WARDS OF COURT (OTHER THAN MINORS)
‘the Act’ means the Lunacy Regulation (Ireland) Act, 1871;
‘the Judge’ means the President of the High Court, or the Judge of the High Court by whom the jurisdiction transferred to the High Court by the Courts of Justice Act, 1936, section 9(1), is for the time being exercisable;
‘the Registrar’ means the Registrar of Wards of Court;
‘the Office’ means the Office of Wards of Court;
‘The General Solicitor’ means the General Solicitor for minors and wards of Court;
‘visitor’ means a visitor in lunacy whether a medical, legal or other visitor;
‘respondent’ means a person alleged to be of unsound mind and incapable of managing his person or property, in respect of whom a petition for inquiry has been presented, or a visitors’ report has been directed to stand and be proceeded on as a petition, but who has not been made a ward and includes, where the context so admits, a person in respect of whom an order is sought under section 68, section 70 or section 103 of the Act;
‘ward’ means a person who has been declared to be of unsound mind and incapable of managing his person or property, and includes where the context so admits, a person in respect of whom or whose property and order has been made under section 68 or section 70 of the Act, and a temporary ward;
‘temporary ward’ means a person of weak mind and temporarily incapable of managing his affairs in respect of whom an order has been made under section 103 of the Act;
‘next-of-kin,’ when used in relation to a respondent or ward who is living, shall mean and include the person or persons who, if such respondent or ward were then dead intestate, would be entitled to his estate under the Succession Act, 1965.
The forms respectively referred to are the forms set out in Appendix K which shall be used where applicable.
2. (1) Where any proceedings are initiated under the Act or other jurisdiction in lunacy of the court in respect of any person alleged to be of unsound mind, or of weak mind, such person shall, in the title of such proceedings and in all forms used therein, be referred to and described as ‘the respondent’ unless and until he shall become a ward.
(2) Where any person has been declared to be of unsound mind and incapable of managing his person or property, or where under the provisions of section 68 or section 70 of the Act, the Judge has made an order for the purpose of rendering his property or income available for his maintenance or benefit or for carrying on his trade or business, he shall thereafter be referred to as a ‘ward of court’ in all subsequent proceedings relating to him, and shall be so described in the title of such proceedings and in all forms used therein.
(3) Where, under the provisions of section 103 of the Act the Judge has appointed a guardian of the person and property or of the property of a person of weak mind, such person shall thereafter be referred to as a ‘temporary ward of court’ in all subsequent proceedings relating to him, and be so described in the title of such proceedings and in all forms used therein.
3. (1) All originating applications to the Judge for the exercise by him of all or any of the powers by the Act or otherwise conferred upon or possessed by him in respect of the persons or property of persons of weak or unsound mind shall, save where otherwise provided by the Act or by this Order, be made by petition to be signed by the petitioner and attested by his solicitor.
(2) All applications to the Judge in an existing matter shall, subject to sub-rule (3) hereof, be made by motion, supported where necessary by affidavit.
and such other applications as the Registrar may direct, may be made by filing an unsworn statement and application, but the Registrar may require the applicant to submit further evidence, on affidavit or otherwise, in support of the application. After consideration of the statement and application and further evidence (if any) the Registrar shall either (i) prepare the minutes of the order which he considers ought to be made and submit the application to the Judge in chambers for his order or directions, or (ii) decline to do so, and so inform the applicant, who may thereupon bring the application before the Judge by motion.
II. Proceedings by petition for inquiry, or on report directed to stand as a petition
(b) the names, religion, descriptions and residences of his next-of-kin and of the person or persons in whose house or under whose care he is for the time being, or has been for the preceding 12 months, residing (as far as the petitioner can ascertain);
(2) the petition shall also contain an undertaking by the petitioner that he will, in case the petition is dismissed or not proceeded with, pay the costs or expenses of any visitation of the respondent or otherwise incident to the inquiry before the court.
6. When a petition or report shall be submitted to the Judge as aforesaid he may make an order for inquiry and direct whether notice of the petition or report and of the order for inquiry shall be served upon any person in addition to the respondent; and if so upon whom.
8. The notice to a respondent of the presentation of the petition and order for inquiry shall be by service upon him of an attested copy of the petition with a notice thereon endorsed, signed by the petitioner or his solicitor in the Form No 4.
9. Notice to a respondent of a report and order under section 12 (or section 22) of the Act shall be in the Form No 5.
III. Where the inquiry is before a jury
10. The notice by section 13 of the Act authorised to be given by a respondent demanding a jury may be in the Form No 6.
11. The notice demanding a jury shall be transmitted by the respondent or his solicitor to the Registrar within seven days of the service upon the respondent of the notice referred to in rule 7.
