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

I move amendment No. 37:

In page 13, line 40, to delete “section 24(1)” and substitute “section 23(4)*”.

Amendment No. 37 is a technical amendment to correct a cross-reference. Amendment No. 124 proposes the first of the changes consequent on co-decision-making being moved out of the courts. As co-decision-making is now a voluntary option, a person cannot be forced to enter a co-decision-making agreement. The amendment sets out the provision that a decision-making representative can be appointed only where the court is satisfied that there is no co-decision-making agreement in place and that the court has made a declaration that the person lacks capacity to make a decision or a class of decisions. Consequently, it allows the feasibility of co-decision-making to be considered for the person with capacity difficulties before proceeding to a decision-making representation agreement in line with the ethos of the Bill that the least intrusive options should be considered before proceeding to more intrusive options.

Amendment No. 125 is intended to clarify that the court can make an order appointing a decision-making representative to take decisions on property and affairs, on personal welfare, or on both property and affairs and on personal welfare on behalf of a person with capacity difficulties.

Amendment No. 126 proposes the factors that should guide the court when determining whether a person is suitable to act as a decision-making representative for a person with capacity difficulties. The most important factor is that of the will and preferences of the person with capacity difficulties, in line with the ethos of the Bill that the mechanisms being put in place are primarily to express the person’s wishes when the person no longer has the capacity to do so.

As the support of family members can be important for many people in this situation, the next factor enables the court to prioritise a family member for appointment as a decision-making representative provided that the person is otherwise suitable. The person being selected has to be compatible with the person with capacity difficulties and a factor is proposed in this regard.

The final factors require the court to assess whether the proposed decision-making representative will be able to perform the functions to be vested in him or her. There is no point in appointing a decision-making representative who may be compatible with the person but unable to perform what is a responsible and often onerous role. The final factor is that of assessing any potential conflict of interest.

Where a decision-making representative will have responsibility for decisions on the person’s property and affairs, these decisions will often be more complex in nature than those relating to personal welfare. An additional set of factors are proposed requiring the court to assess whether the proposed decision-making representative will have the competence to perform the role, taking account of the size and complexity of the person’s affairs. It allows the court to take account of potential supports available to the proposed decision-making representative when assessing that person’s competence for the role. A family member, for instance, might not have extensive expertise in managing the business of a person with capacity difficulties. However, if the family member could show that she or he had access to accountants or business experts to support him or her in her role, that could be taken into account by the court.

Amendment No. 127 addresses the situation where there is no suitable person to perform the role of decision-making representative. As the definition of suitability includes whether the person has the capability to perform the role, it is not considered necessary to include the phrase "or able" in this provision.

Amendment No. 37 proposes to correct a cross-reference.

Amendment No. 130 proposes that the director of the decision support service must comply with the court’s request to nominate two representatives from the panel of decision-making representatives maintained by the decision support service where the court seeks to appoint a decision-making representative from that panel.

Amendment No. 129 is a consequential amendment arising from the insertion of the new paragraph (b) into subsection (3).

Amendment No. 132 proposes to require the court, when appointing a decision-making representative, to decide also on the powers to be conferred on the decision-making representative, the duties and-or any conditions to be imposed. The existing provision leaves this at the court’s discretion. The purpose of the amendment is to restrict the room for manoeuvre of decision-making representatives in order that the functions they exercise will be limited to those set out by the court. This is intended as a safeguard against a decision-making representative acting beyond his or her functions because duties and conditions were not clearly ordered in advance by the court.

Amendment No. 134 proposes that the court would require a potential decision-making representative to sign a statement indicating that he or she understands and agrees to act in accordance with the duties and powers conferred by the court and with the Bill’s guiding principles. By requiring a decision-making representative to make a commitment to the court at the time of appointment to abide by the obligations arising both from the court’s order and from the Bill, this is designed as a safeguard to prevent a decision-making representative from acting beyond the scope of his or her powers due to lack of knowledge of the obligations underpinning the role.

Amendment No. 138 is a safeguard which expands the circumstances in which a court can determine that a decision-making representative is acting outside the scope of the decision-making representation order. It allows the court to determine that the decision-making representative is acting outside the scope of the order if the representative is acting in a way that is not in accordance with the Bill’s guiding principles. The obligation on the decision-making representative is to act not only in accordance with the person’s best interests but also in accordance with the range of obligations set out in the Bill’s guiding principles.