Parents of disabled man lose legal battle over settlement

The parents of a disabled man have lost their legal battle to have the courts set up a trust to protect a €3 million settlement made to him 14 years ago, rather than having him made a ward of court.

The Supreme Court ruled the courts have no power to set up a trust such as that sought by the man's parents.

It also noted that the State has said the parents’ concerns will be addressed in forthcoming legislation on assisted decision-making.

The parents objected to wardship, arguing that the process ultimately involved having their son, following medical assessment, declared an “idiot, lunatic or of unsound mind” and would lead to his rights being invested in committees.

Their son, now aged in his early 30s, has cerebral palsy.

He secured €3 million under a 2001 settlement of his case for alleged negligence in the circumstances of his birth at Mount Carmel Hospital, Dublin.

The settlement was made without admission of liability.

Prior to any application to have their son made a ward of court, the parents asked that the courts should instead direct the establishment of a trust scheme.

That request involved several court hearings and decisions but ultimately led to a High Court decision, on a core preliminary issue, that the High Court had no jurisdiction to set up such a scheme.

The parents appealed that decision, but in legal submissions last year, the Attorney General argued that their appeal was unnecessary given the publication of the Assisted Decision-Making Capacity Bill 2013.

The Attorney General asked that the appeal be adjourned in the expectation the Bill would be enacted by the end of 2014.

Enactment by that date did not happen.

However, when the appeal opened for hearing in the Supreme Court last month, Michael Cush SC, for the General Solicitor and Attorney General, said the Bill had just been passed by the Dáil and was due to go to Seanad committee stage later this month.

He also handed into the court a briefing document concerning the Bill, which indicated it would affect persons like the man at the centre of these proceedings.

In those circumstances, he argued, the Bill would render the appeal pointless and asked that it be adjourned to January 2016.

Lawyers for the man opposed an adjournment and the court proceeded to hear the appeal.

Unanimous judgment

In its unanimous judgment this week, the three-judge court dismissed the appeal and unanimously ruled the courts have no jurisdiction to set up such a trust as sought by the parents.

Giving the court's judgment, Ms Justice Mary Laffoy noted that the State had maintained that the parents' concerns will be addressed in the Assisted Decision-Making Capacity Bill 2013.

The High Court had noted the parents have a principled objection to wardship, which they find intrusive, she said.

The High Court also acknowledged that the parents are totally committed to their son’s well-being and that was “undoubtedly the case and is to be admired”, the judge said.

Ms Justice Mary Laffoy said the core issue in this appeal was whether the High Court, in circumstances which suggest the man is not capable of managing his own affairs, but where there has been no inquiry whether he is capable or not, has jurisdiction to sanction establishment of a trust scheme in relation to the assets acquired under his settlement.

She rejected arguments that, alongside the wardship jurisdiction expressly vested by statute in the High Court, it has a separate inherent jursidiction to enable and regulate the protection of property of a person who may lack mental capacity.

There was no such jurisdiction outside the wardship process whereby the court could sanction a trust to manage the assets of a person believed incapable of managing their own property affairs, the judge said.