12. Upon receipt of any such notice the Registrar shall forthwith file the same and set down the petition or report as the case may be for the Judge’s directions. If the Judge shall so require the Registrar shall, by letter addressed to the respondent or his solicitor, require the respondent to attend before the Judge for personal examination. Notice in the Form No. 7 that the petition or report has been set down for directions and (if such be the case) that the respondent is required to attend personally before the Judge, shall forthwith be served by the petitioner or his solicitor, or the solicitor having carriage of the report upon the respondent’s attesting solicitor. Where the Judge requires the attendance of the respondent the person with whom he is residing shall produce him for personal examination unless a registered medical practitioner shall certify that he is physically unable to attend.
13. Where the Judge directs that the inquiry shall be had and be sped before a jury he may give further directions as to all or any of the matters following, viz., as to the issue of a commission de lunatico inquirendo; as to the time, venue and mode of the inquiry; as to the form of issues to be submitted to the jury; and as to the mode of procedure and general conduct of the inquiry.
14. Where the inquiry is held under a commission de lunatico inquirendo then, subject to any special directions that may be given by the Judge, it shall be conducted in accordance with the practice and procedure heretofore observed upon the holding of an inquiry under such a commission.
15. Where the inquiry is held otherwise than under such a commission, then, subject to any special directions that may be given by the Judge, the inquiry shall be conducted according to the practice and procedure usual upon the trial of an issue of fact by a Judge with a jury. Upon the conclusion of the inquiry the registrar of the court before which the inquiry has been held shall certify the result thereof and transmit his certificate, together with the issue paper and all exhibits and records, to the Registrar of Wards of Court.
16. Where the Judge, notwithstanding the fact that the respondent has not demanded a jury, deems it necessary or expedient that the inquiry should be had before a jury, he shall by order so direct, and thereupon the provisions of rules 13, 14 and 15 shall apply.
IV. Where the inquiry is without a jury
18. Where the respondent, without demanding a jury, wishes to object to any inquiry being had, or to any declaration being made that he is of unsound mind and incapable of managing his person or his property, he shall transmit to the Registrar, within seven days of the service upon him of the notice referred to in rule 7, a notice in the Form No 6.
19. Where the respondent does not demand a jury or where, though he has demanded a jury, the Judge is satisfied by personal examination that he is not mentally competent to form and express a wish for an inquiry before a jury, the Registrar, upon production of attested copies of the affidavits of the due service of the notice of the petition or report, and of the order for inquiry thereon, shall set down the inquiry for hearing by the Judge as soon as practicable after the date of service of the notice upon the last person served therewith.
V. Proceedings under sections 68 and 70 of the Act
(b) the names, religion and residences of his next-of-kin and of the person or persons in whose house or under whose care he is for the time being, or has been for the preceding 12 months, residing (as far as can be ascertained by the petitioner);
(3) The petition shall be in the Form No 8.
22. A petition in pursuance of section 70 of the Act shall be in the Form No 9 and shall, in addition to stating the matters mentioned in rule 21, contain a statement of the verdict or finding as to the insanity of the respondent and as to his being still in confinement. It shall be supported by an affidavit or certificate of a registered medical practitioner as to his continued insanity.
23. The notice to the respondent of the application for an order in pursuance of either of the said sections shall be by service on him personally of an attested copy of the petition with a notice in the Form No 10 indorsed thereon signed by the petitioner or his solicitor.
24. The respondent may by notice object to any order being made upon the petition. Such notice shall be signed by him and shall be transmitted by him or his solicitor to the Registrar within seven days of the service upon him of the notice referred to in rule 23. Such notice may be in the Form No 14.
25. If it shall appear to the Registrar that the evidence in support of a petition under section 68 of the Act is inconclusive or otherwise unsatisfactory he may obtain the report of one of the medical visitors for submission to the Judge.
26. Where the respondent shall by notice as aforesaid object to an order being made or where the prayer of the petition shall be opposed by any person having had notice of the same it shall be the duty of the Registrar in case he shall not have already obtained a report of the medical visitor to direct one of the medical visitors to visit the respondent and to report as under section 11 of the Act.
27. As soon as practicable after the expiration of seven days from the service of the notice referred to in rule 23 the Registrar shall submit to the Judge the petition and evidence in support thereof, the affidavit of service referred to in rule 95, the notice of objection (if any) and the medical visitor’s report (if any).
28. The Judge may, on consideration of the petition and other documents, make an order thereon, without the attendance of counsel, solicitor, or parties or direct that the petition be set down for hearing or refer the matter to the Registrar to make any particular inquiry respecting any matter to which the petition relates.
