.
An intervention order may freeze transactions and a person’s account. It may grant temporary rights to a person to act on the person’s behalf where a full guardianship is not appropriate or is too burdensome.
A services order may require a service provider to provide a protective service. This may be a nursing home, home-help service, et cetera.
An adult care order may be made where having received a report under an intervention order, the pubic guardian is of the view that a person needs to be removed from an environment temporarily or permanently. This may require that they be moved to another home or facility.
The procedures in relation to an adult care order would be similar to those in respect of a guardianship proceeding.
Where the above measures are not required, the Law Reform Commission recommends that persons caring for those who lack capacity on specific matters should be under a statutory duty to act reasonably. If the other person undertakes the required expenditure, he should be entitled to be reimbursed.