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

I move amendment No. 42:

In page 35, to delete lines 38 and 39, and in page 36, to delete lines 1 to 27 and substitute the following:“26. (1)A person may make a complaint in writing to the Director concerning one or more of the following matters:

(a) the conduct or proposed conduct of a co-decision-maker, including whether he or she has acted, is acting, or is proposing to act outside the scope of his or her functions;

(b) the suitability of a co-decision-maker in relation to an appointer;

(c) a co-decision-making agreement not being in accordance with the will and preferences of an appointer;

(d) that the appointer did not, at the time of entry into the co-decision-making agreement, have capacity to make a decision to enter the agreement;

(e) that fraud, coercion or undue pressure was used to induce the appointer to enter into the co-decision-making agreement;

(f) that the appointer has capacity in respect of one or more of the decisions which are the subject of the co-decision-making agreement without the assistance of a co-decision-maker;

(g) that the appointer no longer has capacity in respect of one or more than one of the decisions which are the subject of the co-decision-making agreement even with the assistance of the co-decision-maker.

(2) Following the receipt of a complaint under subsection (1), the Director shall carry out an investigation and—

(a) where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to any matter specified in the complaint, or

(b) where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for same.

(3) The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an investigation and make an application to court for a determination in relation to any matter specified in subsection (1).

(4) The court may—

(a) pursuant to an application to it under subsection (2) or (3), or

(b) pursuant to an application by an interested party whose complaint under this section has been rejected by the Director, make a determination in relation to a matter specified in subsection (1) which was the subject of a complaint to the Director and may, if it considers it appropriate, determine that a co-decision-maker shall no longer act as such in relation to the appointer concerned.”.

The amendment proposes the deletion of section 26 and the substitution of amended text. The amended text sets out what a director has to do if he or she, after carrying out an investigation into a complaint, is of the view that the complaint is not well founded. The person whose complaint the director has found to be unfounded may apply to the court to make a determination in regard to the complaint.

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