29. Where the Judge on the hearing of the petition declares it to be established to his satisfaction that the respondent is of unsound mind and incapable of managing his affairs he may direct the Registrar to inquire and report as to the following matters, viz.: the nature of the ward’s insanity; his property; the amount of his income; what should be allowed for his maintenance, and out of what fund; to whom such allowance should be paid; who should be the committee of his person, and his property; and any other relevant matters; and for the purpose of inquiring as to the ward’s state of mind the Registrar may, if he considers it necessary, direct one of the medical visitors to visit the ward and report as to his condition.
30. Where it appears to the Registrar that the property of a person alleged to be of unsound mind does not exceed €6,348.69 in value, or that the annual income thereof does not exceed €380.92, and that it is desirable that an order should be made in pursuance of section 68 of the Act in regard thereto, then the following provisions shall apply:
(c) if it shall appear from the report that the respondent is of unsound mind and incapable of managing his affairs, the Registrar shall give carriage of the proceedings to the General Solicitor or to such other solicitor as he may think fit, and direct such solicitor to serve notice upon the respondent in the Form No 11 of the said application and report;
(d) the respondent may object to any order being made upon the application by notice in the Form No 14 which shall be signed by him and shall be transmitted to the Registrar by him or his solicitor within seven days of the service on him of the notice referred to in paragraph (c);
(e) as soon as practicable after the expiration of seven days from the service of the notice referred to in paragraph (c), the Registrar shall submit to the Judge the medical visitor’s report, such evidence as may be available as regards the respondent, his property and affairs, the affidavit of service upon him of the said notice and the notice of objection (if any);
(f) the Judge may, on consideration of the said documents, make an order in pursuance of the said section without the attendance of counsel, solicitor or parties or direct that the application be set down for hearing or refer the matter to the Registrar to make any particular inquiry.
VI. Proceedings under section 103 of the Act
31. Applications in pursuance of section 103 of the Act shall be made by petition and shall be signed and verified by the petitioner and be attested by a solicitor. The petition shall be accompanied by a fair copy certified by the solicitor as a true copy. The petition shall be in the Form No 12 and shall state—
(d) the nature and amount of his property, with the net amount or net estimated value of the corpus thereof and the clear net income thereof applicable to his maintenance and ordinary expenditure; or in case the same cannot be given precisely, the nearest estimate of approximation thereto which the petitioner can give;
(e) the nature of the illness or injury whereby the respondent is rendered temporarily incapable of managing his affairs and requires the protection of the court and the probable duration of such illness, or of the consequences of such injury;
32. The petition shall contain an undertaking on the part of the petitioner that in case the petition is dismissed or not proceeded with, he will pay the costs or expenses of any visitation of the respondent by any visitor prior or incident to the inquiry before the Judge.
33. The petition shall be accompanied by two certificates each signed by a registered medical practitioner to the effect that the respondent is of weak mind and temporarily incapable of managing his affairs. Each certificate shall state the nature of, and the reason for such incapacity and the probable duration thereof.
34. The petition shall be accompanied also by an undertaking in writing signed by the person whom it is proposed to appoint as guardian, to act as such guardian and to execute a bond in such amount as the Registrar shall think fit for the due performance of his duty as such guardian.
35. Notice shall be given to the respondent of the presentation of the petition by the service upon him of an attested copy of the petition with a notice thereon indorsed, signed by the petitioner or his solicitor, in the Form No 13.
36. The respondent may by notice object to the making of any order appointing a guardian. Such notice must be signed by him, attested by his solicitor, and transmitted to the Registrar within four days of the visit of the medical visitor as provided in rule 37. The notice of objection may be in the Form No 14.
37 a. The Registrar shall immediately upon the receipt of the petition and attested copy thereof, together with the affidavit of service of the notice of the petition, transmit the copy to one of the visitors with directions immediately to visit the respondent and to ascertain whether he is a proper subject for the application of the provisions of the Act as to persons of weak mind and temporarily incapable of managing their affairs, and the extent to which he is capable of understanding the nature and effect of the proceedings taken for the protection of his property, and generally to ascertain the state of his mind. The visitor shall explain to the respondent that if he wishes to object to the proceedings he should give notice within four days to the Registrar of his objection. The visitor shall immediately report to the Registrar his opinion of the matters aforesaid and those stated in the petition, as well as his opinion as to whether the respondent’s incapacity (if any) is of a temporary nature and if so, as to its probable duration.
38. (1) The Registrar shall, after the expiration of six clear days from the receipt of the visitor’s report, submit for the Judge’s consideration the petition, the notice thereof served upon the respondent and the affidavit of service, the medical certificates, the notice of objection (if any), the visitor’s report, and any evidence that may be available as to the respondent or his affairs.
(2) The Judge may, without the attendance of counsel, solicitors or parties, make such order under the provisions of section 103 of the Act as he may consider expedient or direct the petition to be set down for hearing or refer the matter to the Registrar for inquiry.
