Wardship in Ireland

Introduction

The Assisted Decision-Making (Capacity) Act 2015 (hereafter ‘The Act’) represents significant legislative reform in the area of disability rights. Upon its enactment, the Act was described by Inclusion Ireland as ‘a seismic cultural shift away from a paternalistic and ‘best interests’ approach …. to a rights-based approach of choice, control and consent’.

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The Act made numerous significant changes to the traditional system of wardship, which has consistently come under critique for being inflexible in its assessment of capacity, overly protective, and discriminatory.

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The Act establishes a modern statutory framework of support for adults who have impairments which may impact decision-making capacity. It centres the individual’s will and preferences and aims to provide practicable support to people who have difficulties with decision-making. However, the Act has yet to be commenced, and Ireland’s traditional wardship system, as governed by the Lunacy Regulation Act 1871, technically remains in operation.

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This chapter will examine the introduction and impact of the Assisted Decision-Making (Capacity) Act 2015 in Ireland. It will consider the previous system of wardship in Ireland and how the Act has altered this system, with particular reference to the assessment of capacity under the Act, forms of assisted decision making under the Act, powers of attorney, and advanced healthcare directives. Lastly it will consider the upcoming implementation of the Act.

Wardship in Ireland

The following section will outline the traditional system of wardship in Ireland, which is currently still in operation, and its impact.

Defining Wardship

The term ‘taken into wardship’ describes the scenario where an individual is deemed to lack capacity or unable to manage their own affairs, thus, according to the law, court intervention

387 Decision Support Service, Statement to Joint Oireachtas Committee on Disability Matters, 20 May 2021. 388 The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 20 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 16 Nov 2021. 389 Áine Flynn, ‘Foreword’ in Mary Donnelly and Caoimhe Gleeson (eds), The Assisted Decision-Making Capacity Act 2015: Personal and Professional Reflections (HSE, 2021).

is required.390

A decision of wardship is made by the President of the High Court and is based upon medical evidence relating to mental capacity or age.

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Where an individual is made a ‘Ward of Court’, a ‘Committee’ is appointed to act on behalf of the ward and manage their day-to day affairs.

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Notably, the Supreme Court has stated that where a person is made a Ward of Court, it is the Court who is afforded with the jurisdiction to decide on matters relating to the ward, including matters of estate.

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Furthermore, in exercising such jurisdiction the court is subject to the relevant constitutional provisions, and is bound to consider the best interests of the Ward.

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Accordingly, whilst the Committee plays a role in managing the property of the ward and decisions relating to the ward’s personal matters, the ultimate responsibility lies with the Court.

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The term ‘Ward’ is defined in Order 67, Rule 1 of the Rules of the Superior Court as follows: ‘a person who has been declared to be of unsound mind and incapable of managing his person or property and includes, where the context so admits, a person in respect of whom or whose property an order has been made under section 68 or section 70 of the Lunacy Regulation (Ireland) Act 1871.’

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As afore-mentioned, this system of wardship is governed by Lunacy Regulation (Ireland) Act 1871, and until the commencement of the Act, it will remain in operation. We note that the Act of 1871 is vague, derogatory in nature and perpetuates antiquated attitudes about persons with disabilities.

397 Following the commencement of the 2015 Act, no further applications for

390 ‘Ward of Court’ (Citizens Information, 26 March 2021) <https://www.citizensinformation.ie/en/health/legal_matters_and_health/wards_of_court.html#> (Citizens Information, 26 March 2021) accessed 14 November 2021. 391 Ward of Court’ (Citizens Information, 26 March 2021) <https://www.citizensinformation.ie/en/health/legal_matters_and_health/wards_of_court.html#> (Citizens Information, 26 March 2021) accessed 14 November 2021. 392 The Courts Service of Ireland, ‘Wardship-Adults’ <https://www.courts.ie/wardship-adults> accessed 14 November 2021. 393 In the Matter of a Ward of Court (Withholding Medical Treatment) (No.2) [1996] 2 IR 79. 394 In the Matter of a Ward of Court (Withholding Medical Treatment) (No.2) [1996] 2 IR 79. 395 The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 19 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 16 November 2021. 396 The Rules of the Superior Courts, Order 67, Rule 1 S.I. No. 15/1986. 397 The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 12 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 12 January 2022.

wardships can be made, and depending on the individual circumstances, current wards will either be able to have their autonomy restored, or they will transition into the new supports provided by the 2015 Act.

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However, due to a lack of complete implementation of the Act of 2015, the 1871 Act remains the only current provision for vulnerable adults, and the types of decisions it may dictate are wide-ranging and can be all-encompassing. Decisions such as how to manage personal finances, where to live, and other decisions of a personal nature are dictated by a courtappointed wardship committee.

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There are more than 3,000 people in the wardship system and, according to the Decision Support Service director Áine Flynn, there has been a ‘significant increase’ during the pandemic.

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The Implications of Wardship The act of bringing an individual under wardship has significant legal and practical consequences. However, there is no policy or piece of legislation which provides for consultation with the Ward when decisions are made on their behalf. Accordingly, it has been asserted that the system of wardship does not encourage meaningful efforts to ascertain the ward’s preferences in their own personal matters, including their place of residence, living conditions and general care.

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An example of this restriction and paternalism is one of the most controversial elements of wardship; the ban on marriage, as governed by the Marriage of Lunatics Act 1811. Under this act, marriages of wards of the court were automatically rendered null and void.

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enacted by Westminster and remained in the Irish legal system for 200 years.

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However, the Act of 1811 was repealed by the introduction of the Assisted Decision-Making (Capacity) Act

398 Decision Support Service, Statement to Joint Oireachtas Committee on Disability Matters (20 May 2021). 399 Kitty Holland, ‘Replacement Wards of the court system to be delayed without Budget funding’ The Irish Times (Dublin, 21 September 2020). 400 Kitty Holland, ‘Replacement Wards of the court system to be delayed without Budget funding’ The Irish Times (Dublin, 21 September 2020). 401 The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 73 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 16 November 2021. 402 Marriage of Lunatics Act 1811, 15 Geo 2 c 30. 403 Irish Human Rights and Equality Commission, ‘Human Rights and Equality Commission Granted Leave to Appear as Amicus Curiae in Disability Rights Case’ (Irish Human Rights and Equality Commission, 18 November 2020) <https://www.ihrec.ie/human-rights-and-equality-commission-granted-leave-to-appear-asamicus-curiae-in-disability-rights-case/> accessed 8 January 2022.