Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I thank the Deputy and I appreciate his comments. At this stage people will know that we have gone probably wider on this Bill than on any other legislation. There were certain pieces where we could simply not get over that legal hurdle but I assure the Deputy that we will take another look.

Amendment No. 161 proposes the deletion of the provisions of section 26(1) as the definition of property and affairs, and it has been moved to section 2 in order to make clear that it applies to any decisions relating to property and affairs under the Bill, not just to decisions made by decision-making representatives. No changes are proposed to the existing definition.

The proposed new section 26(1) is intended as an additional safeguard to prevent a decision-making representative from making gifts using the property or income of a person with capacity difficulties, unless specifically authorised to do so, by the court in the decision-making representation order. It is intended as a protection against potential financial abuse by the decision-making representative.

Amendment No. 163 is intended to tighten the provisions concerning gift giving by a decision-making representative on behalf of a person lacking capacity. It is intended as an additional safeguard to prevent a decision-making representative from considering himself or herself permitted to engage in extensive gift giving from the person's assets or income. The circumstances in which gift giving is authorised are limited to customary occasions in which gifts are given to persons related or connected to the person lacking capacity. The provision for gifts to be given to charity has been retained.

Amendment No. 164 is intended to ensure that account must be taken of the financial obligations of the person lacking capacity, as well as of that person's assets, when deciding whether it is appropriate to give gifts. If the person were to have extensive financial obligations, for instance, it would be important that such obligations would be honoured first before engaging in gift giving.

The aim of the proposed amendment No. 167 is to tighten the conditions in which a court can confer management of the property of a person lacking capacity on the director of the decision support service. As the aim is that decisions on that person's property and assets would be made by a person who knows the person lacking capacity, and preferably that person's will and preferences, it is important that decisions on the person's property and affairs should be made by a decision-making representative. The option of having decisions made by the director of the decision support service should be a last resort option. As a result, the amendment proposes a new provision, subsection (b), whereby the court could confer the role, on the director of the decision support service, only where there is no person suitable or willing to act as a decision-making representative in regard to the property and affairs of the person lacking capacity.