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

I move amendment No. 29:

In page 27, to delete lines 34 to 36, and in page 28, to delete lines 1 to 40 and substitute the following:“Nullity

17. (1) Where an event specified in paragraphs (a) to (c) occurs, a co-decision-making agreement shall, with effect from the date on which the event occurs, be null and void to the extent that it relates to a relevant decision where there is, in respect of the relevant decision—

(a) a decision-making order or a decision-making representation order in relation to the appointer,

(b) an advance healthcare directive made by the appointer and the appointer lacks capacity, or

(c) an enduring power of attorney made by the appointer that has entered into force.

(2) A co-decision-making agreement shall, with effect from the date on which an event specified in paragraphs (a) to (c) occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, and unless it provides otherwise, be null and void where the co-decision-maker is the spouse of the appointer and subsequently—

(a) the marriage is annulled or dissolved either—

(i) under the law of the State, or

(ii) under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State,

(b) either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect,

(c) a written agreement to separate is entered into between the spouses, or

(d) subject to section 2(2), the spouses separate and cease to cohabit for a continuous period of 12 months.

(3) A co-decision-making agreement shall, with effect from the date on which an event specified in paragraph (a) or (b) occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, and unless it provides otherwise, be null and void where the co-decision-maker is the civil partner of the appointer and subsequently—

(a) the civil partnership is dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other),

(b) a written agreement to separate is entered into between the civil partners, or

(c) subject to section 2(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.

(4) Subject to section 2(2), a co-decision-making agreement shall, at the expiry of the period referred to in this subsection, and unless it provides otherwise, be null and void where the co-decision-maker is the cohabitant of the appointer and subsequently the cohabitants separate and cease to cohabit for a continuous period of 12 months.

(5) To the extent that a co-decision-making agreement includes a matter referred to in section 14(4), it shall be null and void.

(6) Subject to subsection (7), where, subsequent to the appointment of a co-decision-maker—

(a) the co-decision-maker is convicted of an offence in relation to the person or property of the appointer or the person or property of a child of the appointer,

(b) a safety or barring order is made against the co-decision-maker in relation to the appointer or a child of the appointer,

(c) the co-decision-maker becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty,

(d) the co-decision-maker becomes a person in respect of whom a declaration has been made under section 819 of the Act of 2014,

(e) the co-decision-maker becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter,

(f) the co-decision-maker becomes the owner, or the registered provider, of a nursing home (whether or not it is a nursing home registered under the Health Act 2007), a mental health facility, or residential facility for persons with disabilities, in which the appointer resides, or a person residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the person is a spouse or civil partner, parent, child or sibling of the appointer,

(g) the co-decision-maker is convicted of an offence under section 127,

(h) the co-decision-maker—

(i) enters into a decision-making assistance agreement as a relevant person,

(ii) enters into a co-decision-making agreement as a relevant person,

(iii) has an enduring power of attorney registered in respect of himself or herself,

or

(iv) becomes the subject of an order under Part 5,

or

(i) the court finds that the co-decision-maker shall no longer act as co-decision-maker for the appointer, the co-decision-making agreement concerned shall be null and void with effect from the date on which the co-decision-maker falls within any of paragraphs (a) to (i).

(7) A co-decision-making agreement shall not be null and void pursuant to paragraphs (6)(c), (d) and (e) to the extent that it contains relevant decisions on personal welfare.

(8) Where a co-decision-making agreement which stands registered becomes null and void, the appointer or the co-decision-maker under that agreement shall notify the Director of same.

(9) Where a co-decision-making agreement which stands registered becomes null and void, or a relevant decision which is the subject of a co-decision-making agreement becomes null and void, and a person, without knowledge of the nullity, deals with the appointer and the co-decision-maker, the transaction between them shall, in favour of that person, be as valid as if the co-decision-making agreement had been in force.

(10) A co-decision-maker or appointer who, without knowledge of the nullity of a co-decision-making agreement or of a relevant decision which is the subject of a co-decision-making agreement, as the case may be, acts in accordance with or pursuant to that relevant decision, shall not incur liability as a result of so acting.”.

Amendments Nos. 29 and 52 pull together the provisions dealing with the circumstances in which a co-decision-making agreement may become null and void.Amendment No. 29 proposes the deletion of the current section 17 and the insertion of amended text. The amended section 17, which is now to be entitled "Nullity," pulls together into one coherent section the various provisions relating to nullity and invalidation of a co-decision-making agreement that are currently dotted throughout Part 4 of the Bill. It also reinstates the provisions of subsections 18(8) to (10) of the original Bill in regard to invalidation due to divorce, separation, etc., of the relevant person and the co-decision-maker that were inadvertently omitted in the revised text inserted on Committee Stage.

Amendment No. 52 inserts a new section entitled "Role of the Director where nullity occurs." It sets out the procedures the director must follow once he or she receives notice of the nullity of a co-decision-making agreement or a relevant decision.

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