The Gazette 1981

SEPTEMBER 1981

GAZETTE

the Attorney becomes of unsound mind. It is, of course, a very frequent practice for elderly people to execute Powers of Attorney, appointing a member of the family or, perhaps, their solicitor to be their Attorney, but this procedure is primarily intended to deal with the person who becomes incapable of managing his affairs by reason of physical, rather than mental, disability. In very many cases, the Attorney continues to function perfectly satisfactorily, notwithstanding that the donor of the Power of Attorney has become senile and, in the majority of cases, nothing ever turns on it. It is not unusual, however, for circumstances to arise in which the Attorney feels that matters have become sufficiently serious, or sufficiently large, that he can no longer act as Attorney, in which case the only course is to apply to have the patient made a Ward of Court — which brings us back to the 1871 Act. Procedures under the 1871 Act The 1871 Act creates two main procedures under which Orders may be made to take people into Wardship. The first, and the more lengthy, arises through the operation of Sections 14 and 15 of the Act; the simple procedure is laid down by Section 68. To describe the simpler procedure first, it should be mentioned at the outset that this procedure has only a limited financial jurisdiction. The section, as enacted in 1871, provided that where it was established to the satisfaction of the Lord Chancellor (now the President of the High Court) that any person is of unsound mind and incapable of managing his affairs and that his property does not exceed £2,000 in value, or that the income thereof does not exceed £100 per annum, the Lord Chancellor may, without directing any enquiry, make such order as he may consider expedient for the purpose of rendering the property of such person, or the income thereof, available for his maintenance or benefit. The figures of £2,000 assets and £100 per annum income were increased by the operation of the Courts Act, 1971, to the princely sums of £5,000 worth of capital assets and to £300 annual income. These figures still apply. If the prospective Ward of Court has assets in excess of £5,000, or income in excess of £300 per annum, then Sections 14 and 15 of the Act come into play. These Sections create a two-tiered system, highly complex and expensive, in which the first stage is an enquiry in open Court as to the sanity of the prospective Ward — which may actually have to take place before a Jury — the second stage being a further enquiry as to the property involved. In this context, it is worth remarking that in every case in which the prospective Ward happens, for any reason, to reside outside the physical jurisdiction of our Courts, the enquiry as to sanity must be conducted before a Jury. To put this into context, I need only offer the example of a patient, who may perhaps have been the certified inmate of a mental hospital abroad, owning or inheriting property in this country — a not infrequent occurrence! In Northern Ireland, where the same Act of 1871 still applies, the financial jurisdiction of Section 68 has progressively been increased. Their most recent increase was effected by a Patients' Affairs Order which became operative on the 23rd March this year and which increased the figures within which the simplified Section 68 procedure may be availed of to £60,000 assets and

individuals with mental retardation as appropriate subjects for guardianship or conservatorship. Five states also list individuals with developmental disabilities, or with autism, cerebral palsy or epilepsy. In most other states, inclusion of persons with developmental disabilities depends on the interpretation of such terms as "mental or physical disability", "mental or physical weakness", or "mentally deficient". It is worth mentioning, in passing, that in America the subject is taken so seriously that the President maintains a Panel or Committee on Mental Retardation and the American Bar Association has established a Commission on the Mentally Disabled which has initiated what is described as the "Developmental Disabilities State Legislative Project", with the objective of safe-guarding the rights of developmentally disabled citizens and of assuring them equal access to quality services, consistent with the philosophy and programme of certain national and federal enactments, through the identification, development and dissemination of model state legislation and reports that review existing state legislation in this area. In the Republic of Ireland, the latest figures available indicate that we have approximately 1,500 adult Wards of Court. This is, in relation to the known extent of mental disability, a very small figure. While the small size of the figure may, to an extent, reflect the socially desirable fact that not all persons suffering from some mental disability actually require to be made Wards of Court, it is, I would suggest, more likely to be a reflection, partly, of the fact that a considerable number of mentally disabled persons do not happen to have sufficient — or any — assets requiring that they be made Wards of Court but, mainly, of the fact that it is widely known throughout the community that existing Wards of Court procedures are so expensive and cumbersome that almost any alternative is to be preferred. I have little doubt that the affairs of a great many mentally disabled people are handled informally by their close families, without anyone being any the wiser. While, pragmatically, this may, in many cases, be no bad thing, the potential abuses are obvious. Looking after the Mentally Disabled Just what do we do to safeguard as efficiently and as humanely as possible the property and person of the individual who, through age, either has become or seems likely to become incapable of handling his or her affairs? The short and perhaps facetious answer to that question may seem to be to avoid, at all costs, the procedures available under the 1871 Act and in certain circumstances this may, indeed, be both sensible and possible. If the onset of senility or other mental collapse can be foreseen, it may well be possible to induce the person concerned to set up a trust to hold his assets and to administer his affairs, thus transferring this own property into safe and independent hands while he is still able. If the mental deterioration continues, it will ultimately be necessary only to care for the person himself. An even less formal, though less satisfactory alternative, may be to procure a Power of Attorney from the person concerned. This, however, has a distinct disadvantage; strictly speaking, Powers of Attorney are revoked by operation of law if the person who appointed

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