A new system intended to restore vulnerable adults’ autonomy would be damaged if the courts had to start forcing people to switch from the previous “wardship” regime, the President of the High Court has warned.
Mr Justice David Barniville said a “very low” number of voluntary discharge applications had been made on behalf of “wards of courts” in the nearly two years since the introduction of a replacement decision-making system for adults lacking mental capacity.
The low uptake comes despite encouragement, supports and a statutory deadline of April 26th next year when all adults concerned must have exited court wardship, he said.
“Personally, I would be against forcing people to come out of wardship. If you have to force people to restore their autonomy [...] it is pretty incongruous,” he said.
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Less than a quarter of wards’ representatives have applied for them to exit wardship, Courts Service figures show. Just 468 applications have been brought to discharge wards of court, leaving 1,469 wards for whom no discharge request has been initiated.
As of the end of last month, 110 wards had completed the discharge process. To date, all the applications have been brought voluntarily.
The Assisted Decision-Making (Capacity) Act, introduced in 2023, will end the Victorian adult wardship system by April next year, having repealed the Lunacy Regulation (Ireland) Act of 1871, which the Department of Equality has labelled “outdated”.
The new system provides a tiered decision-making offering, such as a co-decision maker, for people who need help deciding about their welfare, property and other affairs.
The High Court could, until April 2023, step in as decision-maker in a person’s life where it was satisfied, based on medical evidence, the person was of “unsound mind” and “incapable of managing their own affairs”. People with dementia, acquired brain injuries or intellectual disabilities are among those in wardship.
The court would appoint a person – typically a relative, but occasionally an independent solicitor – as a ward’s “committee”, tasked with assisting with the ward’s affairs, including finances, in conjunction with the court’s office.
Speaking to The Irish Times, Mr Justice Barniville said wards’ committees have reported feeling generally happy with the wards system and “reluctant to change”.
Committees are mainly lay people, often elderly, who “see this as quite an intimidating process to go through”, he said. The High Court’s wards office is “brilliant”, has known these individuals for years and has managed wards’ money through a good value and safe court investment system, he said.
Wards’ relatives are “very reluctant to take on the burden of taking someone out of wardship and then to take on the burden of looking after them”, he said, saying they had a “big concern” about managing the wards’ money themselves or via alternative investment schemes.
The judge said there had been a “very active information campaign” about the legal changes. Legal aid is available for discharge applications.
The process of switching from wardship to assisted decision-making required assessment of an individuals’ mental capacity, a process that involved consent, he said.
“If this was done without consent, you can see resistance ... I personally think that would be very damaging to the whole process if we are forced to go down that road,” Mr Justice Barniville said.
He said the courts wanted to encourage rather than compel these applications.
“If you have to start forcing people you are into very difficult territory ... This would seem to run completely counter to what the legislation is intended to achieve,” he said.
In response to queries, a spokeswoman for the Department of Equality said there were “no plans to alter or amend” the statutory deadline.
She said the discharge process was being “closely monitored” and the department was engaging with a wide range of stakeholders on the matter.
“Significant supports are available to assist wards and their committees to commence and complete the discharge from wardship process and to enter into an appropriate alternative decision support arrangement,” she said.
The commencement of the Act represented a “landmark” legal reform in Ireland, she said.
“The Act places individuals at the centre of decisions that affect them and provides for the necessary supports to enable persons with capacity difficulties to retain control over their own affairs,” the spokeswoman said.
