The Wards of Court system is past its sell-by date. It offered protection to adults who were vulnerable following an accident, or because they suffered from certain degrees of mental illness. But it was a blunt instrument.
There are between 2,000 and 3,000 Wards of Court in Ireland. Under the system, they lose all rights, including the entitlement to marry and travel freely, as well as control over even the most minor financial decisions. Frequently people were made Wards of Court because they had come into the possession of large amounts of money, which relatives or others felt they were unable to administer due to some mental incapacity. A person with a similar mental incapacity, but with little or no money, would not be made a Ward of Court. Such a system sits ill with modern thinking on equality and human rights.
The Law Reform Commission has been considering this issue for more than two years, publishing its first consultation paper in 2004 and organising a broad-ranging conference on best practice regarding the treatment of vulnerable adults in 2005. These include young adults who might suffer a brain injury or intellectual disability, and some elderly people who lose certain mental faculties. The commission has now published its final report.
The common thread running through this work is the need to emphasise capacity rather than incapacity. A person may be capable of making many decisions, but not some major ones. For example, they may be able to run a small bank account for their personal expenditure, but not a property portfolio. The commission stresses the need to support people making their own decisions where they have the capacity to do so - even if it seems to others that their decisions are unwise - as well as involving others in the more complex decisions.
The commission has outlined mechanisms for such support, including the appointment of a guardian, a person close to the vulnerable adult who could manage aspects of his or her affairs. Such personal guardians would be supervised by an independent Public Guardian. A Guardianship Board, chaired by a High Court judge, would replace the Wards of Court office.
Difficult issues arise in relation to the medical treatment of vulnerable adults and it is proposed that routine treatments should be regarded as lawful if they are clearly in the person's best interests, while major medical interventions, like sterilisation, or the ending of life support, would require a decision of the High Court.
This report is welcome and proposes overdue reform. The Government should act on its recommendations with legislation deserving cross-party support.