Caít Keane (Fine Gael) | Oireachtas source

I welcome the Minister of State and congratulate her on bringing this Bill before us. I equate the legislation with the importance of marriage equality. The Bill deals with the most vulnerable group of citizens in this State and outlines how people should be treated down the years. I hope none of us reaches such a stage but everybody, at some stage, may go through this situation. The legislation refers to people who have a reduced capacity to make decisions, which includes people with disabilities, some of the elderly or whatever. Regrettably, in the past this State had a less than admirable history of understanding when it came to the treatment of such citizens. The Bill aims to put an end to that sad tradition and to recognise in law the significant progress made in Irish society when it comes to the treatment of people with a reduced capacity.

I welcome the Bill and the efforts the Minister of State has made to ensure that this is a different Bill from what was put before us in 2013. Many changes have been made to the legislation which proves she listened to the recommendations made by the Oireachtas committee that worked on the matter. I welcome the fact that the legislation has played its part in bringing the most archaic laws in line with social progress.

As the Minister of State said, the Bill will enable the Government to ratify the UN Convention on the Rights of Persons with Disabilities. It is a further welcome sign that our laws are being reviewed to ensure that the most vulnerable in our society are recognised.

The Bill is complex and I do not pretend to understand every bit of it. I have noted what Senator Norris said about the way Bills are written. I know that many of the people who have been burdened most by the time involved. They have given generous amounts of their time, be it in sittings that date back to 2011 to 2013, as Senator Bacik has said, and now. This included more than 15 organisations representative of the various people, be they disabled older people, people who suffer from mental health issues or others. I acknowledge the presence of all of the people, be they from families, friends and organisations, who have put a massive amount of work into this Bill and thank them for helping us, as Senators, to raise issues on the floor of this House.

Unfortunately, there are still some outstanding concerns when it comes to this Bill. I have recognised the complexity of the Bill and the clear welcome for its arrival in the House. However, it is our role, as Senators, to ensure that the outstanding issues raised by family members or organisations are brought to the attention of the Minister of State. She has shown a capacity for listening and made changes on Committee and Report Stages in the Dáil or wherever.

The SAGE Support and Advocacy Service for Older People has said that this legislation could be one of the finest pieces of capacity legislation anywhere. That statement is an acknowledgement of the work done by the Minister of State and asserts that the legislation is fundamentally different from previous legislation.

Public interest in this legislation is testament to its importance. It is with reference to the concerns raised that I want to bring one or two issues to the Minister of State's attention. Senator Norris has mentioned one of the issues. The current reality is that neither the ward of court nor a family has a say in the management of investment funds in the ward's name. There are many cases on record, and indeed court cases on record, of such invested funds being allowed to dwindle without any reference at all to the family or the ward of court. Many investment funds have been badly hit by the recent economic downturn and crash, so many wards of court have suffered catastrophic losses. They or their families were not responsible for the investment decisions which encouraged losses. Many people have lost money in such circumstances. However, special note must be taken of what happens to the funds that belong to people with capacity issues.

A report was commissioned by the Committee of Public Accounts last July and one of its recommendations was as follows, "An annual statement which contains the sum remaining in the fund at year end and the investment performance for the previous year should be provided to each ward of court." I agree with the recommendation and would like the provision extended to provide it to each family member or assisted member who makes decisions on behalf of the person.

I welcome the introduction of a structured payment system in the Bill. The provision will help future litigants but it will not help the wards of court or minors who have already lost significant funds due to bad investments. The legislation provides for capital to be sold to provide income.

Following recommendations that the Comptroller and Auditor General might play a role in auditing these funds and their performance, the Department of Justice and Equality responded recently. It said:

First, at a policy level, we have no objections whatsoever and would support the Comptroller and Auditor General and the committee having sessions on this in terms of the audit. That is a matter for legislation and the powers of the Comptroller and Auditor General. The committee will not find any objections from the Department or the Courts Service to it getting involved in this.

The groups recommend that it will bring added value and reassurance to people, particularly minors. I ask the Minister of State to examine the matter.

Part 6 of the Bill refers to the specific interests of the wards of court. I know that there are people residing in Magdalen homes who have been deemed to lack capacity who are unable to draw the funds that are due to them. They may lack capacity or are going through the process of being made a ward of court and, therefore, decisions have been left on hold until this Bill is enacted. The legislation needs a speedy passage through the House but every issue must still be taken into consideration. We must ensure that the Bill enables the family concerned to retain the greatest amount of autonomy possible in situations where capacity is lacking. Very often, through no fault of their own, persons have been left in a home or whatever yet people manage their funds out of existence. As Senator Norris has said, if such persons were living at home then their funds might be managed differently. It is usual for families to have the best interests of such a person at heart. I welcome the facility in this Bill that a person can communicate his or her wishes to a family member. I also welcome the fact that the Bill is flexible and functional. This Bill has replaced the old ward of court system with a modern statutory framework in order to assist persons in exercising their decision-making capacity. It also provides that a person may appoint a trusted person to act as his or her decision-making assistant in order to assist them to reach a decision jointly which I wholeheartedly welcome.

Many Senators have spoken about mental capacity assessment. The Minister recommended the following amendment in section 7 which states, "A decision-making assistance agreement shall be invalidated to the extent that it relates to any relevant decision," where the relevant person lacks capacity in respect of that relevant decision which is welcome. The UN Convention on the Rights of People with Disabilities has made it clear that an individual's actual or perceived mental capacity can never justify a denial of legal capacity. Even if such denial is in respect of one decision, the Bill needs to clarify the legal capacity.