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GAZETTE
SEPTEMBER 1981
The Legal Problems of Ageing
(Paper to the Incorporated Law Society Symposium "The Mentally Handicapped and the Law",
27 June, 1981).
by
Charles R. M. Meredith, Solicitor
S
O far as the application and operation of our law is
concerned, it matters little whether the mental
incapacity arises as a result of the passing of the years or
through any other reason. The only area of mental
incapacity which is separately recognised by our legal
system is that of extreme youth — persons under a
certain age being regarded as being incapable of
managing their own affairs.
Until about thirty years or so ago, our law so
recognised the distinction between the two principal
categories of mental disability that those under the age of
21 years were dealt with and described as "Minors",
whereas those suffering from mental disability arising
otherwise than simply through tender years were
described as "Persons of Unsound Mind". This
description was considered to be kinder than "Lunatics",
but increased social awareness, led, ultimately, to all
categories being described as "Wards of Court".
It may be of interest to record that the jurisdiciton of
the Courts over the affairs of persons incapable of looking
after themselves is of vast and authentic antiquity. The
roots of guardianship are embedded in both Roman and
English law. In the ancient Rome of Cicero's time, we are
told, extensive provisions existed under Roman law for
the protection of the property of mentally disabled people,
although no such provision was made for their persons.
Under English law, from which our own law derives,
the intervention of the Courts in the affairs of mentally
disabled people stems from the duty, long recognised, of
the monarch to look after the property of lunatics and
idiots, which duty rested upon feudal lords long before the
passing of the Statute "De Praerogativa Regis" in the
reign of Edward II.
The monarch customarily delegated his functions to his
Lord Chancellor and, gradually, to other Judges and thus
the term "Court" came into the picture. More recently,
the management of the legal and property affairs of
mentally disabled people and of those under the age of 21
years, has been regulated by a series of Statutes, the
principal of which now are the Guardianship of Infants
Act, 1964, which — as its name implies, deals only with
people under the age of 21 years, and the Lunacy
Regulation (Ireland) Act, 1871, — a piece of legislation
which may have been enlightened 110 years ago, but
which is by now limited in its scope, cumbersome, time
consuming and expensive to operate.
The Irish Position Contrasted
Under what, for want of a better expression, we must now
call "Irish" law — England and Wales, Northern Ireland
and Scotland having gone their separate and to a greater
or lesser extent, differing, ways — the concerns of
property and the person are considered separately;
responsibility for the property and for the person of
someone of unsound mind can be vested in separate
individuals although, in fact, the custom is for the one
individual to be appointed by the Court to care for the
property and the person of the Ward.
The name given to the individual in whom this
responsibility is vested is "Committee" — a misleading
name as, in ordinary usage, it implies a group of people
acting in concert, which is the exact opposite of what the
person actually is. The word "Guardian" is already
current in the case of minors and a valid argument could
be made that the same word should apply in the case of
people who are so mentally incapacitated that they need
somebody else to manage their affairs. In some
jurisdictions, the word "Conservator" is also used.
"Guardianship" is a legal relationship which authorises
one individual to become a substitute decision-maker for
another; what should concern us and our legislature is the
ordering of the conduct of that substitute decision-maker
so that, with the greatest ease and flexibility and with the
least expense, all necessary decisions can be taken and all
consequent actions carried out on behalf of the Ward.
Here we come to a very real difficulty which we, with
the benefit of 110 years hindsight, can see was
inadequately appreciated during the reign of the good
Queen Victoria. In her day, things seemed substantially
more black and white than they do today and, then, the
mentally disabled person was almost automatically
regarded as being so lunatic as to be incapable of doing
anything for himself. We have, over the years, come to
realise that there are extensive gradations of mental
incapacity. Many legal jurisdictions have applied
themselves to the difficult but socially necessary task of
differentiating between those gradations and of providing
a legal framework capable, first, of recognising what
gradation of incapacity is present in any case and,
second, of imposing only as much "substitute decision-
making" as that case requires.
In England and Wales, the Mental Health Act of 1959
has revolutionised their law, while Scotland had its own
enactment a year later.
In the United States of America, all 50 States have
their own Statutes and a recent statutory survey of the
whole body of legislation disclosed that while all
American jurisdictions provide statutorily for some form
of guardianship of adult persons and conservatorship of
their property, if they are not able to care for themselves
without assistance, the nature and extent of that provision
is by no means uniform.
For example, fourteen states specifically include
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