Fergus O'Dowd (Louth, Fine Gael) | Oireachtas source

I thank the Minister of State for her response. As she indicated, the Bill, as initially published, included a provision similar to that proposed in amendment No. 146. However, the proposed measure was subsequently deleted. She is correct that making changes to wills is a serious matter, which must only be permitted in extremely important circumstances. The Law Reform Commission recommended permitting the High Court to make changes to a will in exceptional circumstances. This recommendation is reflected in my amendment. Why would the Law Reform Commission argue in favour of such a provision and why has the Department not accepted its recommendation?

Given how far we have gone on these issues, it is clear that there are serious and significant arguments in favour of my proposal. The Minister of State has outlined that, on balance, she accepts the arguments against the measure. The proposal should be implemented in the legislation because it is based on the experience of legal practitioners who can cite many examples to support it. In many cases, a person provides in a will for equal treatment to each and all of his or her children and gives specific assets to each of them. However, during a subsequent lack of capacity, liquid assets bequeathed to a particular beneficiary may be used for the benefit of the testator, thereby leaving one of the children out of benefit. If the testator had the capacity to do so and in line with the overarching intention to benefit all and each of his or her children equally, he or she would alter the will to ensure equal benefit. The Law Reform Commission recommended allowing the High Court to alter a will if justice demands and in exceptional circumstances. The commission was careful to point out that it would not be appropriate to intervene in circumstances where no will had been drawn up as to do so would be to impose a view on the testator. I reiterate that the recommendation of the Law Reform Commission should stand and apply only in exceptional circumstances.

The manipulation of assets by members of the legal profession, attorneys and family members through joint accounts and other means sometimes, though rarely, results in individuals, primarily family members, being able to arrange inheritance to suit themselves and ensure other family members do not inherit or are disinherited. In practice, this is an area that is wide open to abuse. The Law Reform Commission consulted practitioners before making its recommendations. As such, the proposed amendment has the authority and experience of the legal profession behind it. The amendment is before the House to deal with such exceptional circumstances.

The second amendment deals with financial abuse. Financial abuse is clearly a very serious issue. There are increased levels of financial abuse, particularly of older people, and various HSE reports, including Open Your Eyes, clearly state that legislation must be put in place to provide safeguards and meet our obligations under the UN Convention on the Rights of Persons with Disabilities. The convention states that states party shall ensure that all measures relating to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. HIQA and HSE reports into nursing homes show that there have been significant allegations of financial abuse. I am aware of a case in County Meath in which the owner of a nursing home was the beneficiary of a will, which was entirely inappropriate. There was litigation about that. It is very important to protect our people from financial abuse. What is recommended here is only one element. Joint accounts can often abused, and this may be facilitated by financial institutions which do not raise the appropriate red flags when these issues arise. Research from the National Centre for the Protection of Older People at UCD and the annual report of the HSE show that there is a large element of financial abuse, particularly of older people. The abuse is there and my amendments are reasonable and proper. While they will not be accepted by the Minister of State, I accept in the good faith in which she offers it her commitment to look at this issue again.

The recommendation of the Council of Europe on the promotion of the human rights of older people sets out that member states shall provide for appropriate awareness-raising and other measures to protect older people from financial abuse, including deception and fraud. I welcome the Minister of State's response to my second amendment, although I do not agree with what she said about the first. I am happy to hear her comments.

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