Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I move amendment No. 3:

In page 6, to delete lines 2 to 7 and substitute the following:

“ “applicant” means—

(a) subject toparagraph (b), a person who makes an application in accordance with section 19, or

(b) in the case of an application to whichsection 36or 37(2) applies, or proceeded with undersection 38, the person on whose behalf or for the benefit of whose estate the application is made;”.

The amendments in this grouping relate to the definition of "applicant" and the treatment of applications which are made on behalf of relevant persons where the relevant person is incapacitated or deceased. The published Bill defined an applicant as "a person who makes an application in accordance with section 14, or a person on whose behalf or for the benefit of whose estate such an application is, in accordance with this Act, made, and a reference in this Act to an applicant shall, where the context so requires, include a reference to a person who makes an application in accordance with section 31 or 32 or who proceeds under section 33 with an application". Therefore, the term "applicant" could mean the relevant person, that is, the person who spent time in an institution, or a person acting on behalf of such a relevant person. Despite the definition providing that a reference to an applicant could be so construed, it was still creating some confusion in respect of parts of the Bill where the chief deciding officer required information in respect of both the relevant person and the person acting on behalf of the relevant person. There were also difficulties in respect of section 14(4)(b) and section 14(4)(c) where the chief deciding officer is required to establish an applicant is a relevant person and, if so, make calculations in accordance with section 19. The definition is, therefore, being stripped back in the interests of legal clarity and under the proposed new definition in the amendment, an applicant is solely the relevant person.

On Committee Stage I flagged that amendments would be tabled on Report Stage to provide further clarity on the making of applications on behalf of a relevant person and this is provided for in amendment No. 51. With the assisted decision making (capacity) legislation now successfully enacted, these provisions can be updated to take full account of that legislation. That is what this amendment does. It also ensures we are fully catering for arrangements that might be in place in respect of persons who lack capacity both in Ireland and abroad. Subsection (a) of the provision provides for applications on behalf of a relevant person to be made by "a person who is authorised by or under an enactment or an order of a court to make such an application". Subsection (b) provides for an application "where the relevant person is ordinarily resident in a place outside the State" to be made by "a person who is authorised, under the law of the place, to act on behalf of the relevant person".

Amendment No. 55 proposes the inclusion of a new section 34 to support sections 31 to 33, inclusive, and also as a consequence of the proposed amendment to the definition of "applicant" in section 2. This provides for instances where an application is made under section 31 on behalf of a relevant person who lacks capacity; section 32 where the relevant person is deceased; or section 33 where the relevant person dies while the application is being processed. In those situations, the chief deciding officer should satisfy him or herself that the person is authorised to make an application under these sections. The person making the application should furnish the CDO with any "contact details, personal data and information" required in order for the CDO to be satisfied that the person is duly authorised. When it has been established to the satisfaction of the CDO that the person making the application is duly authorised to do so, for the purposes of this application, that person will become the proxy applicant. The CDO may, therefore, deal with this person as though he or she were the applicant and the powers and duty under this Act shall be exercisable or carried out by this person. This proposed arrangement is important as the proxy applicant in this case will be engaging with the scheme on behalf of the relevant person and making all decisions in respect of that application, including the significant decision of whether or not to accept an offer from the scheme.

Amendment No. 5 provides for a definition for the term "enactment" as referred to in the revised section 31. Amendments Nos. 40, 41, 45 to 47, inclusive, 52 to 54, inclusive, 64 and 66 are all technical and consequential in nature. They all provide for amendments to other sections to take account of the changes to the definition of an "applicant" and the inclusion of the new section proposed by amendment No. 55. Previously in these sections, the word applicant was used to take account of the relevant person or a person acting on behalf of a relevant person. It is now necessary to specify applicant; a person who is making an application on behalf of a relevant person in accordance with section 31; or a personal representative who is making an application under sections 32 or 33.

Amendment No. 54 provides for the deletion of subparagraph 3 in section 33. However, the provisions of that subparagraph are now being dealt with in the proposed new section arising from amendment No. 55.

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