End of archaic High Court wardship system welcomed but new service faces challenges

Eileen*, a childless widow with substantial assets, was made a ward of court after a social worker became concerned about her decision-making capacity when she told him she was a former taoiseach and ran the country.

Shortly before her capacity assessment was due, substantial funds were withdrawn or transferred from her bank account. Her committee in wardship later sued on her behalf, and the High Court found €900,000 was transferred or withdrawn from her account to accounts of her nephew in the year before Eileen was taken into wardship; €500,000 was transferred hours before Eileen was scheduled for her capacity assessment.

The High Court found the nephew had exercised undue influence over Eileen, and granted judgment for €900,000 in her favour against him. The court was heavily critical of the failure of any official at her bank, on any occasion when the frail woman attended there with her nephew to make the withdrawals/transfers, to have any regard to the sums involved or to make any inquiries of her.

Pat*, aged in his 40s, is unhappy that his mobile phone access continues to be supervised. A ward of court for the past five years, he has an intellectual disability and resides in a care unit where he says he feels trapped. He was made subject of High Court orders some years ago, restricting his phone access and confiscating his passport after staff discovered he planned to go to America with a woman he met on an internet dating site.

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Margaret*, a chronically anorexic young woman, has had hospital admissions for mental health issues since 2013 and was diagnosed with anorexia some years ago. She was made a ward of court in 2019 on foot of evidence that her illness was impacting her capacity to decide on her medical treatment and with a view to getting her more specialised treatment in the UK. The only reason she made some progress in the UK was with a view to getting home to Ireland, Margaret later admitted.

Her situation deteriorated so much after her return, the HSE asked the High Court in 2021 to lift orders permitting forcible tube-feeding of her and instead pursue palliative care. Eating disorder experts testified coercive measures would not change the direction of Margaret’s illness and were against their ethical and medical judgment for reasons including her vehement opposition to them. The HSE’s intention was for doctors to step back and give Margaret an opportunity to take control of her fate. She was discharged from wardship and a range of treatments remained open to her on a voluntary basis.

[*Not their real names]

These cases illustrate just some of the dilemmas faced by judges dealing with wards of court. This month , a long-awaited law will see the High Court wardship system, which dates back to 1871, finally abolished and replaced by a new rights-based Decision Support Service (DSS) to support adults with capacity issues in making key decisions about their health and finances.

The assisted decision-making regime, with its focus on the will and preferences of those affected, has been widely welcomed, but faces some challenges.

Ensuring adequate supports and safeguards for more than 2,000 people being discharged as wards, and a safe transition to the individual, rather than collective, management of €1.76 billion in funds belonging to adult wards, are among them.

Wardship operated on a best interests principle, criticised by some as patronising and paying inadequate regard to individual rights and autonomy when it comes to making personal decisions. Some criticisms included the HSE seeking to have intellectually disabled women made wards to protect them against abusive relationships rather than pursuing other options, such as seeking safety or barring orders.

Many of those familiar with the daily operation of the wardship list say the HSE and the courts were often caught between a rock and a hard place for reasons including inadequate services to address crisis situations. Wardship has also been perceived as an effective way of ensuring services for vulnerable people, because having the High Court pushing for services can prove more effective than families trying to do it themselves. In anticipation of the new decision support regime, significant changes were made to wardship, including the appointment of guardians ad litem to ensure the voice of the ward is heard.

The Assisted Decision-Making Capacity Act, 2015 was hailed as a revolutionary piece of legislation, transforming Ireland’s capacity laws when it was introduced. Eight years and some amendments later, it will finally come into full operation on April 27th under the title, Assisted Decision Making Capacity (Amendment) Act 2022.

In line with the requirements of the United Nations Convention on the Rights of People with Disabilities (UNCPRD), the Act replaces substituted decision-making with a rights-based approach, centred on respecting the will and preferences of the person. The intention is to maximise autonomy for people who require support to make decisions about their personal welfare, property and financial affairs.

The operation of the Act will be overseen by the DSS, based in the Mental Health Commission. Under it, every adult will be assumed to be able to make decisions for themselves unless the opposite is shown. It will cover day-to-day decision-making and major decisions such as sale of property and healthcare decisions. This includes for people to make advanced legally binding healthcare directives before any loss of decision-making capacity caused, for example, by a serious illness.

In the event of a future loss of capacity, the directives may be used to inform family members and healthcare professionals about the will and preferences of the decision-maker.

All adult wards will be discharged from wardship by the High Court over the next three years and, where appropriate, the former ward, now to be referred to as “relevant person”, will transition to one of three new decision support arrangements (DSA) under the Act. These are a decision-making assistant (DMA), a co-decision-making assistant (CDMA) and a decision-making representative (DMR).

If the wardship court declares the ward does not lack capacity, they will be immediately discharged from wardship and have their property returned to be individually managed

The Circuit Court will deal with applications for DSAs, and three extra judges have been allocated to deal with those. Funds of €1.76 billion now held in the High Court for adult wards, which under wardship were collectively managed by an investment expert committee chaired by the High Court president, will be paid out to the former wards.