(3) Where the petition is set down for hearing the Registrar shall by ordinary prepaid post, give notice to the parties or their solicitors of the day and hour of the hearing. The hearing shall take place in camera.
39. When an order shall have been made under section 103 of the Act appointing a guardian of the respondent’s person and property, the Registrar shall direct one of the medical visitors to visit the respondent within one month previous to the expiration of the order, or at such times and in such manner as the Judge shall have directed, and to report to the Judge as to his physical and mental condition. Upon receipt of every such report, the Registrar shall file the same and submit it to the Judge for his consideration.
VII. Proceedings after primary order made on petition for inquiry or upon report directed to stand as a petition
40. Every order declaring a person to be of unsound mind and incapable of managing his person or property shall, unless the Judge shall otherwise direct, contain directions that the petitioner, or such other person as the Judge in his discretion may entrust with the carriage of the proceedings, shall lodge and file in the Office, within a time to be specified in the order, a statement of facts upon oath, and proposals for the management of the ward’s person and property setting forth the following particulars:
(g) in what manner and at what expense, and by whom and where he has been maintained; what should be allowed for his past maintenance; whether anything, and if so, what is due, and to whom in respect thereof, and to whom and out of what fund it should be paid;
41. (1) Upon consideration of the statement of facts and proposals and, for the purpose of fully informing the Judge as to the facts of the matter and as to the results of any inquiries he may have made, the Registrar shall prepare a draft report for submission to the Judge.
(2) The Registrar may give notice of proceedings in the Office to settle the report to such parties as have had notice of the originating petition, or whose attendance at the hearing thereof was allowed by the Judge, or upon such other persons as he may in the course of the proceedings think fit. Save as aforesaid no other persons shall be entitled to attend before the Registrar on the settling of the report.
43. Any party attending before the Registrar on the settling of the report may object to the Registrar’s draft by submitting in writing a list of his objections. The Registrar shall rule upon each objection and allow or disallow it. Where he allows an objection he shall review his draft accordingly. Where an objection is disallowed the objector may submit to the Registrar a notice in writing that he insists on such objection. Any objection not so insisted on shall be considered as abandoned.
44. Where no objection to the draft report is made, or where objections having been made, they have been ruled upon to the satisfaction of the objectors or are not insisted on, the Registrar upon final consideration of the statement of facts and proposals, of such matters as may have been brought before him by the parties, and of any other relevant matters, shall submit his report to the Judge with such consequential directions as he may think it expedient to suggest.
45. Where an objector, other than the party having carriage of the proceedings, insists upon an objection, the party having carriage shall apply for confirmation of the report. Where the party having carriage insists upon an objection, the Registrar may give carriage of the proceedings to the General Solicitor and direct him to apply for confirmation.
46. No person shall, except by special leave of the Judge, present a petition against the confirmation of a report. An objector who insists on an objection may submit the same for consideration by the Judge on the hearing of the application for confirmation.
(d) where the report has been submitted to the Judge by the Registrar in pursuance of sub-rule (2), but no fiat thereon has been given.
(2) In other cases, the Registrar shall submit his report to the Judge with the directions proposed to be given or made in consequence thereof, and the Judge’s fiat thereon shall have the effect of an order in the terms of such directions subject to such variation (if any) therein as he may make.
(3) In any case the Registrar may dispense with the report referred to in this rule and may submit to the Judge the minutes of the order requisite to give effect to proposals for the management of the ward’s person and property and thereupon the Judge may, without the attendance of counsel, solicitors or parties make an order in the terms of such minutes with or without variation.
VIII. The Registrar
49. The Registrar may, from time to time and as to him shall seem expedient, make any inquiry and receive and consider any proposal, as to any matter concerning the person, property, or affairs of any respondent or ward or his maintenance, or the maintenance of any member of his family, and report thereon to the Judge. He may, in particular, do all or any of the following things: ascertain whether there are any debts due by the ward which should not be disputed and consider whether any of them ought to be paid, and if so to whom and out of what property or fund; consider proposals for the adjustment and settlement of any such undisputed debt and for the compromise and settlement of any disputed debt, claim or demand against the ward’s estate; inquire and consider whether any dealings with the respondent’s or ward’s property, whether before or after the commencement of proceedings, should be examined; make a separate or special report or certificate, or state specially any circumstance relating to the subject matter of a report as he may think fit.
50. The Registrar shall, in accordance with any general or special direction to be given by the Judge, visit periodically every mental hospital and institution in which a ward is resident, and as occasion may require, every ward in private care.
51. (1) The Registrar may require the committee of the person or estate of any ward to give him such information as he may possess relating to the ward as the Registrar may consider necessary, and may if he so thinks fit, require him to attend before him for that purpose.
