Wards of Court
When a person becomes unable to manage their assets because of mental incapacity, an application can be made to the courts for them to become a Ward of Court. The court must make a decision as to whether they are capable of managing their 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 their 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 be taken into Wardship as a minor for reasons other than mental incapacity.
The Assisted Decision-Making (Capacity) Act 2015 provides a statutory framework for people who require assistance in making decisions about their welfare and their property and affairs. The Act provides for people who have been brought into Wardship to have their capacity assessed and brought under this new statutory framework instead – these parts of the Act have not yet come into operation.
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 they reach the age of 18. People in this category are not Wards of Court. If, however, the minor has special housing or care needs, they may be taken into Wardship as a minor.
If a house is bought for the minor, it is registered in their name. When they reach the age of 18 years, provided they are of full mental capacity, they can apply to the High Court for payment of any funds held on their behalf.
To be made a Ward, the court must be satisfied that the person is of unsound mind and incapable of managing their own affairs. In some cases, a person can be taken into Wardship for their own protection. This would normally only arise in the case of a person with a mental disability rather than a psychiatric illness.
How a person becomes a Ward of Court
If you think there are grounds for someone being made a Ward of Court you should contact a solicitor to take the necessary steps. Alternatively, if you do not wish to be involved in the application yourself, you should write to the Registrar of Wards of Court asking for the necessary steps to be taken.
In either case, information must be provided about their medical condition, next-of-kin, assets and income.
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(s) into whose care the ward is committed.
How to object to becoming a Ward of Court
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.
Providing for dependants
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.
Relief and payment of income tax
Wards have the same requirement 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 they employed one before 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 Ward's property
After the President of the High Court has made an order bringing a person into Wardship they appoint a committee to act on behalf of the Ward and give directions to bring the Ward's assets under the control of the court and make them available for the maintenance and benefit of the Ward.
Where it is necessary to sell the Ward’s home to provide for nursing home expenses or to prevent it from being vandalised, the Committee will be authorised by the court to put the property on the market.
Banks and building society accounts are usually closed and the proceeds lodged in court.
Buying a house
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 they are able to reside in the community and have sufficient means and if the Ward does not have adequate or suitable accommodation.
If the Ward is in residential care and their dependants need to be housed, property can be bought in the name of the Ward for their benefit.
Medical care for Wards
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.
Leaving the jurisdiction
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.
Resuming own affairs
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 their behalf. The application should be based on medical evidence to the effect that the Ward is now sound of mind and capable of managing their own affairs.
Making a will
A Ward may make a will if:
- They express the wish to make a will
- There is medical evidence that they are capable of making a valid will
- The solicitor instructed by the Ward is satisfied that they are capable of making a valid will
When a Ward dies
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 per annum. This maximum rate only applies if the Ward's net income in the proceeding tax year was €18,750 or more.