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

I move amendment No. 26:

In page 23, to delete lines 31 to 37, to delete page 24, and in page 25, to delete lines 1 to 9 and substitute the following:“14. (1) Subject to the provisions of this section, a person who has attained the age of 18 years and who considers that his or her capacity is in question or may shortly be in question may appoint a suitable person who has also attained that age to jointly make with the first-mentioned person one or more than one decision on the first-mentioned person’s personal welfare or property and affairs, or both, in compliance with this Part and regulations made under section 27.

(2) A person is suitable for appointment as a co-decision-maker if he or she—

(a) is a relative or friend of the appointer who has had such personal contact with the appointer over such period of time that a relationship of trust exists between them, and

(b) is capable of effectively performing the functions under section 16.

(3) An appointment as a co-decision-maker shall be made in writing in a co-decision-making agreement that is in compliance with this section and regulations made undersection 27.

(4) Notwithstanding the definition of “property and affairs” in section 2 an appointer shall not include in a co-decision-making agreement provision for the disposal of his or her property by way of gift.

(5) A co-decision-making agreement shall contain the following:

(a) the name, date of birth and contact details of the appointer;

(b) subject to subsection (6), the signature of the appointer and the date that he or she signed the agreement;

(c) the name, date of birth and contact details of the co-decision-maker;

(d) the signature of the co-decision-maker and the date that he or she signed the agreement;

(e) the signatures of the 2 witnesses referred to in subsection (7).

(6) A co-decision-making agreement may be signed on behalf of the appointer by a person who has attained the age of 18 years and who is not the co-decision-maker or one of the witnesses referred to in subsection (7) if—

(a) the appointer is unable to sign the agreement,

(b) the appointer is present and directs that the agreement be signed on his or her behalf by that person, and

(c) the signature of the person is witnessed in accordance with subsection (7).

(7) (a) The appointer, or the person signing on his or her behalf in accordance with subsection (6), and the co-decision-maker shall sign the co-decision-making agreement in the presence of each other and in the presence of 2 witnesses—

(i) each of whom has attained the age of 18 years,

(ii) of whom at least one is not an immediate family member of the appointer or the co-decision-maker, and

(iii) neither of whom is an employee of or agent of the co-decision-maker.

(b) Each of the witnesses referred to in paragraph (a) shall witness the signature of the appointer (or the person signing on his or her behalf) and the signature of the co-decision-maker by applying his or her own signature to the co-decision-making agreement.

(8) An appointer may appoint more than one person as a co-decision-maker but may not—

(a) appoint in the same co-decision-making agreement more than one person as a co-decision-maker, or

(b) appoint in a co-decision-making agreement a co-decision-maker in respect of a relevant decision which is the subject of another co-decision-making agreement.

(9) The Director shall, on a request being made of him or her by a person who intends to appoint a co-decision-maker or a person who is proposed as a co-decision-maker, or both, provide information to the person requesting with regard to making and entering into the co-decision-making agreement.

(10) In this section, “immediate family member” means—

(a) a spouse, civil partner, or cohabitant,

(b) a child, step-child, son-in-law or daughter-in-law,

(c) a parent, step-parent, mother-in-law or father-in-law,

(d) a brother, sister, step-brother, step-sister, brother-in-law or sister-in-law,

(e) a grandparent or grandchild,

(f) an aunt or uncle, or

(g) a nephew or niece of the relevant person.”.

Amendment No. 26 is one of a number of proposed amendments, mainly technical in nature, to the co-decision-making provisions of the Bill. Substantial amendments were agreed to on the provisions of co-decision-making on Committee Stage in the Dáil. However, further review of the co-decision-making provisions indicated that additional amendments are needed to clarify the intent of the policy and to provide further safeguards regarding co-decision-making appointers. The majority of the amendments are technical in nature and have no policy implications. The technical amendments were advised by the drafter to provide clarity and coherence within the Bill. Where several amendments are being proposed to a section, whether on technical or policy grounds, it was decided substitute the entire section in order to provide a clear picture of how the section would read with all amendments included.

Amendment No. 26 proposes to delete the current section 14 and replace it with amended text. The majority of the proposed amendments to the text of section 14 are technical in nature. The main substantive proposed amendments to the text are as follows: the provisions in regard to the interaction of the various other instruments, such as enduring powers of attorney, with co-decision-making agreements have been removed and will be moved to the new nullity section, as provided for by amendment No. 29; subsection 8 has been amended in order to clarify that, although a person may appoint multiple co-decision-makers in regard to different relevant decisions, he or she may only appoint one co-decision-maker per agreement, which is reasonable and rational; and the provisions regarding the witnessing of a co-decision-making agreement have been tightened. A further safeguard has been inserted that provides that an employee or agent of the co-decision-maker may not be a witness to a co-decision-making agreement. The Bill already provides that at least one of the witnesses is not an immediate family member of the appointer or the co-decision-maker. For clarity, I propose to insert a definition of immediate family member to include a spouse, civil partner, cohabitant, child, stepchild, parent, step-parent, grandparent, aunt, uncle, nephew, niece or immediate in-law of the appointer or co-decision-maker. Amendment No. 93 will insert the same definition into section 65 of the Bill in regard to the witnessing of an advance health care directive. This amendment to the definition of immediate family member is to provide an additional safeguard so that an independent person must be involved as a witness. This is to reduce the risk of a relevant person being pushed by family members into a co-decision-making agreement against his or her wishes.

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