A NEW legal role of “personal guardian” will be created by a Mental Capacity Bill, expected to be published around Easter.
Minister for Justice Dermot Ahern announced details of the plan at a conference yesterday.
A “personal guardian” could be appointed by the High or Circuit Court to make decisions concerning the personal or property affairs of a person deemed to lack the mental capacity to make such decisions for themselves, he said.
The court could also refuse to appoint such a person and instead make the necessary decision itself, he said.
A new office of Public Guardian will be established under the legislation. The scheme of the Bill has already been published.
The primary role of the new office would be to supervise and monitor the exercise of duties of the court-appointed personal guardians. Over time this office will replace the existing Wards of Court office.
However, the Minister stressed that court intervention would only apply where it was not possible to support a person in making such decisions him or herself.
The new legislation, aimed at protecting people who suffer impaired decision-making capacity due to illness, dementia or an acquired brain injury, will replace the existing Ward of Court scheme.
He said that the legislation would presume that a person had capacity, and the person would not be treated as unable to make a decision unless all practicable steps to help that person make a decision had been taken without success.
Capacity will be understood in terms of a person’s ability to make a specific decision at a specific time, and will allow for the possibility that the loss of capacity may be temporary or permanent.
The Bill would also unify these measures with the legislation on enduring powers of attorney, where a person can pass decision-making powers to another person while they are still alive but when their health is deteriorating to an extent that it will impair their decision-making capacity. It would also enable the State to ratify the UN Convention on the Rights of Persons with Disabilities and the Hague Convention on the International Protection of Adults.
Noel Doherty, from the Office of the Wards of Court, said that at present there were about 2,200 people in wardship, of whom about 10 per cent were minors. The majority were elderly, and many of these had dementia. The number also included those with acquired brain injury, often from road traffic collisions.
The need for wardship often arose when the person concerned had to be cared for outside their home and the house needed to be sold. No one else could give consent for the sale. The provisions of Nursing Home Support Bill would alleviate some of that, he said.
Wardship was status-based, he said. “It’s an all or nothing situation, once a court declares a person is of unsound mind.” This then gave rise to a situation where the person could not make decisions on a wide range of issues.
He said the case officers in the Office of the Wards of Court had built up considerable expertise, mainly through on-the-job training and mentoring, as no formal training existed for their work. The office also drew on a panel of 47 medical practitioners.