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 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.
Warship Explained
What is Wardship / Ward of Court?
Wardship is a type of application that can be made to the High Court. This application is made 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. 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 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 or making someone a Ward of Court is to protect the person and their financial affairs and ensure they are properly looked after.
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 applications. If you require advice on applications for Minors please contact Maria Lakes on 01 649 9900 or email probate@traceysolicitors.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?
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 / Ward of Court 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
Does the Ward of Court have to be in the Republic of Ireland?
It is only necessary to make someone a Ward of Court if there needs to be someone appointed to deal with their affairs in the Republic of Ireland. Therefore, if someone is resident outside of Ireland they will not have to be made a Ward of Court in Ireland unless they have an Irish asset, such as a property.
Ward of Court Application Process
Where to apply
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 limited circumstances, involving limited assets, an application can be made 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?
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; medical condition, details of income and assets and next of kin among other details.
An application is made by lodging the following:
- A Petition: This is the formal name for the application and the family member or person applying will be called the Petitioner. This Petition will give all the information regarding the person to be made a Ward of Court including, address, PPS number, current residence, religion, next of kin, assets, liabilities, income and outgoings and details of 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’. 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.
2. 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.
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
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 approximately 9-12 months.
Will I have to appear in Court for a Ward of Court application hearing?
Wardship applications are determined on Affidavit evidence rather than oral evidence before the Court. 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.
Warship 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 legal costs of a successful Wardship application are measured by the Court which means that the solicitor acting for the Committee will submit their bill of costs to the Court and the Court will determine the reasonableness of the bill and approve the costs that should be paid. 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
Once the application process is complete, a notice of the proposed Wardship must be served personally to the person who is the subject of the application. The documents that are shown to the potential Ward of Court will notify them of their right to object. The person who is the subject of a Wardship application can object to them being made a Ward of Court.
They may object to the 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 person who is the subject of a Ward of Court application is served personally with the application documentation and is advised of their right to object to the application – this is a measure to help safeguard the proposed Ward in the event of a fraudulent application.
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.
If you have an objection to another person being made Ward of Court you should notify the Registrar of the Wards 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, a Ward of Court may make a will once the Court is satisfied as to the capacity of the Ward based on medical evidence.
‘Small estates procedure’ for making someone a Ward of Court?
In certain circumstances, an application may be made to the Circuit Court for arrangements to be made to access the assets of a person who lacks the capacity to deal with 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 supporting the claim that the Ward has regained their ability to 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 then become a matter for the estate of the Ward and will be dealt with in accordance with the Ward’s Will or under the Rules of Intestacy. The role of the Committee will then be discharged and the responsibility for dealing with the estate of the Ward will be the Executors or the Administrators.
New Warship Ireland Laws
The Ward of Court system dates from the 1800’s and there is currently a new law that has not yet been commenced. This new law will, in time, replace the Wardship system, however, the law is not yet in place and therefore it does not apply at the moment and the Ward of Court system continues to apply.
If there is a need for a person to be made a Ward of Court it is in their best interests that an application be commenced immediately and you should not wait for the new law.
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. Generally, the next of kin that brings the application is appointed to act 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 is empowered to appoint an appropriate person or persons to act as Committee. The Committee acts in conjunction with the Court, they must adhere to the direction of the Court, either personally or through their solicitor. Generally next of kin are appointed as Committee but this is not always the case.
If there is no family or next of kin
If a person has lost capacity and has no family or next of kin they can still be made a Ward of Court. If there is no appropriate person to act as Committee, the Court can appoint a Court official, known as the General Solicitor for Minors and Wards of Court, to 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 who looks after certain financial affairs of the Ward under the direction of the High Court. The Committee of the Estate will look after the day to day financial affairs of the Ward 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
Often one committee is appointed to look after the personal care decisions and financial affairs of the Ward.
The committee is in a fiduciary relationship as regards the Ward, meaning they are in a position of trust and are obliged to act in the best interests of the Ward at all times. The Committee must also avoid conflicts of interest. The Committee should keep accounts of all affairs of the Ward and may be required to produce same to the Court.
The Committee has an obligation to account for all monies received and all payments made on behalf of the Ward at all times.
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?
In cases where there is a conflict or dispute as regards who should be appointed as the committee, the decision will rest with the President of the High Court. The President of the High Court will have the best interests of the person to be made a Ward of Court as a priority and will not allow a family dispute to impact on the best interests of the Ward of Court. The Court will be conscious that a Committee will not be able to function if committee members are in dispute and ultimately may appoint a Court official known as the General Solicitor for Minors and Wards of Court to act as the committee in cases of dispute.
Are Committee members paid?
Committee members do not get paid for their work as they are in a position of trust and receiving payment from the Wards funds would be a conflict of interests.
Property and Assets of the Ward
Property and Bank Accounts
The actions to be taken as regards the Wards assets depend on the individual case; however, in general, the following actions are usually taken:
- The Wards property: If the Ward is living in the property and the conditions are appropriate to the wards needs it may be retained and the Committee will deal with insurance and other expenses. If the Ward is no longer living in the property a decision will be made to sell the property or rent the property. The Committee will liaise with the Court in relation to proposals to deal with the property. If the property is sold the proceeds will be lodged with the Court and if the property is rented the rental proceeds are normally dealt with by the Committee.
- Bank accounts, investments and shares: These are normally liquidated and lodged with the Court.
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 Will is retained by the Court confidentially and the contents are never revealed before the death of the Ward of Court.
Upon the death of the Ward of Court, an official copy of the Will can be taken up from the Probate Office by the Executor or, if none, the persons entitled to administer the estate.
TALK TO US FIRST
If you are concerned about a loved one or would like more information on the Ward of Court procedure, do feel free to contact Maria Lakes, Head Wardship Solicitor, on 01 6499900 or email probate@traceysolicitors.ie for more information or for a confidential chat about your situation.
