Discharge from wardship of court and assisted decision-making

On 26^th April 2023 the Assisted Decision Making (Capacity) Act 2015, as amended  (“the ADMA”) commenced, with provision being made for a ruling on all non-minor Wards of Court within 3 years of commencement. As such, all Wards over the age of 18 will be discharged from wardship and alternative arrangements will be made for them where necessary with the Decision Support Service supervising such arrangements.

It is intended that all Wards will be discharged by April 2026. Given the application process takes some time to complete, including a medical assessment by a medical examiner appointed through the Wards of Court Office, we recommend that those impacted by the changes take action as soon as possible. The cost of the application is legally aided and can be arranged through the Legal Aid Board.

“With all adult Wards expected to be discharged by April 2026, it’s crucial for those affected to initiate the application process promptly, ensuring compliance with the new legal framework.”

What is a Ward of the Court?

Under the antiquated legislation of the Lunacy Regulation (Ireland) Act 1871  where a person lacked capacity to make decisions, they were made a Ward of Court following an application to the High Court. Unfortunately, the 1871 Act did not consider the actual needs of the person to be so appointed. This legislation has long been regarded as a “blunt instrument”  and a blanket response to often complex and individualised circumstances.

“The Assisted Decision Making (Capacity) Act 2015 represents a significant shift from the antiquated Lunacy Regulation (Ireland) Act 1871, focusing now on individualized decision-making support rather than blanket measures.”

A Ward was not legally permitted to make decisions about their personal and financial affairs and every day life events. The result was that the High Court and a Committee became responsible for these decisions on behalf of the Ward.

Once made a Ward, a Committee was appointed by the High Court to work in conjunction with the Wards of Court Office and to manage the affairs of the Ward. A Committee could be made up of person or persons who were usually a relative of the Ward, but in circumstances where no relative was able to or willing to act, the General Solicitor for Minors and Wards of Court could be appointed to act as the Committee. The Committee would become responsible for the management of the Ward’s financial and personal affairs, with money to which the Ward was entitled and held in bank accounts in the name of the Ward being lodged in the Court.

Following commencement of the ADMA in April 2023, it is no longer possible for a person over the age of 18 to enter wardship. The updated legislation now focuses on decision-making support arrangements for the individual.

Discharging A Ward

In recognition of the need for alternatives, and on foot of the United Nations Convention on the Rights of Persons with Disabilities  ratified in 2018, under the ADMA wardship has been discontinued and all Wardships over the age of 18 will be reviewed in order to put in place an appropriate decision-making alternative for the individual.

The Ward, their committee or a relative, friend or another appropriately placed individual may seek a review of the capacity of the Ward before the relevant wardship court, i.e. the court that took them into wardship, usually the High Court.

Under Section 55 (1) of the ADMA the court will make a declaration following review of the Ward’s individual circumstances and declare that the Ward:

1. does not lack capacity, resulting in the immediate discharge from wardship and return of the person’s assets; or
2. lacks capacity unless a co-decision-maker is available to them to make decisions; or
3. lacks capacity even if the assistance of a person as a co-decision-maker were made available to them.

In all circumstances, the property of the Ward will be returned to them, their decision-making assistant, or their decision-making representative.

Assistance Options

If the Ward is deemed to require assistance following a Section 55 declaration, appropriate assistance is offered with the oversight of the Decision Support Service.  The assistance options aim to support individuals who may lack capacity but maintaining their personal decision-making power to an appropriate extent.

A decision-making assistant, a co-decision maker and a decision-making representative are the three options open to former Wards. The basic function of a person who adopts any such role, where possible:-

• assist the individual to obtain and more easily understand information relevant to the decision to be made;
• ascertain the wishes and preferences of the individual and assist them in expressing such wishes;
• ensure the individual’s decisions are implemented as intended.

Decision-Making Assistant

A Decision-Making Assistant is a person who is appointed by the former Ward to help them make decisions in respect of their personal welfare and affairs.

A Decision-Making Agreement will be made in writing, signed by both parties (and witnessed) and include relevant details of the types of decisions that assistance may be required for. The maximum term of a decision-making agreement is three years. The agreement must be registered with the Decision Support Service in order to be deemed legally effective.

There are certain types of people who cannot be appointed as a decision-making assistant such as those who have been convicted of an offence in relation to the individual to whom they ought to be providing assistance.

Co-Decision Maker

A Co-Decision Maker  may be appointed by the former Ward who will make decisions jointly with one another in respect of their personal welfare and affairs. Where a co-decision maker is appointed and a decision is in scope of their agreement, the decision must be made jointly.

A Co-Decision-Making Agreement will be made in writing and registered with the Decision Support Service within 5 weeks from the date the agreement is signed. A medical doctor must confirm that the former Ward has capacity to enter into the Co-Decision-Making Agreement.

Again, there are certain types of people who cannot be appointed as a co-decision-maker.

Decision-Making Representative

A Decision-Making Representative is appointed by the court to make relevant decisions on behalf of the former Ward. A Decision-Making Representative may be appointed in circumstances where:

• the individual lacks capacity
• there is no suitable person to act as a co-decision-maker with the individual
• where a suitable co-decision-maker is available but the co-decision-making agreement was not properly registered.

The decision-making representative acts as an agent for the individual who lacks capacity.

There are certain restrictions on decision-making representatives such as a restriction of disposing of the property of the individual as a gift, entering into settlement agreements on behalf of the individual without consent of the court and refusal of consent for life-sustaining medical treatment.

The Role of The Solicitor

Once appointed, your solicitor will lodge legal documents to start the Discharge from Wardship process with the Office of Wards of Court (“OWC”). A medical visitor will be appointed by the OWC who will conduct a review of the capacity of the relevant individual and draft a report. It is worth noting that there are only a limited number of medical examiners available and many applications to process, therefore we encourage that the application process is started as soon as possible.

Your solicitor will compile documentation and legal papers and serve same on relevant parties such as the Ward and their Committee and the relevant Court. The Court will fix a date for the discharge application to be heard at which a judge will discharge the wardship and put in place a form of assistance as required. The appointed solicitor will assist throughout the entirety of the discharge application process and the cost is legally aided, therefore the Committee will not bear the cost of the application.

For more information regarding the Assisted Decision Making (Capacity) Act 2015, please contact Mark Felton mark@amoryssolicitors.com , telephone 01 213 5940 or your usual contact at Amorys on our email address at info@amoryssolicitors.com .