The Ward of Court Process in Ireland
The Ward of Court Process in Ireland
If someone close to you is no longer able to manage their own affairs, either due to ill-health, injury or old age, then it may be necessary to make them a Ward of Court. Once they are made a Ward of Court, the President of the High Court becomes responsible for their welfare and assets.
Enduring Power of Attorney or Ward of Court?
A Ward of Court application (or Wardship application) is the only alternative to the Enduring Power of Attorney (or “EPA”) process. Both are mutually exclusive and it should be remembered that an Enduring Power of Attorney can only be entered into when you are of sound mind and able to manage your affairs Once someone becomes unable to manage her affairs or if they have received a diagnosis which indicates that there are (or will be ) cognitive issues, the option of creating an Enduring Power of Attorney may no longer available.
While the creation and registration of an EPA has little or no Court intervention, the same cannot be said for the Ward of Court process.
While there are two types of Wardship applications, one for adults and one for minors, the majority of Ward of Court applications before the High Court relate to adults who have become unable to manage their own affairs and require the protection of the High Court to ensure that their welfare and their property is protected. This can arise either as a result of disease (Alzheimers or dementia) or accident (acquired brain injury).
What is a Ward of Court Application?
In its very simplest terms, once the Ward of Court application is made, the High Court becomes responsible for the welfare and property of the person (the Ward) and all decisions made in relation to the Ward are approved by the High Court.
This does not mean that family members are not involved in the process as the High Court does not act alone in discharging its duties to the Ward. A Committee (which can be one or more persons) is appointed by the Office of Wards of Court to deal with the day-to-day issues surrounding the Ward and their welfare. Ordinarily, these are family members who accept the appointment and liaise with an appointed case officer from the Office of Wards of Court regarding care and financial decisions for the Ward. This is a unpaid role but out of pocket expenses can be reclaimed if they arise.
There are two types of committee that can be appointed by the High Court – (1) a Committee of the Person (who has responsibility for overseeing the personal care of the Ward) and (2) a Committee of the Estate (who oversees the financial affairs of the Ward). Ordinarily, the Committee is appointed to perform these dual functions but the views of the proposed Committees will be considered by the Office of Wards of Court when vesting power in them.
So what is involved in a Ward of Court application?
The application is drafted (called a “Petition”) by your solicitor and lodged with the Office of Wards of Court. The Petition contains details of the proposed Ward including their assets, liabilities, the cause of their incapacity, a brief history of same and a request that the proposed Ward be made a Ward of Court. The Petition is usually executed by a family member but can also be brought by a concerned third party (doctor or family friend), if necessary,
The petition is supported by two medical affidavits from the proposed Wards doctors. These confirm to the High Court the doctors belief that the proposed Ward can no longer look after their own affairs by reason of a specified illness or disability.
Once the papers are received, the matter is listed before the High Court and the application is presented by your solicitor. If the Judge is satisfied that the criteria has been met and if it is in the proposed Wards best interest, then an Order will be granted making them a Ward of Court.
At his point, the Committee is appointed and a case officer from the Office of Wards of Court is assigned to the matter. This case officer will be involved in all aspects of the Wards care & financial decisions into the future.
So what happens after the Order is made?
Once the High Court Order issues for the Office of Wards of Court, it is served on all financial institutions who hold money on behalf of the Ward. The Order instructs each financial institution to close the accounts held and forward the proceeds to the Accounts of the Courts of Justice, who hold and invest the money on the Wards behalf.
The Will of the Ward is lodged with the Office of Wards of Court with a document called and “Affidavit of Plight and Condition”. The Will of the Ward is then lodged with the Probate office for same keeping.
A Committee account is opened to meet the Wards day to day expenses and other financial arrangements are made to pay the Wards living expenses (either from the committee account or directly from the Accounts of the Courts of Justice, depending on the case).
The Committee assumes responsibility for the Wards affairs. This includes, but is not limited to, the collecting of their pension, payment of life assurance, payment of health insurance, the managing of the committee account, purchase of clothes and personal items, the payment of utility bills and other costs including nursing home and care costs.
They also assume responsibility for the Wards property and if they decide to sell same (and use the money for the care of the Ward) or rent it (and use the money for the benefit of the Ward), they must make an application to the High Court seeking approval of their proposal.
What happens when a Ward of Court dies?
As the last Will and Testament of the Ward has been lodged in the Wards of Court Office, if the Ward passes away, the obligation is upon the Committee to inform the Office of Wards of Court of the fact as soon as possible. After that, the Grant of Probate is extracted in the ordinary course and the assets distributed per the terms of the Wards Will.
If there is no Will, Letters of Administration are extracted and the assets of the Ward are distributed in accordance with the rules of intestacy, as set out in the Succession Act, 1965.
Once the Estate has resolved (or in parallel with same) a formal request must be made by the Committee to conclude the wardship proceedings. This is done by lodging a document, called a Statement of Facts, with the Office of Wards of Court who then obtain an Order from the High Court confirming the Wardship is at an end and relieving the Committee of their responsibilities.
What happens if a Ward of Court recovers?
While making a person a Ward of Court can seem as a very final option, should the Ward recover their capabilities (such as in cases of brain injury), the Ward can make an application to the High Court to be discharged from Wardship. This application can be made either by the Ward themselves or via their solicitor The application to be discharged from Wardship is based on the medical evidence provided to the High Court. On hearing the application, the Judge may direct that a further medical examination take place prior to discharging the Wardship.
O’Kelly Solicitors have the expertise and experience in relation to Wards of Court applications, Enduring Powers of Attorney and the issues that arise in relation to both. We give straightforward, practical advice that you can rely on and are here to help in making these difficult decisions.
So if you are an individual concerned about someone close to you, or if you wish to put your future care needs in order, we can provide expert legal advice on all aspects of of the process.
Please contact Mark O’Kelly, the principal of the Firm, in strictest confidence on 086 7889753 or via email to mark@okellysolicitors.ie. Our contact details are here.
If you want to know more on this topic, please see our blog post on the subject
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