Disappearing act

The changes to be brought about by the Assisted Decision-Making (Capacity) Act, when it is commenced, have been discussed for many years. But change is now imminent, writes Patricia Hickey.

The 2015 Assisted Decision-Making (Capacity) Act, when commenced,, will introduce a new protection regime and new legal framework for supported decision-making for vulnerable adults, with a rights-based approach to decision-making capacity. 

The current substituted decision-making under wardship will be replaced by assisted decision-making and will be based on the adult’s ability to make a specific decision at a specific time.

The new act does not apply to minors, save for a minor who turns 18 within a specified period of time from the date of commencement. Any minor aged less than 18 at the date of commencement of part 6 will not be affected by this act.

The act will only apply to minors who turn 18 within 2.5 years, and then a further 0.5 years, from the date of commencement. The current regime for minors will continue as a separate entity to this act under the Courts Service.

This new act will assist in complying with human-rights obligations contained in the Constitution of Ireland, the European Convention on Human Rights, and the United Nations Convention on the Rights of Persons with Disabilities. Draft heads of bill, when completed, are intended to form a new part of the Assisted Decision-Making (Capacity) Act 2015.

Changes may be introduced by the bill, but the ultimate ethos of the act will remain. This has not been finalised to date, but a provisional commencement date of June 2022 is expected, and hard work is being carried out by many departments and offices to make this happen.

Applying for a declaration

The category of persons who may apply to the Wardship Court seeking the court to make a declaration under section 55(1) for a ward who has attained the age of 18 by the date of commencement of this part of the act are:

• The ward,
• A relative or friend of the ward who has had such personal contact with the ward over such period of time that a relationship of trust exists between them, or
• Such other person as appears to the Wardship Court to have a sufficient interest or expertise in the welfare of the ward.

Notwithstanding the facility for the ward, a relative, friend, or such other person with sufficient interest being entitled to apply within the three-year period, the Wardship Court shall, within three years of commencement of this part, make a declaration for a ward who has reached 18 by that date, or reaches 18 within two-and-a-half years from that date. If the minor reaches 18 within six months after the period of two-and-a-half years, as aforesaid, then the court must make a declaration of capacity within six months.

It is expected that the committee of the ward will also be eligible to apply for the declaration in the amendments to the act.

Main elements

The main elements of the act that will replace the current wardship system for adults are:

• Repeal of the Lunacy Regulation (Ireland) Act 1871, subject to transitional arrangements,
• Provision for non-court decision support arrangements, namely assistant decision-making agreements and co-decision-making agreements,
• Conferral on the Circuit Court of jurisdiction to appoint decision-making representatives for vulnerable adults and to deal with applications in respect of enduring powers of attorney and advance healthcare directives,
• Reservation to the High Court of decisions concerning organ donation and the withdrawal of life-sustaining treatment,
• The establishment of the Decision Support Service in the Mental Health Commission.

The new act will provide that an application may be made by the ward, or a category of person prescribed in section 54, to the Wardship Court for a declaration as to capacity of the act. In any event, the Wardship Court is obliged to make a declaration as to capacity in respect of every ward within three years of commencement of part 6 of the act.

The orders that the Wardship Court may make are to (a) declare that the person does not lack capacity, or (b) declare that the ward lacks capacity unless a co-decision-maker is appointed to make one or more than one decision, or declare that the ward lacks capacity, even if a co-decision-maker is appointed.

The court can seek expert reports. For the purposes of an application, the court may direct that such reports as the court considers necessary be furnished to it, including:

• Medical reports relating to the relevant person who is the subject of the application (including reports relating to the cognitive ability of that person),
• Reports relating to the circumstances of the relevant person (including financial reports and valuations of property in which the relevant person has an interest), and
• Reports from healthcare professionals or other relevant experts relating to the relevant person.

Where the Wardship Court makes an order that the ward lacks capacity, it may make such orders as if that court were exercising the new jurisdiction under part 5.

Current regime

The current regime of wardship remains in place until the act is commenced, and will continue to exist for a period of three years. Once commenced, no applications will be made to the Wardship Court for a declaration under wardship.

Currently, new applications are still being made to bring adults under the protection of the current wardship system. This is necessary at present as, until the new act commences, and in the absence of an enduring power of attorney, there is no other system to oversee the personal care and finances of a person who is deemed to lack capacity to manage their affairs.

However, it must be borne in mind that any application to bring a person into wardship will only continue until the new act commences, and decisions and proposals made for a ward must be construed with a longer-term view that the adult will no longer be part of this old system of substituted decision-making. More and more emphasis is being placed on the wishes and preferences of a ward, and short-term decisions are being taken in light of the imminent changes.

Once an application is made to the Wardship Court to review and make a declaration on the capacity of the ward, then the process of dismissing the ward from wardship commences. However, it is important that work is carried out now and going forward to ensure that the ward is prepared for the ultimate discharge from the wardship process. This will include the following:

• Ensuring that each adult ward has a bank account to receive the moneys held in court.
• Legal proceedings – prepare for amending the title to proceedings, dealing with outstanding costs to date of discharge, settling proceedings, and obtaining court consent to accept settlement as soon as possible to try and complete proceedings in a timely manner. If it is not possible to settle or complete proceedings, then perhaps delaying applying for discharge from wardship until litigation is complete (as long as it is within the three years of commencement of the act) or requesting the Wardship Court to make such order to continue proceedings, as if exercising the jurisdiction under part 5 of the act.
• Completion of conveyance – both purchase and sale of property on behalf of a ward. If not completed, a conveyance may fall in the absence of preparing for discharge. This may require inserting special conditions dealing with possible discharge pending commencement of the act, or delaying applying for discharge from wardship until the conveyance is complete. Requesting the Wardship Court to make such order to complete conveyance as if exercising the jurisdiction under part 5 of the act.
• Probate and administration – if the committee acted in the administration of an estate on behalf of the ward then, on the discharge of the ward, they should apply to immediately revoke the grant, which would have been limited to the term of the committee acting. Delaying an application for discharge may be prudent if the administration is almost complete to avoid the necessity of applying for a new grant.
• Detention/deprivation of liberty orders – applying under the new mental-health legislation when implemented.

The act will not affect the validity of any order made by the Wardship Court within its jurisdiction that is in force immediately before the commencement of part 6. Pending a declaration of the court (as set out above), the jurisdiction of wardship continues to apply.

Discharge

The right of a ward to apply for discharge from wardship on recovery and to resume management of his/her own affairs exists under the current wardship regime under order 67 of the Superior Court Rules.

The current practice for applying to be discharged is that a medical report is submitted to the Registrar of Wards of Court, setting out that the ward has recovered.

The registrar, under the direction of the court, will arrange for a medical visitor (usually a psychiatrist) to visit the ward for the purposes of preparing a report for the court on the capacity of the ward.

If the medical visitor is in agreement that the ward has regained capacity, then the President of the High Court may make such order as the circumstances require. This usually involves an order restoring the ward to possession and management of his/her property, discharging the committee, and discharging the person from wardship.

The changes to be brought about by this new act have been discussed for many years, certainly as long as I have worked in the Courts Service. However, it would seem that change is imminent. There will always be an element of fear in change, but we cannot fear the leaves changing, for it leads to the next season.

This article is intended as general guidance in relation to the subject matter and does not constitute a definitive statement of law.

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