When a person is no longer in a position to manage their own property and affairs (property includes houses, bank accounts, prize bonds, credit unions accounts, etc.) , an application can be made to the High Court for a person to be made a Ward of Court to protect this person’s property.
The Ward of Court procedure provides a solution where the assets are in a person’s sole name and they are no longer able to manage their affairs. A relative can apply to the High Court and the person’s property can be used for their benefit. The Office of the Ward of Court is responsible for the day to day administration of the Wardship process.
A person can be made a Ward of Court because:
a) of mental incapacity, or
b) where a minor requires court protection for a particular reason.
The majority applications are made where a person lacks the mental capacity to look after their own welfare and affairs.
How is a Ward of Courtship application made?
An application is made to the High Court by a person (generally a family member or next of kin) to hold an inquiry as to whether a person is incapable of managing their assets. The person who makes the application is known as the Petitioner. The Petitioner completes a written submission to the High Court called an “Originating Petition for Inquiry”.
The Originating Petition for Inquiry contains the following information:
- The proposed Ward’s name, age, date of birth, occupation and address;
- If the proposed Ward has been residing in a nursing home, the length of time they have been residing there and the address of the nursing home should also be inserted;
- The doctor’s name and address who the proposed Ward is under the care of, should also be stated;
- The date from when the proposed Ward was of unsound mind and incapable of managing their person and property;
- The application should make reference to the fact that the proposed Ward has been examined by two registered medical practitioners, whose affidavits setting out the proposed Ward’s present mental condition must be filed with the application before the Court;
- The names, addresses and description of the next-of-kin;
- The total estimated value of the assets of the proposed Ward;
- Estimated income;
- Estimated debts, as far as the Petitioner is aware;
- The Petitioner’s address and relationship to the proposed Ward;
- An undertaking by the Petitioner to discharge the costs and expenses of any visitation of the Respondent, or otherwise incident to the inquiry the High Court Judge will need to make, in case the petition is dismissed or not proceeded with.
The application is accompanied by a doctors report(s) and Affidavits. Two separate doctors should examine the proposed Ward, usually the Ward’s GP and another doctor to determine whether in their opinion the person is capable of managing their own affairs.
The application to make a person a Ward of Court must be served on the proposed person. A person can object to being made a Ward of Court. When an application is made, the High Court decides whether the person is capable of managing their assets. This decision is made on the basis of medical evidence available to the Court and the Court feels that it is necessary for the individual welfare and protection of their assets that they are made a Ward of Court.
For a person to be made a Ward of Court, the High Court must be satisfied that the person is incapable of managing his or her own assets and affairs.
In this regard, the High Court can decide:
- The High Court can decide that the person is capable of managing their assets, and accordingly the application will be rejected; or
- The High Court can decide that an enquiry is required. The proposed Ward is then examined by a doctor appointed by Court. If the High Court decides that the person should be made a Ward of Court, a committee is then appointed to deal with their affairs.
What is a Committee?
A Committee in a Ward of Court application means a person(s) to whom the affairs of a ward of court are committed. The Committee is appointed by the President of the High Court to act on behalf of the Ward. However, the Committee’s powers come from the Court. As a consequence, it only has the power to do what the Court authorises it to do (e.g. sell shares, sell property, rent land and gather in rent, insure the property, look after the day to day needs of the Ward, etc.). At all times the Ward of Courts Office must be kept informed. The person(s) appointed to the Committee is usually a family member, but not always.
The appointed Committee acts on behalf of the Ward and gives directions to bring the Ward’s assets under the control of the Court and make them available for his or her maintenance and benefit.
What happens to a person’s property when they are made a Ward of Court?
When a person is made a Ward of Court, the person’s property such as house, land, bank accounts, etc., come under the protection and control of the Court. Depending on what funds are available to meet the expenses of the Ward, such as nursing home fees for example, the Court may permit the Committee to sell property or shares. Where a property or shares are sold the money is lodged in the Court and used for the Ward’s benefit. If possible, the property can be rented and the rent used for the Ward’s benefit. In relation to banks and credit unions accounts: these accounts are usually closed and the proceeds lodged in the Ward of Courts Office. When payments are required to discharge nursing home fees, etc., in the majority of cases nursing home maintenance accounts are paid directly by the Wards of Court Office from the funds lodged in Court or the Ward of Court Office can put the Committee in funds to pay the nursing home costs. If the Committee wishes to be put in funds, they would need to open a committee account entitled – ‘X’ and ‘Y’ as Joint Committees of the Wards Name (A Ward of Court).
The purpose at all times is to protect the assets of the Ward.
What is Mental Incapacity
To be made a Ward of Court, the Court must be satisfied that the person is incapable of managing his or her own affairs due to mental incapacity.
How do I object to being made a Ward of Court?
If a person wants to object, they must sign an objection notice and have it witnessed by a solicitor. If a person objects, there must be a hearing. The hearing is before the High Court and there may be a jury if the Judge so decides. You do not have a right to a jury, this is a decision of the Judge.
What happens if the Ward is now able to manage their assets?
An application can be made by the person made a Ward of Court to be discharged from Wardship. It must be made to the Registrar of Wards of Court in writing by the Ward or by a solicitor acting on their behalf. The application should be based on medical evidence to the effect that the Ward is now capable of managing their own affairs.
What happens when a Ward dies?
When a Ward dies, the Committee should inform the Ward of Courts Office. The assets of the Ward, on receipt of a Grant of Probate or Administration is distributed according to the Ward’s will or under the Rules of Intestacy where there is no Will .
Is it possible to avoid being made a Ward of Court?
Yes, you can attend your solicitor when you are capable of managing your own affairs and execute an Enduring Power of Attorney.