When a person becomes unable to manage his or her assets because of mental incapacity, an application can be made to the courts for this person to become a Ward of Court. The court must make a decision as to whether the person is capable of managing his or her own property for his or her own benefit and the benefit of his or her dependants. If it is decided that the person cannot manage his or her own property because of mental incapacity, a Committee is appointed to control the assets on the Ward's behalf.
A person under 18 years old may also be taken into Wardship as a Minor.
When a person is under 18 years of age and is awarded damages, the money is paid into the court and invested on the Minor's behalf until he/she reaches the age of 18 years. People in this category are not Wards of Court. If, however, the Minor has special housing or care needs, he or she is taken into Wardship as a Minor.
If a house is bought for the Minor, it is registered in the Minor's name. When the Minor reaches the age of 18 years, provided he/she is of full mental capacity, he/she can apply to the High Court for payment of any funds held on his/her behalf.
To be made a Ward, the court must be satisfied that the person is of unsound mind and incapable of managing his or her own affairs. In some cases, a person can be taken into Wardship for his or her own protection. This would normally only arise in the case of a person with a mental disability rather than a psychiatric illness.
The usual application procedure involves a person (called the petitioner) asking the High Court to hold an inquiry into whether the proposed ward (called the respondent) is of unsound mind and capable of managing his or her person or property. An application is also called a petition, this is a formal written submission to the court. Applications are normally made by a family member.
The person making the application should contact a solicitor because he or she must swear an affidavit which is witnessed by a solicitor. The application must include the opinion of two doctors, they do not have to be psychiatrists but they usually are.
If a person does not want to be involved in the application, he or she can also contact the Registrar of Wards of Court to initiate proceedings.
In either case, the following information, in relation to the proposed Ward, must be provided:
The President of the High Court then decides whether or not to conduct an inquiry. If an inquiry is ordered, the proposed ward is examined by a doctor sent by the High Court.
If you are made a ward of court, the court may appoint a Committee to deal with your personal affairs. The Committee means the person into whose care the ward is committed. The person who makes the application is usually (but not always) the person authorised to act as the Committee. If you live in a nursing home, the person who is in charge of that nursing home is excluded from being the Committee.
The petition or application to make you a ward of court must be served on you. You can object to the inquiry to make you a ward of court or demand that it be held before a jury. If you want to object, you must sign the objection notice and have this witnessed by a solicitor. If you object, there must be a hearing. The hearing is before the President of the High Court and there may be a jury if the judge so decides. You do not have a right to a jury.
Notice of the application must be served to the proposed Ward.
A proposed Ward is entitled to object to the application by writing to the Registrar of Wards of Court, usually, though not necessarily, through a solicitor.
A Ward who has dependants has a legal duty to maintain them and the Office of Wards of Court will make arrangements to provide for their maintenance and benefit according to their needs and the Ward's means.
Wards have the same liability to submit income tax returns as other taxpayers but the return is signed by the Committee on behalf of the Ward, or by the Ward's accountant, if the accountant was employed prior to the Ward being brought into Wardship. The principal tax reliefs are where exemption is granted by the Chief Inspector of Taxes under Section 189 of the Taxes Consolidation Act 1997 and medical expenses.
The appointed Committee acts on behalf of the Ward and gives directions to bring the Ward's assets under the control of the court and make them available for his or her maintenance and benefit.
Examples of how different types of property might be dealt with are as follows:
Property cannot be bought on behalf of a Ward as an investment because this does not at present constitute an Authorised Trustee Security.
A property may be bought on behalf of the Ward if the Ward is able to reside in the community and has sufficient means and if the Ward does not have adequate or suitable accommodation.
If the Ward is in residential care and his or her dependants need to be housed, property can be bought in the name of the Ward for their benefit.
In former years, most Wards were patients in hospital or nursing homes. Today, many live in the community or in sheltered accommodation. If a Ward needs medical treatment for which a consent form is required by the hospital, the approval of the President of the High Court should be obtained. In emergency cases, it may not be possible to gain approval. In this case, normal medical considerations should apply.
A person who is a Ward because of mental incapacity cannot marry, although being taken into Wardship after marriage does not invalidate the marriage.
A Ward of Court may not leave Ireland without the consent of the President of the High Court. In practice, permission to leave the jurisdiction is normally granted, taking into account medical or safety considerations.
An application by a Ward to be discharged from Wardship must be made to the Registrar of Wards of Court in writing by the Ward or by a solicitor on his or her behalf. The application should be based on medical evidence to the effect that the Ward is now sound of mind and capable of managing his or her own affairs.
A Ward may make a will if:
When a Ward dies, after any debts have been paid and when a Grant of Probate or Administration has issued, the estate is distributed according to the Ward's will or under the rules of intestate succession.
Legal fees from a Wardship application are normally paid out of the Ward's estate. These costs include solicitor's fees, medical report fees and stamp duty. Court percentages (annual levy on Ward's income) are also payable. At present, the maximum rate of court percentages is 750 euro per annum. This maximum rate only applies if the Ward's net income in the proceeding tax year was 18,750 euro or more.
If you have a question relating to this topic you can contact the Citizens Information Phone Service on 0761 07 4000 (Monday to Friday, 9am to 8pm) or you can visit your local Citizens Information Centre.