The investment committee, anticipating the commencement of the new Act and the need to effectively manage wardship funds to be paid out over the next three years, decided 18 months ago to pursue a de-risking strategy under which relevant funds in longer term investments were de-risked into short-term investments.

Future management of these funds will depend on the new DSAs, if any, which are put in place. Any such arrangements will be decided by the wardship court on a case-by-case basis. If the wardship court declares the ward does not lack capacity, they will be immediately discharged from wardship and have their property returned to be individually managed.

When a ward is discharged, the committee which represented their interests can also apply to be discharged. Committees often comprised family members or, where there was no, or no suitable, family member, the general solicitor for wards of court or another appropriate person.

Under the new system, a committee may be appointed by a former ward as a DMA or CDM. The wardship court may also, in appropriate cases, appoint a former committee as a DMR.

The Judicial Council, Law Society and Courts Service are all involved in training judges, lawyers and court staff concerning the operation of the new system. During the training, several challenges were identified, including uncertainty about the volume of cases under the Act, ensuring the new procedures are communicated to all key stakeholders, possible delay in having wards discharged and insufficient resources and community supports.

While describing the long delay in fully commencing the Act as “unfortunate”, Patricia Rickard Clarke, of Safeguarding Ireland and Sage Advocacy, says the new law is “revolutionary”, “potentially affects us all” and is, “on the whole, light years ahead of wardship”.

Wardship was very much based on a medical model, she says. “If, for example, an individual had dementia, it was presumed they could not make decisions and there was no examination of their decision-making ability.”

The Circuit Court will deal with cases under the Act except for applications to deprive a person of liberty which will be dealt with by the High Court. The focus, says Rickard Clarke, should be on having administrative procedures and to minimise the need for going to court.

She agrees the collective investment of wards’ funds worked very well but says individuals are entitled to manage their own money as they see fit and the Act provides for assistance in that regard. Some wards have minimal assets and those with substantial assets are likely to have their own financial managers, she adds.

The decision-making supports, believes Rickard Clarke, mean there will be “far less abuse” of money management.

There are wider concerns, she acknowledges, including the absence of safeguarding legislation and “no proper health or social care legislation to deal with very challenging cases”. Nursing home regulation needs to be improved and proper safeguarding measures are necessary to ensure real autonomy for vulnerable adults, she stresses.

There are gaps in the Act but the move from best interests to will and preferences is “very important”, says Rickard Clarke. “There will be teething issues but cases arose in wardship in the past where families exploited the assets of wards. There is more safeguarding in this Act regarding relatives.” She particularly welcomes the DSS having oversight in terms of safeguarding.

The amended Act provides for a welcome streamlining of the process for making Enduring Powers of Attorney (EPAs), adds Rickard Clarke. Just 6 per cent of people here have taken out EPAs and she hopes the new process will encourage many more to do so.

She is opposed to the “blanket denial” to people with mental health difficulties of the right to make an EPA and believes that should be addressed via safeguards. Another concern is the Act does not provide for independent advocates or for legal aid for wards for their reviews.

A baseline population of 200,000 people – including people with dementia, acquired brain injury and intellectual disabilities – may potentially avail of the Act

—  Decision Support Service research

She is confident the DSS will be “quite proactive” in telling organisations what they should do to ensure the system works effectively.

Áine Flynn, director of the DSS, says the new service is an “important and long-awaited” reform and its focus on a functional assessment of decision-making capacity is a “radical departure” from an archaic wardship system with its focus on a “medicalised model” of capacity assessment.

There is “huge impatience”, including among a large number of wards, to get it up and running as soon as possible, says Flynn.

According to research for the DSS, a baseline population of 200,000 people – including people with dementia, acquired brain injury and intellectual disabilities – may potentially avail of the Act. The estimated number of applications for a DMR, the top-tier of the service, is 8,800 over five years with an estimated 22,000 applicants across all three tiers.

Everyone, stresses Flynn, has a presumption of decision-making capacity and the first step is about supporting people to make decisions independently.

We see ourselves as a public-facing service. This is for all of us. None of us knows what is ahead for us, we need to ensure we are at the heart of our own decision-making

—  Áine Flynn, director of the DSS

Following extensive engagement with stakeholders, she is confident in the processes and supports put in place by the DSS. Its powers, she notes, include the ability to apply to court where concerns arise, including to suspend a DMR and replace them with a person from a panel with legal and social work expertise assembled by the service.

The HSE’s health and social care department has done a lot of work in preparing its staff for the new service and the DSS has engaged with organisations including the Garda, banks, credit unions, legal and property services and citizen information services.

Addressing concerns about how the new service will operate in practice, she says: “There is a lot of clamour and competing viewpoints, some are very wedded to wardship, but we will get there. We are absolutely committed to this and very enthusiastic to get it up and running, people have waited long enough. The voices we really need to be listening to are the people who will be benefiting.”

The DSS will keep its practices under review and engage with stakeholders, she pledges. Carers and others who have expressed concerns about how to deal with the service “will not be facing into a bureaucracy”.

“We are determined to ensure a service that is fit for purpose, we see ourselves as a public-facing service. This is for all of us. None of us knows what is ahead for us, we need to ensure we are at the heart of our own decision-making,” says Flynn. “We need to get out of 1871.”