Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I move amendment No. 189:

In page 45, between lines 21 and 22, to insert the following:

"PART 5*

WARDS

Definitions — Part 5

33. In this Part—

"ward" means a relevant person in the wardship of a wardship court;

"wardship court" means the High Court or Circuit Court exercising its jurisdiction under this Part and, in relation to a ward, means that court which made the order by virtue of which the ward is a ward.".

I have been advised that Part 5 needs to be expanded to set out transitional arrangements for the abolition of wardship for persons under 18. The proposed amendments set out these arrangements. As they involve significant re-ordering of this Part, I consider it more appropriate to propose the deletion of the existing Part 5 and its substitution with these provisions. No change is proposed in amendment No. 189 to section 33 as set out in the Bill as published.

Amendment No. 190 proposes to amend section 35(1) to clarify that a ward or a person with sufficient interest in the ward’s welfare can apply to the wardship court, that is the High Court or Circuit Court as appropriate, to have the ward’s capacity reviewed. This provision is to allow for applications to be made by wards and their families, with the court's consent, at any time following commencement of this Part. The proposed amendment to subsection (2) of that section clarifies that even if an application is not made by a ward or by another person on the ward’s behalf, the court will review the capacity of all wards over 18 within three years of the commencement of this Part.

Where an existing ward is still under 18 years, three years following the commencement of this Part, the court is being required to review that person’s capacity within six months of reaching 18. This is to ensure wardship is abolished for all persons over 18 years.

Amendment No. 191 sets out the proposed transitional arrangements to apply in respect of wards. They provide that where a wardship court finds that the ward no longer lacks capacity, he or she will be immediately discharged from wardship and have his or her property restored to him or her.

It is anticipated that some current wards will have some capacity difficulties which will require the appointment of a co-decision-maker to make decisions jointly with the former ward but that these wards will not require the more intensive support of a decision-making representative. It is important that the less intrusive option be available to the court. However, as co-decision-making is a voluntary process, rather than something which can be required by the court, the provisions in subsection (1)(b)(i) and (3) are designed to enable a court to advise the ward that he or she has the capacity to enter a co-decision-making agreement. They provide that once a co-decision-making agreement has been registered, the ward’s property can be returned to the former ward.

Many existing wards will not have the capacity either to be discharged from wardship immediately or to enter a co-decision-making agreement. Provision is made for the appointment of a decision-making representative where the ward is declared by the court to lack capacity, even if a co-decision-maker were available to him or her. The provisions allow for the ward’s property to be returned to him or her once a decision-making representative has been appointed. Once a decision-making representative has been appointed, the provisions of Part 4 and the additional safeguards just agreed to in respect of decision-making representatives will apply to former wards as to other persons lacking capacity for whom decisions are made by a decision-making representative.

Subsection (6) provides that the Lunacy Regulation (Ireland) Act 1871 will be repealed, with the proviso in subsection (7) that neither its repeal nor these provisions will affect the validity of any court order in force prior to commencement of this Part. The amendment is to ensure the system of wardship for adults provided by the 1871 Act is abolished.

Amendment No. 193 mirrors the existing section 36 of the Bill, other than the change of reference from the Public Guardian to the Director of the Decision Support Service. It provides that the director may be assigned functions by the court in respect of individual wards or a class of wards.

The proposed amendment No. 194 mirrors section 37 of the Bill except for the change of reference from the Public Guardian to the director. It provides that the court may assign the director's functions in respect of wards who are under 18 years at the time of commencement of the Bill.

The Bill sets out an ambitious timetable for abolition of the system of wardship that has been in place in Ireland since 1871. It proposes that the system be abolished within three years following commencement of the Bill. By then, every single ward over 18 years will have been reviewed by the court and either discharged from wardship or moved to the new support options. This will take time within the courts system.

Deputy Pádraig Mac Lochlainn seeks in his amendment No. 192 to have the process completed within six months of the Bill's commencement. That is completely unrealistic. There are some wards who are anxious to be discharged from wardship or who have family members or friends ready to act as co-decision-makers or decision-making representatives. They will be free to apply for reviews by the court as soon as the Bill has been commenced. However, there is a requirement to make arrangements to take over management of often large sums of money. They will want to be properly prepared before making the application. Six months would be much too early for these wards. They could end up being pressed into arrangements, particularly financial arrangements, that might not be to their benefit. For this reason, I cannot accept the amendment. I, therefore, ask the Deputy not to press it because our solution is sensible.

I notify the committee that I plan to bring forward amendments to Part 6 on Report Stage to align the provisions on enduring powers of attorney with those proposed for co-decision-making and decision-making representation and to change the jurisdiction from the High Court to the Circuit Court.