| | | | Brain Injury Solicitors | | |  | ' I want to thank you sincerely for your dedication and compassion over the last two/three years in dealing with my son’s case' |  |
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| | | Wards of Court
In the event of a settlement or award being made in favour of a person who has suffered a brain injury, then the question will fall to be considered as to whether this person has sufficient capacity to be capable of managing his or her affairs. In the event that this capacity is absent the Court will refer the matter to the Wards of Court list where a Judge of the High Court will have to consider as to whether to make the individual a Ward of Court. | | | | | | This process can cause great anxiety for members of the brain injured person’s family. Visitors to the site are referred to the information booklet produced by the Office of the Wards of Court. | | |
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| | CLICK ON THE ATTACHED - Wards of Court booklet .pdf. | | | In the pipeline, there is an alternative piece of legislation contemplated. This is The Mental Capacity Bill. The Minister has described this Bill as being about adults who are vulnerable in the sense that they may lack some or all of the capacity to make important decisions for themselves. The Bill makes provisions for such decisions to be made, where possible, by the individual themselves or by a carer or ultimately the Court on their behalf. The Bill, should it become law, will modernise the law on capacity contained in the most part in legislation dating back to 1871. The terminology and conceptual framework of that legislation harks back to a time when our undertaking of mental capacity was very different and the treatment of the vulnerable was more harsh and a recognition of fundamental rights was narrower.
The legislation will contain a set of important principals. These will guide persons making a decision on behalf of an adult who lacks capacity. The principals will also guide a Court when it has to intervene in certain cases.
Importantly, the legislation, when enacted, will establish that there is a presumption of capacity. No Court intervention, for example, will take place unless it is necessary, having regard to the needs and individual circumstances of the person. The person will not be treated as a person unable to make a decision unless all practical steps to help that person make a decision have been taken without success. Any act or decision must be made in a way which is in the least restrictive of a person’s right and freedom and must be in that person’s best interest.
Capacity will, in future, be understood in terms of an adult’s cognitive ability to understand the nature and consequences of a decision in the context of available decisions at the time of the decision. That definition of capacity will be time specific and will allow for the possibility that the loss of capacity may be temporary or permanent.
This functional approach to capacity will hopefully allow the person to have capacity in one matter but not in another. This will represent a fundamental change to the current law, under which an all or nothing approach is taken to capacity. This unfortunately does not operate in the best interests of the person who might for some purposes at least be regarded as having capacity.
The legislation will provide that a person is entitled in the first instance to be supported or assisted in their decision making. The person must, on this basis, insofar as reasonably practicable, be permitted and encourage to participate or to improve their ability to participate, as fully as possible in any act done for them and any decision affecting them.
Court intervention will apply only if it is not possible to support a person in exercising capacity or making a decision. The legislation will provide for the Court, or a personal guardian appointed by the Court, to act as the substitute decision maker on behalf of the person who lacks capacity. Where substituted decision making is necessary, the Court will make once off decisions, but where a number of on-going decisions are required, a personal guardian will be appointed by the Court for that purpose.
The legislation will create a new legal role of ‘personal guardian’. Where a person has been found to lack capacity, a personal guardian can be appointed by the High Court or the Circuit Court to make decisions concerning his or her personal welfare or property and affairs. The Court will always have the option of not appointing a personal guardian and making the decision or decisions itself where the matter is urgent and it is expedient for it to do so.
Personal guardians will have the power to make decisions in respect of the personal welfare and the property and affairs of a person. Personal welfare matters will be those, for example, such as the person’s living arrangements, health care and rehabilitation. Property matters will be those matters such as the control and management of the person’s property, legal and financial business. The power conferred on a personal guardian will be limited in scope and duration to that required in the particular circumstances and a personal guardian may have their appointment revoked if they act in a manner which contravenes their authority or if they have not acted in the person’s best interests.
The legislation, if enacted, will provide a framework for informal decision making for carers so that normal every day decisions concerning the care of persons who lack capacity, or whom a carer reasonably believes has a lack of capacity, can be made without reference to the Courts.
On grounds of efficiency, effectively and accessibility, as well as costs, the Government has decided that the power to make decisions on capacity should be retained by the Courts. Concurrent jurisdiction will be conferred on the Circuit Court and the High Court. The Courts will be given powers to access the expertise of a range of professionals, medical and non-medical, to assist in the determination of capacity. It is expected that the Circuit Court, rather than the High Court, will be widely available at less cost to applicants and will provide any necessary accessibility of service. The new title of the High Court and Circuit Court when exercising jurisdiction will be the Court of Care and Protection.
Typically matters will come to Court where they concern the property or affairs of an incapacitated person. Where the matter does come to Court, the anticipated outcome is that the Court will appoint a personal guardian to make the decision or decisions in question. The Court itself will only make once off decisions where the matter is urgent or is otherwise expedient for it to do so.
The Bill provides that certain issues are confined to the jurisdiction of the High Court. The High Court will be the only authority that can make a decision concerning non-therapeutic sterilisation, withdrawal of artificial life sustaining treatment or organ donation.
A new Office of Public Guardian will be established under the legislation. The primary function of the office will be to supervise and monitor the exercise of duties and responsibilities by Court appointed personal guardians and donees of Enduring Powers of Attorney.
Over time, the functions and operations of a new office will replace all of the functions and operations of the existing Wards of Court Office save with the exception of minors.
The Office of Public Guardian will establish and maintain a register of Court appointed personal guardians, Enduring Powers of Attorney and declarations, decisions and orders made by the Court. The Office will supervise donees and personal guardians, receive reports from donees and personal guardians and deal with representations including complaints on the exercise of duties and responsibilities by a donee or personal guardian. It will also act as a guardian of last resort where there is no person willing or able to act as a personal guardian for an incapacitated person.
The supervisory function will be carried out by general or special visitors who can be directed by the Office of Public Guardian to visit a donee, a donor, a personal guardian or a person for whom a personal guardian is appointed. The special visitor, who will be a registered medical practitioner or the general visitor, will have powers to access records relating to the person who lacks capacity.
The public guardian will also prepare and issue codes of practice. These will be prepared in close consultation with expert groups. They will provide guidance for persons assessing capacity, for persons acting as informal decision makers in connection with the care and treatment of others, for donees of Enduring Power of Attorney and for Court appointed personal guardians.
In the event that this Bill is indeed enacted it will remain to be seen precisely the impact on persons who lack the mental capacity to manage their own affairs in respect of any large awards or settlements.
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