Tuesday 27 September 2016

Parents of profoundly disabled man lose battle to set up a trust to protect a IR£3m settlement made to him 14 years ago

Tim Healy

Published 13/11/2015 | 17:26

The parents objected to wardship, arguing that process ultimately involved having their son, following medical assessment, declared an “idiot, lunatic or of unsound mind” and would lead to his rights being invested in committees.
The parents objected to wardship, arguing that process ultimately involved having their son, following medical assessment, declared an “idiot, lunatic or of unsound mind” and would lead to his rights being invested in committees.

THE parents of a profoundly disabled man have lost their long legal battle seeking that the courts set up a trust to protect a IR£3m settlement made to him 14 years ago.

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His parents wanted a trust rather than him being a ward of court.  As a ward, his welfare and funds are looked after by a court-appointed committee of one or more people due to his mental incapacity.

The Supreme Court ruled the courts have no power to set up such a trust as sought.

It also noted the State has said the parents concerns will be addressed in forthcoming legislation on assisted decision making.

The parents objected to wardship, arguing that process ultimately involved having their son, following medical assessment, declared an “idiot, lunatic or of unsound mind” and would lead to his rights being invested in committees.

Their son, now aged in his early thirties, has cerebral palsy. He secured IR£3m under a 2001 settlement of his case for alleged negligence in the circumstances of his birth at Mount Carmel Hospital, Dublin. The settlement was made without admission of liability.

Prior to any application to have their son made a ward of court, the parents asked the courts should instead direct the establishment of a trust scheme.

That involved several court hearings and decisions but ultimately led to a High Court decision, on a core preliminary issue, the High Court had no jurisdiction to set up such a scheme.

The parents appealed but, in legal submissions last year, the Attorney General argued their appeal was unnecessary given the publication of the Assisted Decision Making Capacity Bill 2013.

The Attorney asked that the appeal be adjourned in the expectation the Bill would be enacted by the end of 2014.

Enactment by that date did not happen but, when the appeal opened for hearing last month, the General Solicitor and Attorney General said the Bill had just been passed by the Dail and was due to go to Seanad Committee Stage later this month.

In those circumstances, it was argued, the Bill would render the appeal pointless it should be adjourned to January 2016.

Lawyers for the man opposed an adjournment and the court proceeded to hear the appeal.

In its unanimous decision, the three judge Supreme Court dismissed the appeal and unanimously ruled the courts have no jurisdiction to set up such a trust as sought by the parents.

She rejected arguments that, alongside the wardship jurisdiction expressly vested by statute in the High Court, it has a separate  inherent jurisdiction to enable and regulate the protection of property of a person who may lack mental capacity.

There was no such jurisdiction outside the wardship process whereby the court could sanction a trust to manage the assets of a person believed incapable of managing their own property affairs, she said.

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