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

In addressing amendments Nos. 2, 7,19 20, 69, 77, 143 to 145, inclusive, and 148, 170 to 193, inclusive, as already outlined by the Cathaoirleach, I am proposing a suite of amendments to Part 7 of the Bill which provides for enduring powers of attorney. The provisions on enduring powers of attorney have remained for the most part untouched since the Bill was published in July 2013. Part 7 of the Bill largely restates the provisions of Part 2 of the Powers of Attorney Act 1996. The proposed amendments are required to align the provisions with the UN Convention on the Rights of Persons with Disabilities and current international best practice. The proposed amendments are also required for textual consistency and alignment with the rest of the Bill. The House will see that many of the proposed new sections mirror provisions already in other parts of the Bill.

The amendments will strengthen the safeguards against attorneys acting outside the authority given to them, address potential risks of abuse and exploitation of donors and increase protection for the rights of donors. The proposed amendments provide for attorneys to be accountable and held responsible for their actions. I am proposing to delete sections 50 to 64, inclusive, and replace them with a revised, simplified text and additional sections that provide for more detailed provision in relation to reports by attorneys, complaints against attorneys and offences relating to enduring powers of attorney.

Some of the new sections specify requirements such as notification requirements that would otherwise be left to regulations and were included in Schedules 1 and 2 to the Bill. Thus the main requirements for executing and registering enduring powers of attorney are now contained in primary legislation.

One of the main substantive changes to Part 7 is that the director will not register enduring powers which have been created under the 1996 Act but have yet to be registered. I have received legal advice stating that it would not be possible for the director to register these enduring powers under this Bill. They will have to be registered under the 1996 Act by the Office of the Wards of Court, which is the current system. However, the attorneys appointed under these enduring powers and all other powers registered under the 1996 Act will be subject to the new complaints and offences provision I am proposing to insert by way of amendments Nos. 188 and 192. I believe that the number of executed but not yet registered enduring powers under the 1996 Act will be small.

Amendment No. 2 revises the definition of "attorney" in line with the amendments to Part 7 of the Bill.

Amendment No. 7 is similar to amendment No. 2 in that it revises the definition of "enduring power of attorney" in line with the proposed amendment to Part 7 of the Bill. It also inserts a definition for "enduring power" under the 1996 Act which is now required as a result of the proposed amendment to Part 7.

Amendments Nos. 19 and 20 propose to delete the cross-references to Part 7 and Schedules 1 and 2. This is to enable jurisdiction for enduring powers of attorney to be transferred from the High Court to the Circuit Court. The proposal to transfer jurisdiction to the Circuit Court is intended to enable cases relating to enduring powers of attorney to have the benefit of the specialist judges who will be dealing with the majority of matters arising under this Bill. It is also intended to reduce costs for applicants in the interests of encouraging more people to draw up enduring powers of attorney. These remain a good means for the person to express his or her will and preference in terms of who should take decisions on his or her behalf if he or she subsequently loses capacity.

Amendment No. 69 clarifies that a co-decision making agreement will be null and void if there is an enduring power of attorney in force, registered either under this Bill's provisions or the 1996 Act.

Amendment No. 77 clarifies that the disqualification of a co-decision maker if he or she has an enduring power of attorney registered in respect of him or her includes enduring powers of attorney registered under the 1996 Act.

Amendments Nos. 143 to 146, inclusive, amend subsections (9) and (10) of section 33 which allow a person who is the subject of an application to be assisted in court by a court friend if he or she is not legally represented or does not have a decision-making assistant, co-decision maker, decision-making representative, attorney, designated health care representative or other person willing to assist him or her with the proceedings. The amendments clarify that the attorney can be appointed under the Bill or under the 1996 Act.

Amendment No. 148 proposes to delete subsection 34(3) which provides that the court cannot make a declaration as to whether a person lacks capacity to make or revoke an enduring power of attorney. This subsection was inserted in the Bill in order to avoid a person having to go to court routinely to get a declaration of capacity in respect of the making or revoking of an enduring power. A statement from a medical professional and another health care professional on the capacity of the donor is deemed sufficient. However, in drafting the new provisions on objections, complaints and offences under Part 7, it became apparent that the court may have to assess the donor’s capacity in order to investigate an objection, complaint or offence and it could not do so if subsection 34(3) remained in the Bill.

Amendment No. 170 inserts a new section 50. The current section 50 is being deleted and replaced by revised text as part of the overall amendment of the enduring powers of attorney provisions. The interpretation section of Part 7 has been streamlined and provides a definition of key terms in the revised sections of Part 7.