(2) If the Registrar considers that there is undue delay in, or he is otherwise dissatisfied with the conduct of, any proceedings or matter, he may require the party having the conduct of such proceedings or matter, or his solicitor or any other person appearing to be answerable therefor, to attend before him to explain the delay or other conduct with which he is dissatisfied, and may thereupon make or give such ruling or direction as he may consider proper, and in particular may, if he thinks fit, appoint the General Solicitor to act as solicitor in such proceedings or matter in the place of any solicitor there to fore acting. For the purpose of this rule, the Registrar may direct the General Solicitor to issue such summons, notice of motion or other document as may be necessary and to conduct the proceedings thereunder and carry out such other directions as may be given.
52. Where the Registrar is of the opinion that any person is of unsound or weak mind and incapable of managing his person, property or affairs, and considers it expedient so to do in such person’s interest, he may direct the General Solicitor or such other person as he shall think fit to initiate appropriate proceedings under the Act in respect of such person.
53. The Registrar shall give notice of any proceeding before him to the committee of the ward and may give notice to any of the ward’s next-of-kin or to any person whose attendance he considers desirable in the ward’s interests. Save by special leave of the Registrar no other person shall be entitled to attend the proceedings.
54. The Registrar may direct that several parties who have appeared by different solicitors shall thenceforward appear by the same solicitor or that several parties who have appeared by the same solicitor shall thenceforward appear by different solicitors. Any person who appears contrary to such direction shall, unless otherwise ordered, do so at his own cost.
57. Where the Judge considers it expedient he may appoint two or more persons to be committees of the estate or of the person; and may direct that on the death or discharge of any such person the custody and care of the estate or person, as the case may be shall continue to be exercised by the survivor or survivors. On the death or discharge of a sole committee or one of several committees in a matter where no such provision as aforesaid has been made the Registrar shall inquire and report to the Judge whether or not it is necessary or expedient that someone be appointed or replace the deceased or discharged committee and if so, who should be appointed.
58. Neither the proprietor nor the keeper nor the medical superintendent of the hospital or institution in which the ward shall, for the time being reside nor any person residing with or in the employment of any such proprietor, keeper or medical superintendent shall be appointed committee of the ward’s person or estate either solely or jointly with any other person.
59. The Registrar may if he thinks fit require the committee of the person to make to him periodically or otherwise a return in duplicate giving particulars as to the ward’s residence, physical and mental condition, maintenance, comfort and such other matters in relation to the ward as he may wish to be informed of.
61. Save where the Judge otherwise directs, every committee of the estate shall give security in such amount as the Registrar may, having regard to the amount and condition of the ward’s property and income, direct, and the Registrar may from time to time direct, that the amount of such security be increased or diminished.
(2) Such security shall be perfected before the Registrar forthwith upon the appointment of such person as committee and such person shall not act as committee until his security has been perfected. All bonds shall be filed and dealt with in the Office.
63. The committee of the estate shall account annually or at such longer or shorter periods as the Registrar may determine. He shall lodge his accounts verified by affidavit in the Office and attend there, at or within such times as the Registrar shall determine, to have his accounts taken and passed. On each such occasion, and also whenever the Registrar so requires, he shall satisfy the Registrar that his sureties are solvent and within the jurisdiction.
64. Where the Registrar is of opinion that an account of the committee of the estate is unsatisfactory, or that the ward’s affairs require special investigation or that there is any other matter or question which should be dealt with by order of the Judge, he shall specially report to the Judge thereon.
66. Every committee of the estate, unless otherwise authorised by the Judge, shall lodge forthwith all moneys received by him on account of the estate to the credit of a separate account to be kept in a bank for such estate; and the bank passbook or copy of the account shall be lodged in the Office with each annual or other account lodged by such committee. The committee’s account shall state the dates upon which such moneys were received by him during the period covered by the account.
67. Where the committee of the estate makes default in bringing in his account or in having the same passed or in lodging in court any sum directed to be lodged, the Registrar may disallow his remuneration, if any, and his costs, and may direct that he pay interest at the statutory rate for the time being for judgments upon any such sum as aforesaid for the period during which the same appears to have been improperly retained or allowed to remain uninvested.
68. The Registrar shall, on or before the 1st April in each year, require the committee of the estate of each ward to make, within a specified period, a return in duplicate in the Form No 16. If the Registrar is of opinion that a more complete return can be obtained from the receiver (if any) in the matter he shall require the same from such receiver. The committee or receiver shall thereupon make such return within such time specified; any neglect to do so shall be taken into account when his costs are in question.
X. Guardians and receivers
71. The provisions of rules 60 to 68 relating to the committee of the estate shall mutatis mutandis apply to receivers and to guardians appointed under section 103 of the Act.
