Bill to replace wards of court system will reflect rights of disabled people

 

A BILL TO replace the wards of court system, where the courts administer the affairs of people who are unable to do so themselves, will be published in the coming months.

Wards of court arise in cases where people suffer from some form of mental or psychiatric disability that inhibits them in making legally-binding decisions.

The Mental Capacity Bill will outline plans for an alternative system for dealing with the affairs of vulnerable people, which will offer them assistance in making decisions and protect them from exploitation.

The focus will be on their capacity to make decisions, depending on the nature of the decision, rather than the existing wardship system under which a person who is made a ward of court has all decision-making taken out of his or her hands.

Being made a ward of court effectively deprived the adult of many personal rights, including the right to marry, the right to travel without the consent of the court, as well as to make any financial decisions.

The new Bill is likely to include a new Office of Public Guardian, to which responsibility for vulnerable adults would be transferred from the High Court.

The Bill will implement the recommendations of a report by the Law Reform Commission on "Vulnerable Adults and the Law" published over two years ago.

The type of people concerned are those suffering from brain injury as a result of an accident or disease, elderly people suffering from a degenerative condition like Alzheimer's disease, people unable to communicate, or people suffering from mental illness, and with assets to be administered.

In the past a person in these circumstances was often made a ward of court. The president of the High Court through the Wards of Court Office, then administered their affairs and made decisions on their behalf, including those concerning medical treatment as well as financial decisions.

The Law Reform Commission's report found that "there are aspects of wardship procedure which may not reflect the emphasis on adequate procedural safeguards designed to protect human rights" under the European Convention on Human Rights. It recommended the law on the capacity of people with mental disabilities be changed in line with contemporary thinking on human rights and disability.

It recommended that any capacity legislation should conform to procedural fairness, that the person be represented and assisted to make his or her own views known, and that the decision on his or her capacity be subject to periodic review.

The commission stressed that the fact that an adult has a partial or even complete lack of decision-making capacity does not entail a loss of constitutional rights, including the right to privacy and the right to be treated with dignity.

In the light of this thinking, the commission said new legislation should be enabling rather than restrictive. It should be clear, transparent and accessible and should put in place an understanding of legal capacity that would apply in all situations.

It should contain a clear definition of capacity, which focused on an adult's cognitive ability to understand the nature and consequences of a decision. The commission recommended that an adult should not be regarded as unable to make a decision merely because they made a decision "which would ordinarily be regarded as imprudent".

If a person was found, under the legislation, to lack decision-making capacity, this should be subject to ongoing review.

Referring to contracts, the commission said it should be presumed the adult was capable of entering into the contract, unless it was proved otherwise. Where a contract is entered into and disputed later, the matter should be referred to the public guardian.