It remains to be seen how well a new assisted decision-making system compares to its predecessor in protecting the assets of people who lack the capacity to manage their own affairs, the President of the High Court has said.
Mr Justice David Barniville said a team of staff at the High Court’s wardship office, together with appointed solicitors, have provided a “Rolls-Royce” service for protecting the finances and assets of people who were declared wards of court due to a lack of mental capacity.
Under the wards of court system, which is being phased out over three years, the High Court was regularly updated and asked to approve decisions about a person’s care, treatment and finances.
The 2015 Assisted Decision-Making (Capacity) Act has been in force since last April and is intended to maximise a person’s capacity to make decisions on four key areas: their health, welfare, finances and property.
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On Monday, Mr Justice Barniville discharged four people from the court’s wardship office to be assisted under the new scheme by nominated “decision-making representatives”. The judge had made just two such discharge orders before these applications.
Medical evidence was presented to the court as to whether the individuals had capacity to decisions on the key areas by themselves or with the assistance of a co-decision maker.
Moving all four applications, Marie Claire Butler, a solicitor in the wards of court office, said one of the individuals, a man in his late 80s, has been found to lack the capacity to make decisions on all four areas due to the severity of his dementia.
He lives in a residential centre and has been a ward of court for nearly a decade, but can be discharged, she said. She asked the court to appoint a local lawyer with experience in this area of law as his decision-making representative.
Hearing the man co-owns a property that appears to be occupied by his estranged wife or other family members, Mr Justice Barniville queried how he can be sure the man’s financial interests are protected by his proposed decision-making representative.
Under the wardship system, the judge was sure the man’s rights were protected by his court-appointed solicitor and committee, who provided the court with regular updates.
The judge said it seems he has no ability to take any further steps to promote the man’s position in the house, as “everything falls to the decision-making representative” under the new system.
“That gives me concern generally,” he said, adding that in another case the ward might have significant sums of money.
Mr Justice Barniville said it remains to be seen how well the new system compares to the old.
He made orders discharging the man from wardship and appointing a decision-making representative. The man’s capacity to make decisions must be reviewed by the Circuit Court within three years.
Ensuring the man’s interest in the house is protected will be a “critical” part of the representative’s role, the judge added.
Ms Butler noted the wardship office and the court were “breaking new ground” with these applications.
Also discharged from wardship on Monday was a widow in her 50s who has been a ward for nearly two decades. She required a representative to make decisions on her health, welfare, finances and properties until the Circuit Court reviews her capacity in two years, the court heard.
A man in his 80s was found to have capacity to make decisions only in relation to his personal welfare. His general solicitor, Patricia Hickey, representing his interests in wardship matters, applied for him to be discharged from wardship, with his finances transferred from the court’s office to his new representative who will make decisions about his health, finances and property.
The court made the orders sought, including one providing for his capacity to be reviewed by the Circuit Court within a year.
A fourth individual, a man in his 60s, was discharged after five years as a ward on the application of his general solicitor, Fiona O’Dwyer. He lives at home and manages well with supports, the court was told.
Mr Justice Barniville appointed a representative to make decisions about the man’s health, welfare, finances and property. The man’s capacity will be reviewed within three years.
