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GAZETTE
SEPTEMBER 1981
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
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
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