What is Wardship?
Wardship is a type of application that can be made to the High Court if a person becomes mentally incapacitated, meaning that they can no longer make decisions for themselves because they have lost the ability to do so by illness or otherwise, and the only option open to the family is to apply to the High Court to make the person a Ward of Court. Making someone a Ward of Court is usually the last resort and therefore we would like to answer all of your questions so you can make an informed legal decision to help your loved ones.
The Wardship procedure is complex but the end result is that a ‘Committee’, usually made up of family members, is appointed to deal with a person’s affairs and the person is declared to be a ‘Ward of Court’. The purpose of Wardship is to protect the person and their financial affairs and ensure they are properly looked after.
The Legal Test
For the purpose of an application for Wardship 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 needed?
An application is needed when the person is no longer able to manage their own affairs and there are assets to be dealt with such as a house, bank accounts, investments or other assets. These assets cannot be accessed by anyone if the owner has no mental capacity to deal with them.
When is Wardship not needed?
An application is not needed if the person that has lost their capacity has previously made an Enduring Power of Attorney that can be registered by the appointed Attorneys and used to avoid the wardship process. This process allows authority to be transferred to the Attorneys. 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?
Any person who has lost their capacity, has no Enduring Power of Attorney in place and has assets that require protection can be made a Ward of Court.
The Application process:
Applications for Wardship are generally made to the High Court and dealt with by the President of the High Court with the assistance of the Registrar of Wards of Court who deals with the day to day administration of the applications. In certain circumstances, involving limited assets under €50,000 without property, an application can be made to the local Circuit Court.
Who can apply?
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 the application made?
Applications are determined by the President of the High Court and the administration of the applications is completed by the Registrar of the Wards of Court Office. Upon completion of a successful application, a caseworker will be assigned to the file and will act as the point of contact for the Committee.
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 by way of a formal application called a Petition and medical condition by way of two medical reports, details of income and assets and next of kin among other details.
How does the application process work?
- Petition and Medical Reports:
The application is formally known as a ‘Petition’. Once the Petition and medical evidence are lodged with the Court, the Registrar of Wards of Court will review the papers and raise any queries that may arise directly with the solicitor of the person who submitted the application.
- High Court Review of Application:
Once the papers are in order the President of the High Court will review the papers and, in the event that the President is of the view that it is appropriate for the person to be made a Ward of Court an Inquiry Order will be granted by the Court. The Inquiry Order will direct that an investigation is carried out by a medical attendant instructed by the Court to report on the capacity of the person to be made a Ward of Court. The President will also direct that the Wardship papers be served on the person to be made a Ward of Court and proof of service of the papers lodged with the Court.
- 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.
The process to make someone a Ward of Court is reliant on a number of parties, such as doctors and consultants who must furnish medical evidence. Therefore, the timeframe for completion of a Wardship application is dependent on these factors. In general, applications can take between 9-12 months.
For further information please visit our website at https://www.jgs.ie/ or call our office at 01-4540068
Author: Michelle Collier
John Gaynor & Co. LLP
42-46 Thomas Street