The High Court has ruled that it had no jurisdiction to create a trust to manage Francis Dolan Junior’s funds outside the wardship process, answering a preliminary question in the negative.
Mr Justice Garrett Sheehan delivered the judgment on 29 July 2008. The issue had been sent back to the High Court after a Supreme Court decision in July 2007. It asked whether the High Court could establish a trust or other arrangement to protect the funds before a judge or jury determined whether Dolan was of unsound mind and unable to manage his person and property, where he and his family objected to wardship.
The judgment says Dolan, born in 1982, has cerebral palsy and spastic quadriplegia with moderate mental handicap, and requires full-time care. His parents have provided that care and wished to continue. They considered wardship intrusive and objected to their son being declared of unsound mind under the Lunacy Regulation (Ireland) Act 1871.
Dolan had received IR£3 million in damages for injuries suffered at birth. IR£200,000 had been paid out, while IR£2.8 million was held on deposit with the Accountant General. His family had asked the court to consider a trust to manage the money. The judgment records that the President of the High Court refused that request in 2003, saying he had no authority to create one.
The respondent’s counsel argued that the High Court’s inherent jurisdiction, earlier decisions and reported trust arrangements supported the proposed scheme. The Attorney General and the Office of the General Solicitor for Minors and Wards of Court opposed that position. They argued, among other points, that creating such a trust would establish a parallel jurisdiction and exceed the court’s powers.
Justice Sheehan found that the examples relied on by the respondent did not establish that the High Court had created a trust in comparable circumstances. He said the statutory basis for excluding some people with small estates from wardship did not involve a court-created trust. He also concluded that the earlier cases cited by the respondent did not establish the claimed power.
The judge held that the court had no inherent or other jurisdiction to create the proposed trust scheme. The ruling decided only that preliminary jurisdiction question. It did not determine whether Dolan lacked capacity, whether he should be made a Ward of Court, or the constitutional challenges to the 1871 Act raised in separate proceedings.