Jude Murray BL: Winding down wardship

How many wards of court are there?

There are currently approximately 2,153 adult wards. This figure changes due to new wards being declared. The Courts Service Annual Report publishes statistics. There are approximately 146 minor wards. The Assisted Decision-Making (Capacity) Act 2015 applies to adult wards, not to minors.

Will all wards of court be released from wardship?

All adult wards will be released from wardship once Part 6 of the 2015 Act commences, and once a capacity review of the ward has been completed. This will either be done within three years of Part 6 commencing, pursuant to section 54(2) of the Act. Legal practitioners can apply for a capacity review to be carried out sooner via a section 54(1) application.

What will happen to a ward’s funds?

If a former ward is deemed to not lack capacity, all of their property will be returned directly to them. If a former ward is deemed to lack capacity, funds will be released to the former ward pending the registration of a co-decision-making agreement with the Decision Support Service (DSS).

If a former ward has no capacity, property will be returned to the former ward, to be managed by a decision-making representative (DMR). The court can appoint an applicant, e.g. a spouse or close relative, as a DMR, or the court can select a DMR from two nominees made by the DSS.

Will it be possible for some wards to be released without any decision-making support?

Yes, if a review shows that the ward does not lack capacity (s.55(1)(a)), they will be discharged with property returned to them, to manage their own affairs.

If funds are released to a former ward, what if they spend all of the money? What about future care?

If funds are released to a former ward on the basis that they have capacity to make their own decisions, they are free to spend or save their money as they wish. Similar to any individual, if they decide to spend all of their money, they will no longer have resources to supplement State supports, and will become reliant on what the State can provide.

If a ward’s funds are invested by the Wards of Court Office, what will happen to those investments when the ward is discharged from wardship?

The value of the investment will be transferred to the former ward. The Court Service’s investment arrangements will no longer apply to funds transferred out.

How will an adult be brought into the new system?

Capacity will be treated functionally, by decision type and by time, i.e. not for all decisions and for all time unless absolutely necessary.

If an adult does not lack capacity, they might like to put in place an advance healthcare directive (AHD), templates for which can be downloaded from the Decision Support Service’s website. There is no requirement to register an AHD anywhere in order for it to be a valid representation of wishes.

If an adult’s capacity is fluctuating and/or they are losing capacity, they may wish to put in place decision-making supports, such as a decision-making assistant or a co-decision-maker and associated written agreements.

If an adult has no capacity, e.g. suffers a catastrophic brain injury, the court can appoint a decision-making representative who will be ordered to make specific decisions within a specified timeframe. The court can also make these decisions. There will be no committees.