Wardship Discharge in Ireland: What Families Need to Know (Part 2)

The  Assisted Decision Making (Capacity) Act 2015 (“ADMA”) commenced on the 26^th of April 2023, which has a wide ranging impact on all adult wards of court. The ADMA has sought an end to wardship, with all adults who are currently wards of court to be discharged by the 26^th of April 2026. Alternative arrangements will be made for all such persons as and under the ADMA, and the Decision Support Service (“DSS”) will oversee all such arrangements.

In this two part article we address common issues and questions arising in relation to the process of applying for discharge from wardship.
If you haven’t yet read Part 1 of this article, which explains the key steps and alternatives to wardship discharge under the Assisted Decision-Making (Capacity) Act 2015, you can find it here: Wardship Discharge in Ireland: What Families Need to Know (Part 1).

1. Who funds the legal costs involved?

All applications in respect of the discharging of wards, irrespective of the complexity of the matter, are completely covered by Legal Aid and so the Committee will not incur any fees or costs.

“All applications for the discharge of wardship are fully covered by Legal Aid, ensuring no legal fees are incurred by the Committee.”

2. How long does the process take?

The length of time in relation to these matters is contingent on receipt of the medical report in relation to functional capacity being made available and the court diary for providing dates to hear these applications. Currently medical reports are taking 3 months to obtain.

3. Once the Order for Discharge has been made available, do I need to make a separate application in relation to decision making?

Generally, the Assisted Decision Maker, Co- Decision Maker or Decision-Making Representative will be appointed on the same day that the ward is discharged from wardship. In some cases, it may be necessary for the application to be adjourned so that the appropriate documentation can be put in place. This will depend on the circumstances of each case.

Generally, persons from the committee, family members or other persons close to the ward will be appointed in respect of decision making – however – if there is no suitable person willing to act in this respect, the Decision Support Service will appoint independent persons to act as decision makers.

4. What is the benefit of appointing a solicitor?

A solicitor who is experienced in mental health law will be able to deal with this matter on your behalf, while keeping you informed through every step of the process.

“An experienced solicitor will manage the entire wardship discharge process on your behalf, ensuring you are supported every step of the way.”

In circumstances where these applications are entirely funded by legal aid, you will not have to pay for the legal fees of the solicitor instructed

For more information regarding the Wardship Discharge in Ireland, please contact Mark Felton mark@amoryssolicitors.com or Rachel Foley, trainee Rachel.foley@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys on our email address at info@amoryssolicitors.com .

Wardship Discharge in Ireland: What Families Need to Know (Part 1)

The  Assisted Decision Making (Capacity) Act 2015 (“ADMA”) commenced on the 26^th of April 2023, which has a wide ranging impact on all adult wards of court. The ADMA has sought an end to wardship, with all adults who are currently wards of court to be discharged by the 26^th of April 2026.

“The Assisted Decision-Making (Capacity) Act 2015 aims to restore decision-making rights to individuals who have previously been wards of court.”

Alternative arrangements will be made for all such persons as and under the ADMA, and the Decision Support Service (“DSS”) will oversee all such arrangements.

In this two-part article we address points of interest and questions relating to the process of applying for discharge from wardship.

Alternatives to Wardship:

Section 55 (1) of the ADMA outlines that once an application comes before the court, a declaration will be made in respect of the capacity of that person (with the assistance of a medical report regarding the person’s functional capacity). Once the capacity assessment has been made, the court will order one of the following in respect of the ward of court:

1. The Ward in question does not lack capacity, and so will be immediately discharged from wardship and the person’s decision-making ability and assets will be returned to them;
2. Upon the discharging of wardship, if the person requires assistance with regards to decision making, an assisted decision maker will be appointed, to help the ward make decisions regarding their personal welfare and affairs.
3. The Court may appoint a co-decision maker to jointly make decisions with the ward in respect of their personal welfare and affairs.
4. If the court takes a view that even with a co-decision maker being appointed, the ward still lacks functional capacity, the court will appoint a decision-making representative to make decisions on behalf of the ward.

In each case, the ward’s assets will be returned to them and will no longer be in the possession of the High Court.

“Once wardship is discharged, a person’s assets will no longer be controlled by the High Court but returned to them or managed under new decision-making arrangements.”

Who starts the process in respect of the discharge of a ward of court?

The Committee of the Ward in question will commence the process of discharge. The Committee should instruct a solicitor to deal with this application and inform the Ward in writing that wardship is coming to an end in simple terms and explain to them that a solicitor has been instructed to deal with this application. A medical advisor will be required to meet with the Ward in advance of any application and the ward should be informed of this also.

What actions are required by the Committee?

Once a solicitor has been appointed and the ward has been informed of same, the solicitor will deal with all aspects of the matter, such as drafting the relevant paperwork, lodging it with the court, drafting letters to the ward and all other necessary persons, organising the schedule of assets, drafting and swearing the Affidavit, service on the ward and attendance at court.

The Committee will be required to provide relevant information to the solicitor (such as details of the wards assets) and attend at court on the day of hearing.

Our next article will address the length of the process and the process itself.

For more information regarding the Wardship Discharge in Ireland, please contact Mark Felton mark@amoryssolicitors.com or Rachel Foley, trainee Rachel.foley@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys on our email address at info@amoryssolicitors.com .