Updates on the Discharge Process and Wardship
11 May 2023
As you would be aware we are now in the new regime with respect to capacity. In relation to wardship as you will be also aware existing wards are to be discharged out of wardship and into the Decision Making Representative regime (the “DMR regime”). There is a three-year period to allow the transition from wardship to DMR.
The process to discharge a ward is by means of a Notice of Motion. However, the detail of the procedure is not entirely clear. I raised this issue with the Wards of Court office recently who kindly directed me to a practice direction of the High Court setting out the bones of the procedure. The Wards of Court office have indicated that the rules have yet to be published but are due to be published shortly. I attach the practice direction here.
In addition, I appeared (remotely) at the High Court recently to make a wardship application for a committee client (this related to an application that commenced prior to the introduction of the new Capacity Act 2015). During the course of the wardship, I mentioned to the Court that the intention would be to make an application to discharge the ward (recently made) to the DMR regime. The court noted that those hearings would be taking place in the autumn. In addition, the court noted that there is a three-year period to make the application. Therefore it will be up to each committee to decide whether or not to commence the process now or wait a while longer before discharging.
In a subsequent email exchange, one of the registrars of the Wards of Court noted to me that the discharge hearings are due to be set for October. So it appears that they are somewhat out at the moment.
As mentioned above, further clarity on the next steps will be made once the High Court rules on the discharge process have been issued. I understand these will be published soon and once they are I will issue information through this service.
Here is the relevant practice direction
In the meantime, if you have any queries on probate, will drafting, capacity or tax issues, please do not hesitate to contact me through the query service on this site. Colm Kelly