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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
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FRIDAY, 20th NOVEMBER, 1981
Dinner: 8.30 p.m.
Sub. £15.00
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