The Gazette 1981

GAZETTE

SEPTEMBER 1981

£6,000 per annum income. When one considers that a substantial number of wardship cases now arise as a result of mental damage through road or other accidents, in which huge awards of damages are very common, it will be appreciated that even these figures may not be sufficiently realistic. The Section 68 admission procedure is so simple that it is possible to procure an Order making a person a Ward of Court within 4 weeks of the initial filing of the Petition in the Wards of Court Office of the High Court. With the substantial sums of money now in issue, the potential saving of time through the availability of the Section 68 procedure could be of the utmost value. In England and Wales and Scotland, the procedure in all cases has been simplified, with the bonus of an even simpler procedure in the case of assets under £2,000. Section 4 of the English Act of 1959 provides that such cases can be handled without even the formality of appointing a Receiver. Some Difficulties The title laid down for this paper was "The Legal Prob- lems of Ageing", but it might have been better expressed as the problems of the people looking after the legal affairs of those who are ageing. Medical science is keeping us alive for longer and it is increasingly the case that those who are unlucky enough to suffer in their advancing years from diminished mental capacity can live on in such a state for very many years. If they have sufficient assets to merit their being made Wards of Court, then those assets must be managed and applied in the most effective way possible, having regard to the circumstances of the Ward and to the circumstances of the economy — almost certainly inflationary. Under existing legislation, the assets of a Ward of Court can only be invested either in "Trustee Securities" — those prescribed by the Trustee (Authorised Investments) Act 1958 — or in investments permitted by the Trustee Act 1893. Authorised Trustee Securities comprise, basically, Government Stocks and the Stocks of the Bank of Ireland and Allied Irish Banks. The 1893 Act confers a limited power of investment in land or building or in the taking of mortgages on land or buildings. To make matters worse, it would seem to be the case that the Ward's assets cannot even be sold unless such sale is necessary to provide cash for the Ward's benefit. This effectively inhibits any investment policy, as there is no power, for example, to sell Stocks which are likely, or even certain, to depreciate in value. It may happen that the Ward has a family, for whom he is primarily responsible. He may even have the particular concern and responsibility of a physically or mentally impaired child of his own, for whom he would, but for his own failed condition, have continued to make provision. Our existing law does not specifically empower the President of the High Court to apply the assets of a Ward of Court for the benefit of the Ward's family, not even if a member of that family is in dire need of assistance and the Ward has adequate means to assist. In practice, the Court has, over the years, found certain ways of alleviating this problem, but the position remains far from clear and the Court's activities in this regard very limited. Another area of potential difficulty which, in fairness, the Victorian draftsmen could hardly have forseen, has

been created by the Succession Act of 1965. To suggest just one problem under this heading, Section 117 cf the Succession Act empowers a child of a deceased testator to apply to the Court where it may be the case that the deceased has made inadequate testamentary provision for that child. What, however, of the child who is under a mental disability, who is unaware of his rights and who fails to make the necessary application within the time limit laid down by the Succession Act? While the Succession Act provides for the service of notices informing spouses of their rights, there is no similar provision for children of a deceased testator. A child with mental disability, particularly in those sad and all-too-frequent cases where the person concerned has been abandoned by family, swept under some institutional carpet, could well be disadvantaged. And because I refer to a "child" in this example, I am not necessarily discussing a person of tender years; the child of the testator may be quite elderly and very much in need of whatever extra benefit from his deceased parent's estate which might have been gained by a Section 117 application. New legislation — When? In summarising, as I have, the legal problems of ageing, I have only touched on the difficulties inherent in managing the affairs of those who can no longer manage their own. Clearly, much could be done to alleviate these and other problems by enlightened legislation. Equally clearly, the President of the High Court and the Registrar of Wards of Court are as well aware of the difficulties and inadequacies as are the legal practitioners and others who have to do the best they can in the circumstances. Indeed, it is only right to record that, considering the difficulties that face them, the President and the Registrar of Wards of Court, in their desire to do what is best for Ward and family, achieve near miracles of adaptation and compromise, but there are definite limits to how far they can go. It is no secret that new legislation has been under discussion for a number of years, but there are, as yet, no rustlings to be heard from the grapevine as to when such legislation may see the light of day. I am by no means the first person to remark that there are, regrettably, no votes in such legislation, but I take this opportunity of suggesting to our legislature that, in terms of simple cost-effectiveness, quite apart from the better ordering of the affairs of those who are sufficiently unlucky as to be unable to order their own, it could well make considerable sense to put some parliamentary time and public effort into this vast national problem. • INCORPORATED LAW SOCIETY OF IRELAND DINNER DANCE BLACKHALL PLACE, DUBLIN 7 FRIDAY, 20th NOVEMBER, 1981 Dinner: 8.30 p.m.

Sub. £15.00

Dancing: 10.00 p.m. 2.00 a.m.

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