72. No person shall be appointed a receiver unless independent of all the solicitors concerned in the matter; nor shall any practising barrister, or solicitor, or agent or person employed as clerk or otherwise by a solicitor, be appointed a receiver without the special leave of the Judge.
73. No receiver in any matter shall directly or indirectly employ as his solicitor in relation to his receivership or to the ward’s estate, the solicitor for the committee of the ward’s person or estate, nor the solicitor for any person interested in the matter nor the partner, town agent, clerk or apprentice of any such solicitor.
74. Every receiver appointed over the property of a ward shall be subject to the general rules regulating the appointment, accounts, and control of receivers, except where the same are inconsistent with this Order or as the Judge shall otherwise direct.
75. The guardian of every temporary ward shall, in accordance with section 103 of the Act, file in the Office a monthly account of all moneys or other property of the ward by him received, sold, conveyed, assigned or otherwise disposed of, setting out the mode in which the same, or the proceeds thereof, have been by him applied; and also a statement of the moneys or other property of the ward then in his possession, power or control; and every such account shall be accompanied by a statement, to be signed by such guardian, of the then physical and mental condition of the ward and the probable duration of his incapacity.
76. Every account to be filed by a guardian in the Office under rule 75 shall be verified by his affidavit and shall be taken by the Registrar.
77. Where, under the provisions of rule 64 (as applied to guardians), the Registrar reports specially to the Judge any matter arising upon a guardian’s account, or in relation to the person or property of a temporary ward, such matter shall be considered and disposed of by the Judge in camera; and the Registrar shall give notice by post of the day and hour of such consideration to the solicitors who shall have been named in the petition, and to such other solicitors as shall have been permitted to appear in the matter. Such notices shall be sent by post to their registered places of business.
78. Every guardian and receiver shall be subject to the control of the Judge and shall have and exercise in relation to the ward’s estate only such powers as are expressly conferred in the order of appointment.
79. In any case in which it appears to the Registrar to be proper that the remuneration of any receiver should be fixed as a percentage of the income collected by him, the Registrar may allow to such receiver such percentage thereof at such rate as he shall determine, In any other case the receiver’s remuneration shall be fixed at such figure or on such basis as the Registrar, or on appeal from him, the Judge, shall think fit.
XI. Leases, sales and mortgages
80. Where it is proposed to make or renew a lease or under-lease of any property of a ward, or of any property in which he is interested as limited owner or otherwise, or to exercise any power of leasing vested in him, the following provisions shall apply:
(a) if the proposed lease or under-lease is for a term of not more than 21 years the application for leave to make the same may be made ex parte to the Registrar, grounded, where necessary, upon a proposal to take the same, signed by the proposed lessee, and upon an affidavit showing that it is for the benefit of the ward and just and reasonable that such lease or under-lease should be made. If the Registrar is satisfied that it is for the ward’s benefit and just and reasonable, he may authorise the committee of the estate to make the same accordingly;
(b) if the proposed lease or under-lease is for a term exceeding 21 years, or is one which requires the exercise on his behalf of any power of leasing or other power vested in the ward, the application for leave to make the same or to exercise such power shall be made ex parte to the Registrar in the first instance grounded upon a proposal to take the lease or under-lease, signed by the proposed lessee, and upon affidavit showing that it is for the benefit of the ward and just and reasonable that the lease or under-lease should be made or the power exercised. The Registrar, if satisfied that the proposal is one proper to be submitted to the Judge, shall certify his opinion as to the matters aforesaid and direct the application to be made by motion to the Judge on notice to such persons (if any) as the Registrar may direct. The motion to the Judge shall be grounded upon the proposal and affidavit as aforesaid and the Registrar’s certificate. The Judge, if satisfied that the lease or under-lease should be made or the power exercised, may direct the committee of the estate to make or exercise the same accordingly;
(c) any such application as aforesaid shall be made by the committee of the estate except in special circumstances when, by leave of the Registrar or the Judge, it may be made by any other person interested;
(d) where any such lease or under-lease has been directed as aforesaid, the Registrar shall settle and approve the form of the same to be granted to the intended lessee at the rent, for the period, and under and subject to the covenants and conditions directed; and the committee of the estate shall, in the name and on behalf of the ward, execute the lease or under-lease, as the case may be, when so settled and approved, upon the Registrar signifying in writing his approval thereof, and upon the intended lessee executing a counterpart thereof; and the Registrar shall certify accordingly.
