Ward of Court
The meaning of Wardship and Ward of Court can be confusing. The laws that deal with Wards of Court date to the 1800’s and therefore the labels, details and wording in this area are very confusing. Making someone a Ward of Court is often the last resort. We aim to answer all your questions. This helps you make an informed legal decision for your loved ones.
Wardship Explained
What is Wardship / Ward of Court?
Wardship is a type of application that can be made to the High Court. If a person becomes mentally incapacitated due to illness or other reasons and can’t make decisions, the family can apply to the High Court to make them a Ward of Court. There are approximately 2,500 applications per year for Wardship. The majority of these applications relate to age-related capacity-affecting disorders.
The Wardship procedure appoints a ‘Committee’, typically comprising family members, to manage an individual’s affairs. This process declares the person a ‘Ward of Court’. Wardship aims to safeguard the individual’s well-being and financial matters.
Types of Wardship / Wards of Court
Yes, generally there are two types of Wardship and Wards of Court:
1. Adults who are made Wards of Courts due to the inability to manage their own affairs, such as people suffering from dementia or Alzheimer’s, and
2. Minors being children under the age of 18 that require the protection of the Court.
By far the most common applications are applications for adults due to illnesses diminishing their capacity and resulting in them being unable to manage their own affairs. Therefore, our information focuses on this type of application. If you require advice on applications for Minors please contact us on 01 234 3732 or email info@jrplunkett.ie.
Legal Test to determine if somebody should be made Ward of Court
For the purpose of an application for Wardship/Ward of Court, the legal test is that the person is of ‘unsound mind and incapable of managing their own affairs’. The legal test dates from the 1800’s and is a purely medical one.
When is Wardship / Ward of Court needed?
When a person can no longer manage their affairs, they need an application. This is essential for dealing with assets like houses, bank accounts, investments, or other assets. Without mental capacity, the owner cannot access these assets.
When is Wardship / Ward of Court not needed?
If someone has already created an Enduring Power of Attorney, they don’t need to apply. The appointed attorneys can register and use it to bypass the wardship process. This approach transfers authority to the attorneys directly. It is important to note that a Power of Attorney does not have the same legal effect as an Enduring Power of Attorney and all authority transferred under a Power of Attorney ceases once the person loses their capacity.
Who can be made a Ward of Court?
If someone loses their capacity and has no Enduring Power of Attorney but needs asset protection, the court can designate them a Ward of Court.
Does the Ward of Court have to be in the Republic of Ireland?
To handle affairs in the Republic of Ireland, you need to make someone a Ward of Court. However, if someone resides outside of Ireland, they only need this status if they own Irish assets, like property.
Ward of Court Application Process
Where to apply
The President of the High Court, aided by the Registrar of Wards of Court, processes Wardship applications in the High Court. For cases with limited assets, you can apply to the local Circuit Court.
Who applies?
Generally, a family member of the person who has lost their capacity will bring an application to have them made a Ward of Court. However, it is not a requirement that a family member brings the application – a solicitor, doctor or hospital authority can bring the application.
How is an application made?
The President of the High Court determines applications, and the Registrar of the Wards of Court Office handles their administration. After a successful application, a caseworker takes charge of the file and serves as the Committee’s main contact.
The Court recommends that a person instruct a solicitor when proceeding with an application to the High Court. A solicitor will best be able to furnish the Court with all the relevant details needed to make the application; medical condition, details of income and assets and next of kin among other details.
An application is made by lodging the following:
- Submit a Petition: You’ll formally apply using this, and the applicant becomes the Petitioner. This Petition provides details about the individual for Ward of Court designation. It includes their address, PPS number, current residence, religion, next of kin, assets, liabilities, income, outgoings, and details about the Petitioner.
- Two medical reports, usually from the General Practitioner and Consultant of the person to be made a Ward of Court.
- Two medical affidavits sworn by the General Practitioner and Consultant of the person to be made a Ward of Court.
How does the application process work?
1. Submit Application and Medical Reports
The application is formally known as a ‘Petition’. The Registrar of Wards of Court reviews the Petition and medical evidence once lodged. If any queries arise, they contact the solicitor who submitted the application directly.
2. High Court Review of Application
The President of the High Court reviews the papers once in order. If the President deems it appropriate, the Court grants an Inquiry Order to consider someone for Ward of Court status. This order instructs a medical attendant to investigate and report on the person’s capacity. The President also ensures the individual receives the Wardship papers and requires proof of service to be submitted to the Court.
3. Court Case and Management of the Assets
After these requirements are met the case will be listed before the High Court for an Order to be made declaring the person a Ward of Court and making directions for dealings with their assets.
Wardship Process Timeframe
To make someone a Ward of Court, several parties, like doctors and consultants, must provide medical evidence. These factors determine the Wardship application’s timeframe. Typically, applications take around 9-12 months.
Will I have to appear in Court for a Ward of Court application hearing?
The Court determines wardship applications using affidavit evidence instead of oral evidence. Generally, you will not need to appear before the Court.
Will the details of the person to be made a Ward of Court be told to the Court in a public hearing?
The details of the Wardship application remain private and the President of The High Court generally reads the papers in private in advance of the Court list. The affairs of a Ward of Court are private and confidential and the Wards of Court Office cannot release information to the public.
Wardship Application Costs
Firstly, there is a cost payable to the Court for Wardship applications, this is known as Wardship levy and is dependent on the income of the Ward. These costs are payable to the state.
The court measures the legal costs of a successful Wardship application. The solicitor for the Committee submits their bill. Then, the court evaluates the bill’s reasonableness and approves the payable costs. In total, the costs involved usually are (but not limited to):
- Solicitor’s fees
- Medical reports
- Stamp duty
The Court will then discharge the monies for the costs from the Wards monies as lodged in the Court.
