When is it required to make a person a Ward of Court?
When a person is of unsound mind and is incapable of managing their own affairs
and
It is appropriate ad necessary to protect his or her property or person.
When is it required to make a person a Ward of Court?
There is jurisdiction to make a person a ward of court who requires the Court’s protection but who has no property requiring such protection and management.
The ward of court jurisdiction is a discretionary jurisdiction.
How to make a Ward of Court Application?
A petition “praying for an inquiry as to the soundness or unsoundness of mind” of the person (Respondent) is filed with the Office of the Wards of Court. This is signed by the person making the application (called the petitioner) and witnessed by their solicitor.
Then the petitioner must sign an Affidavit of Verification, which is also lodged in the Wards of Court Office. These documents are available on the courts website.
Once the documents are reviewed and approved by the office, they are given to the President of the High Court in his chambers. Then the President directs an independent assessment of the person by a medical visitor from the Court’s own panel.
Then the President will review the report of the medical visitor and if it confirms that the person is of unsound mind and incapable of managing their affairs, he will make an inquiry order in chambers.
An attested copy of the Petition and the Inquiry Order is sent to the petitioner. Then Notice of the petition and the order of inquiry must be served on the person personally and any other persons directed by the President of the Hugh Court.
Service is effected by showing the person the attested petition and leaving a copy of it with them, with the required notice endorsed on the back of it. Details of the the service must be then endorsed on the attested petition. Then the attested petition and an Affidavit of Service are filed with the Office of the Wards of Court.
How long does it take?
Following service, the Respondent has 7 days to object in writing. The Inquiry is then listed for hearing. If there are no objections from the Respondent or third parties, then an the application will usually be granted on the hearing date.
It usually takes approximately six weeks from the date of lodgement of the papers with the office, to the hearing date. Delays in service may effect this time frame.
Who pays the costs?
The legal costs of a wardship application and of on-going wardship proceedings are in most cases paid out of the ward’s estate which include solicitor’s fee, fees for medical reports and stamp duty which is charged when the declaration order is made. The legal costs are usually paid when all of the ward’s assets have been brought under the control of the court. Depending on the necessity for the continued involvement of a solicitor further legal costs may arise at a later date.
What are the costs?
The Office of Wards of Court is part of the High Court and there is a levy charged on all wards’ incomes (known as a court percentage) which is paid to the State. The rate of court percentages is €750.00 per annum but this rate only applies if the ward’s net income in the preceding tax year was €18,750.00 or more.
Who is the Committee?
It is the person appointed by the President of the High Court to act on behalf of the ward. It is normally the person who made the ward of Court application, but not always.
The ward’s assets are lodged with the court and made available for his maintenance and benefit by his committee. Usually, the court will authorise the committee to collect the ward’s pension, let his farm and house.
Ward of Court v Enduring Power of Attorney
If a person has validly executed an Enduring Power of Attorney, prior to losing mental capacity, this may elevate the necessity to make the person a ward of court.
The committee of a ward of court can only do what the court authorises him to do. The committee has no inherent jurisdiction. The Attorney usually has the wide ranging powers to make decisions about the persons affairs, unless there are restrictions stated in the Enduring Power of Attorney document.
In a 2017 case, The Health Service Executive v J.M. A Ward of Court, the H.S.E sought to have further ventilator support and other life sustaining treatment withheld from a person who was a ward of court. The parents of the ward of court objected. The President of the High Court heard the matter and visited the person in hospital. The President ruled in favor of the H.S.E ruling that the burden of such further treatment would outweigh the limited benefits of it.
An Enduring Power of Attorney can give an Attorney power to make specified personal care decisions. These may include where the person is to live. An Enduring Power of Attorney cannot give an Attorney power to make medical decisions on behalf of a person.
See Madden Law’s blog on creating an Enduring Power of Attorney.
More Information
There was a very insightful article on the use of the Ward of Court system in the Irish Times by Mary Carolan recently, which can be viewed here.