81. Where it is proposed to sell any real or leasehold property of the ward, or any property in which he is interested as limited owner or otherwise, or to exercise on his behalf any power of sale vested in him, the following provisions shall (unless the Judge shall otherwise direct) apply:
(a) the application for leave to sell may be made ex parte to the Registrar in the first instance, grounded upon affidavit showing how it is for the benefit of the ward, and just and reasonable that a sale should be had;
(b) the Registrar, if satisfied that the application is one proper to be submitted to the Judge, shall certify his opinion as to the matters aforesaid, and direct the application to be made by motion to the Judge on notice to such persons (if any) as the Registrar may direct;
(c) the motion to the Judge shall be grounded upon affidavit as aforesaid and the Registrar’s certificate, and the Judge, if satisfied that the property should be sold, may direct the committee of the estate to sell the same accordingly;
(d) any such application as aforesaid shall be made by the committee of the estate, except in special circumstances when, by leave of the Registrar or the Judge, it may be made by any other person interested;
(f) all contracts for sale shall be expressed to be subject to the conditions set out in Part 2 of the Form No 17, and when the sale is by public auction the conditions of sale, as settled by the Registrar, shall include all the conditions set out in Parts 1 and 2 of the said Form;
(g) upon a sale being had the purchaser shall, at or within such time as the Registrar shall fix, pay the purchase money into the Bank in the name and with the privity of the Accountant to the credit of the matter, and to such particular account (if any) as the Registrar may appoint, and upon the same being paid, the purchaser shall be let into possession of the property sold, and the receipt of the rents and profits thereof, as from such day as the Registrar shall appoint;
(h) the Registrar shall, on due notice to all parties interested, settle and approve the draft conveyance or assignment as the case may be; and the committee of the estate shall, in the name and on behalf of the ward, execute the same, when so settled and approved, upon the Registrar signifying in writing his approval thereof, and the Registrar shall certify accordingly.
82. Where it is proposed to mortgage any real or leasehold property of the ward the provisions of rule 81(a), (b) and (c) shall apply mutatis mutandis. Where it is ordered that the committee of the estate may raise, by mortgage of any of the ward’s property, money for any purpose, the Registrar shall settle and approve a proper mortgage; and the committee, upon payment to him, or as may be directed, of the amount to be raised, shall, in the name and on behalf of the ward, execute the mortgage, when so settled and approved, upon the Registrar signifying in writing his approval thereof, and shall do all such other acts as shall be necessary to give effect to the same; and the Registrar shall certify accordingly.
83. The Registrar may direct a visitor to visit any respondent or ward periodically or at such other time or times as he may consider necessary to examine him or inquire as to his physical and mental condition, his care, treatment, maintenance, comfort and such other matters as he shall think fit.
84. The Registrar may investigate any matter reported by a visitor, and, if necessary, may require a committee to attend and explain the same; and may in any event give such directions as may be necessary or expedient.
85. A visitor’s report shall be considered as being strictly confidential and as being intended solely for the information of the Judge and such persons as he shall specially appoint. No such report shall, except by leave of the Judge, be in any way made available for use or inspection by any other person.
86. (1) Visitors shall be remunerated by fees to be fixed by the Registrar or, on appeal in any particular case, by the Judge. Any such fee shall be paid, upon the certificate of the Registrar, by the committee of the estate in the matter in which it was incurred; and such committee shall be allowed credit for such payment on passing his account.
(2) Where a petition praying an inquiry as to the soundness or unsoundness of mind of any person is dismissed or not proceeded with, the petitioner shall, unless it is otherwise ordered by the Judge, pay the expenses of any visitation of the respondent in relation thereto.
XIII. Death or recovery of the ward
87. Any person, in whose custody, possession, power or control the same may be, may, upon oath as directed by the Registrar, deposit for safe custody in the Office any will, codicil or testamentary paper of the ward. If, on request by the Registrar such person fails to make such deposit he may be ordered to do so by the Judge.
88. Upon being satisfied of the death of a ward the Registrar may, without order, open and read any paper writing purporting or alleged to be the ward’s will, for the purpose of ascertaining who is therein nominated executor thereof, and also whether or not there is any and what direction therein contained concerning his funeral or place of interment, and then deliver the same to the probate officer to the intent that it may be dealt with according to law, and shall certify the death and the opening and delivering out of the paper writing accordingly.
89. Upon the death of any ward, the committee of his estate shall, save as hereinafter provided, lodge in the Office a statement of facts setting forth the date of his death, whether he had executed a will or died intestate, what are the claims and demands against his estate for costs, maintenance or otherwise, who are his heirs or next-of-kin, who are the executors and trustees named in his will and who are the devisees of his real estate, If the committee himself be dead, then the statement of facts shall be lodged by the solicitor for such late committee, or, failing him by the personal representative of such late committee, or, failing him by the original petitioner in the matter or such other person as the Registrar may authorise in that behalf, In any case in which the ward dies before the appointment of any committee of his estate, the statement of facts shall be lodged by the original petitioner or such other person as the Registrar may authorise in that behalf, In any case in which the ward dies before the appointment of any committee of his estate, the statement of facts shall be lodged by the original petitioner or such other person as the Registrar may authorise in that behalf, In any case the Registrar may, if he thinks fit to do so, dispense with the lodgement of any statement of facts.
