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

Amendments Nos. 135 to 142, inclusive, propose a series of amendments to the provisions regarding applications to court under Part 5. Amendments Nos. 135 to 137, inclusive, involve the deletion of the provision whereby the court can make a declaration in terms of a person’s capacity to marry. As the Bill is not altering the existing law in terms of marriage, it is not appropriate that the court should have a role in making a declaration regarding a person’s capacity to marry. The capacity to marry is governed by extensive statute law and common law which should more appropriately apply to it rather than this Bill.

Amendment No. 140 involves the deletion of provisions concerning costs for applications. It is appropriate that section 33(7)(a) should be deleted as the principle that the costs are borne by the parties who retain legal representation is a general one. There is no need to restate it in this legislation. It will apply to this Bill without having to be specifically referenced.

Similarly, with regard to section 33(7)(b), the Civil Legal Aid Act 1995 will apply to proceedings under this Bill and there is no need to reference it specifically. I am removing a provision that might be detrimental to a relevant person in section 33(7)(c). As it stands, a person or an organisation can take an application to have a person declared as lacking capacity and can have the legal costs borne out of the person’s assets. That potentially creates the risk that a person might mischievously seek a declaration that another person lacks capacity to gain control of his or her assets. There would be no disincentive as the costs of the proceedings would be borne by the relevant person. I propose to remove this provision for this reason,

Amendment No. 142 is a technical amendment. As the Bill specifies the parties who are to be notified of applications, it is not appropriate for these to be determined by rules of court.