A Brand-New Dawn Has at Last Arrived
An update on Assisted Decision-Making Replacing Wardship System
in Dublin & Ireland
Ireland has been operating a system of wardship around legal capacity issues that date back to the 1800s under a legal process set out under the Lunacy Regulation (Ireland) Act 1871, even a glance at the language used indicates how outdated this legislation was in line with modern norms.
The Assisted Decision-Making Capacity Act 2015 and the Decision Support Service finally come into operation today the 26th of April 2023 and it is an important and long-awaited development of the previous archaic wardship system.
This modern and innovative piece of legislation will radically update how all of us interact with the law and will make future legal planning the norm for all citizens. In the past solicitors have worked with clients regularly on Estate planning and had advised clients regularly on Enduring Powers of Attorney and the need to future plan. This new law will definitively enable legal life planning for all, including those with varying degrees of legal and medical capacity.
All existing Enduring Powers of Attorney will remain valid, and clients should have no concerns in this regard. The new legislation has a new framework for new Enduring Powers of Attorney being created, however.
From yesterday, the 25th of April 2023, the Wards of Courts office has ceased accepting wardship applications. The new applications relating to persons requiring Court assistance will be operated via a Circuit Court scheme rather than the High Court, and the Wards of Courts Office will now commence the three-year review and discharge of all adult wards of Courts.
For those currently in wardship, all adults’ wards will be discharged. The former ward will now be referred to as the “relevant person”, and they will transition to one of the three new Decision Support Arrangements.
The Three New Decision Support Arrangements:
A Decision-Making Assistant
A Co-Decision Making Assistant
A Decision-Making Representative.
The new three-tiered system of assisted decision-making replaces the wardship system and provides a framework based on the will and preference of the decision-maker. It has a focus on person-centred planning that brings Irish law in line with the requirements of the United Nations Convention on the Rights of People with Disabilities (UNCPRD), and the Assisted Decision Making Capacity Act 2015 replaces substituted decision-making with a progressive and empowering rights-based approach. It intends to maximise autonomy for persons who require support to make decisions about their personal welfare, property, and financial and legal affairs.
Both partners of Carmody Moran Solicitors LLP have significant experience in the area of mental health law, capacity, and wardship, and can guide Committees and wards through the changes and discharge from wardship Court applications. Niamh Moran is a chairperson of the Mental Health Commission’s Panel of Legal Representatives. Prior to this role, Niamh also advocated before Mental Health Tribunals and was the solicitor in the case of PMcG and the Clinical Director of the Mater Hospital before Mr. Justice Peart which centred around the rights of the person notwithstanding their lack of legal capacity.
Anthony Carmody is a solicitor on the Mental Health Commission’s Panel of Legal Representatives, he has brought numerous legal cases and Article 40 applications under the Constitution relating to mental health law, before the High Court, Court of Appeal, and the Supreme Court including the important decision of I.F. Anthony is an expert solicitor in capacity law and mental health law seasoned advocate, his practice specialisms include probate disputes, family law and catastrophic and personal injury litigation. Frequently the area of mental health capacity overlaps with other areas of litigation. Anthony has also acted in numerous wardship cases and as a Guardian ad Litem for proposed Wards of Court.
Both Anthony and Niamh have an approachable style which combined with their significant experience means they are regularly sought out by colleagues and clients to represent them on their behalf with utmost confidence and professionalism and clients are referred to them by other legal professionals and medical professionals in this evolving area of legal practice.
The Codes of Practice for the new legislation were just finalised and published yesterday, 25th April 2023, and further blogs will cover frequently asked questions as this area of legal practice advances. For assistance now in relation to transitioning from the Wards of Courts system to the new Assisted Decision Making Capacity Act, 2015, enquiries regarding the new Circuit Court applications that replace wardship and the law of capacity, and enquiries regarding the new format Powers of Attorney, Assisted Decision Making Arrangements, please do get in touch with Carmody Moran Solicitors by email [email protected] or telephone 018272888 for assistance from our expert legal team.
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Anthony Carmody is a qualified solicitor with over 20 years’ experience in leading Dublin law firms. Anthony has specialised in the area of defending personal injury claims representing Insurance companies and Local Authorities, as well as undertaking claimant cases.