90. Upon a statement of facts being lodged in pursuance of rule 89, the Registrar shall make a report for the submission to the Judge of the fact and date of the ward’s death, whether he had executed a will or died intestate, what are the claims and demands against his estate for costs, maintenance and otherwise, who are interested in or entitled to his real or personal estate as heirs-at-law, next-of-kin, or as executors, trustees, or devisees named in the will, and what proceedings (if any) the Registrar recommends for the purpose of winding up the matter. Such report shall be settled by the Registrar in the presence of and on notice to such person or persons as he shall direct, In any case the Registrar may dispense with such report.
91. (1) The committee of the estate shall, or any other party interested in the confirmation of the report may, apply to the Judge for confirmation of the same; and upon such application the Judge may confirm the report with or without variation and make such further or other order as he may consider just.
(2) Where the Registrar has dispensed with a statement of facts or report, he may submit to the Judge the minutes of the order requisite to terminate the matter with such evidence (if any) in support thereof as may be necessary, and thereupon the Judge may, without the attendance of counsel, solicitor or parties, make an order in the terms of such minutes with or without variation.
92. Where no representation has been raised to the estate of a ward who has died intestate, and whose total assets appear to the Judge not to exceed €25,000 in value, any funds to which he was or his personal representatives would be entitled may, by direction of the Judge, be paid, transferred or delivered to the person who would be entitled to obtain letters of administration of his estate under the Succession Act, 1965, upon such person making and filing with the Registrar a declaration in the Form 18.
[SI 488/12; SI 20/89]
93. Where a ward, upon recovery, wishes to be remitted to the management of his own affairs, he may apply informally to the Judge to be so remitted. The Judge, if satisfied by such evidence as he considers sufficient, that the ward is capable of managing his person, property and affairs generally, may make such order as he shall think the circumstances require and dismiss the matter out of lunacy.
94. (1) Service of notice of presentation of an originating petition as required by rules 8, 23 and 35 shall be effected by personal service by delivering to and leaving with the respondent a true copy of the petition, with the notice thereon indorsed, and at the same time showing him the attested copy indorsed with the appropriate notice. The person serving such notice shall, at the same time, read to the respondent the contents of the petition served on him or her and explain its nature and implications. Save as is hereinafter provided, service of any other document upon a respondent or ward shall be effected by delivering it to the respondent personally.
95. In every case, an affidavit of service of such notice or document shall be filed with the Registrar stating particularly the time, place, and mode of service, and include an averment in respect of the efforts made by the deponent to explain the nature and implications of the papers served on the respondent and set out any response of the respondent. Such affidavit shall be in the Form No 15.
97. Subject to the provisions of this Order, solicitors may charge and be allowed for professional services in proceedings in relation to wards of court, such fees as they would be allowed for professional services of a similar character in relation to proceedings generally in the High Court.
98. Subject to any order that the Judge may make in the matter, the Registrar may direct that any bill of costs in any proceeding under the Act be referred for adjudication to the Legal Costs Adjudicator who shall duly adjudicate and certify the amount due upon the same as if he had been so directed by order of the Judge.
99. (1) The Registrar may himself measure a sum for costs where the Judge so directs, or where the parties concerned so consent, or where he considers that the amount which would be allowed on taxation would not exceed €1,300.
(2) Where the Registrar measures costs in pursuance of this rule, the Accountant may pay the amount so measured notwithstanding that the order under which such costs are payable directs payment upon production of a certificate of taxation thereof.
100. The costs of the General Solicitor in relation to any matter in which he has acted as committee, receiver or guardian, or any costs in relation to any proceedings which he has taken in accordance with the directions of the Judge or the Registrar shall be paid by such parties or out of such funds as the Judge or the Registrar may direct.
101. No committee, receiver or guardian shall, unless the Judge or the Registrar shall otherwise direct, be allowed at the expense of the ward’s estate, any costs or expenses for any work proper to be done by him personally and not requiring professional assistance.
102. Save where otherwise provided by the Act or by this Order, the evidence in any proceedings or matter under the Act or this Order shall be given by affidavit; but in any case the Judge and in proceedings before him the Registrar may direct the attendance for cross-examination of any person who has made an affidavit and may order that the whole or any part of the evidence be given and taken viva voce.
103. Clerical mistakes in judgments or orders of the Judge, or errors arising therein from any accidental slip or omission, may at any time, with the approval of the Judge, be corrected by the Registrar. Clerical mistakes in orders, rulings or directions made or given by the Registrar, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Registrar without referring the matter to the Judge.