The costs of an application to make a person a Ward are paid from the assets of the Ward providing the application is successful. The person who applies for Wardship must pay the costs of Wardship in the event of the application being unsuccessful.
Ward of Court Objections
Complete the application process, then personally serve the proposed Wardship notice to the subject. The documents show the potential Ward of Court their right to object. The subject can object to becoming a Ward of Court.
They may object to being made ward of court by notifying the Registrar in writing within a certain time period. They will usually do this through a solicitor.
The subject of a Ward of Court application receives the documents personally. They are advised of their right to object. This safeguard protects against fraudulent applications.
Often there is no objection from this person as in losing their mental capacity they will have most likely lost the ability to understand matters, including the Ward of Court legal process.
Notify the Registrar of the Wards of Court if you object to another person being made Ward of Court.
What decisions can the Ward of Court still make?
The decisions that a Ward can make depend on the level of capacity the Ward retains. For example, once the Court receives satisfactory medical evidence, a Ward of the Court can make a will.
‘Small estates procedure’ for making someone a Ward of Court?
In certain circumstances, an application can go to the Circuit Court. This is for arrangements to access a person’s assets. It’s for those who lack capacity to handle their affairs.
Recovery of Ward of Court
In the event that a Ward of Court recovers an application can be made to the Court to discharge the Wardship. This application is based on medical evidence. It supports the claim that the Ward has regained capability. They can now manage their own affairs.
Death of a Ward of Court?
If a Ward dies the Committee must inform the Court and discharge the Wardship. The assets of the Ward of Court transfer to the Ward’s estate. They’re managed as per the Ward’s Will. If no will exists, the Rules of Intestacy apply. The role of the Committee will be discharged. After that, the Executors or Administrators handle the Ward’s estate.
New Wardship Ireland Laws
The Ward of Court system originated in the 1800s. Currently, a new law awaits commencement. The new law aims to replace the Wardship system. The Ward of Court system still applies, but we’re working to put the new system in place.
Act immediately if you need to make someone a Ward of Court for their best interests. Don’t wait for the new law. Seek advice now.
Committees
What is a Committee?
The Committee is the person or persons appointed by the Court to look after the affairs of the Ward of Court. Typically, the next of kin applies and gets appointed as the Committee. The Committee is responsible for
- overseeing the personal care of the Ward and
- assisting the court in its management of the financial affairs of the ward
The Court can appoint an appropriate person or persons as Committee. The Committee works with the Court. They must follow the Court’s direction. You can do this personally or via your solicitor. A committee appoints the next of kin. However, exceptions exist.
If there is no family or next of kin
When someone loses capacity without family or next of kin, they can become a Ward of Court. If no suitable person is available, the Court intervenes. It appoints a Court official. This official is known as the General Solicitor for Minors and Wards of Court. They act as the Committee.
Types of Committees
There are two types of Committees:
1. A Committee to look after personal care decisions of the Ward
2. A Committee of the Estate that looks after certain financial affairs of the Ward under the direction of the High Court. The Estate Committee actively manages the Ward’s day-to-day financial affairs, such as:
- Ensuring the Wards Property
- weekly expenses
- collection of pension and welfare entitlements.
- Keeping the Court updated on any matters that require court approval (change of address, consent for medical procedures etc.)
- Dealing with Tax affairs
A committee often oversees the personal care decisions and financial affairs of the Ward.
The committee holds a fiduciary relationship with the Ward. This means they must always act in the Ward’s best interests. The Committee must avoid conflicts of interest. They should maintain accounts of the Ward’s affairs. The Court may request these accounts.
The Committee has an obligation to account for all monies received. They actively track payments made for the Ward. They ensure every transaction is transparent.
What can the Committee not look after?
There are certain decisions that the Committee cannot make without the consent of the Court, such as:
- Sale of the Ward’s property
- Consent to medical treatment
- Consent for the Ward to leave the jurisdiction
- Commencement of legal proceedings on behalf of the Ward
What will happen if family members cannot decide or agree who should act?
When a conflict arises over committee appointments, the President of the High Court makes the decision. The President of the High Court prioritizes the best interests of the person becoming a Ward of Court. Family disputes won’t impact these interests. The Court understands that disputes can hinder a Committee’s function. If committee members disagree, the Court may intervene. It could appoint an official called the General Solicitor for Minors and Wards of Court. This official can act as the committee in dispute cases.
Are Committee members paid?
Committee members don’t receive payment for their work. They hold a position of trust. Receiving payment from the Ward’s funds would cause a conflict of interest.
Property and Assets of the Ward
Property and Bank Accounts
In relation to the Ward’s assets, actions vary based on the individual case. Typically, we undertake the following steps:
- The Ward lives in the property if it meets their needs. The Committee handles insurance and other expenses. If the Ward moves out, a decision is required. We’ll choose to sell or rent the property. The Committee will liaise with the Court in relation to proposals to deal with the property. When the property sells, the Court receives the proceeds. The Committee manages the rental income if rented.
- The Court typically liquidates bank accounts, investments, and shares and then lodges them.
Will of a Ward of Court
Once someone is declared a Ward of Court, the Court will order that their Will is lodged with the Court along with an Affidavit verifying the condition of the Will which should be provided by the solicitor who holds the Will. The Court confidentially retains the Will. They never reveal its contents before the death of the Ward of Court.
Upon the Ward of Court’s death, an official copy of the Will is available. The Executor can retrieve it from the Probate Office. If there’s no Executor, the entitled persons can administer the estate.
TALK TO US FIRST
If you’re concerned about a loved one, seek information on the Ward of Court procedure. Contact us at 01 2343732. Alternatively, email info@jrplunkett.ie. We offer a confidential chat about your situation.
