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

Amendment No. 172 inserts a new section dealing with content of instrument creating an enduring power of attorney. New section 52 sets out what has to be included in an instrument that creates an enduring power of attorney. Subsection (1) provides that the instrument must contain statements from the donor, a legal practitioner, a registered medical practitioner, a health care professional and the attorney in relation to various matters, such as the capacity of the donor, that fraud of undue pressure was not used to create the enduring power and that the attorney is willing to undertake the functions of attorney under the power. The provisions were previously contained in section 52(4) which covered what may be included in regulations to be made by the Minister.

New section 52 makes it obligatory to have such statements included in an instrument. It also provides for an additional safeguard by requiring statements by two different professionals as to the capacity of the donor to understand the implications of creating such an enduring power. One of the statements must be from a health care professional, such as a social worker, so as to not be too reliant on the medical assessment of capacity. Subsection (2) is a new provision specifying details that must be included in the instrument creating the enduring power of attorney that would otherwise be left to regulations.

Subsection (3) is a new provision, complementing subsection (4). Subsections (3) and (4) mirror provisions introduced into the co-decision-making Part on Committee and Report Stages in the Dáil. The NDA advised that the Bill needs to provide for situations where due to literacy issues, blindness, dexterity, etc., a person is unable to sign a document. The proposed provisions that will apply where a person cannot sign the document accords with advice that such a situation would require the combined input of the donor, the attorney, the substitute signatory and two witnesses.

Subsection (4) is a new provision, complementing subsection (3). It tightens the provisions regarding the witnessing of an instrument creating an enduring power. Similar to section 14(7) in the co-decision-making Part, a further safeguard has been inserted which provides that an employee or agent of the attorney may not be a witness to an instrument creating an enduring power of attorney. It also requires that at least one of the witnesses is not an immediate family member of the donor or the attorney. The requirement that at least one witness is not an immediate family member is to provide an additional safeguard so that an independent person must be involved as a witness. This is to reduce the risk of a donor being pushed by family members into conferring an enduring power of attorney against his or her wishes.

Subsection (5) is a new provision that requires a donor to specify in the instrument creating the enduring power if the attorney is to be paid for performing the functions of attorney, what functions he or she is to paid for and how much he or she is to be paid.

For clarity subsection (6) provides a definition of immediate family member to include a spouse, civil partner, cohabitant, child, parent, step-parent, a grand-parent, an aunt, uncle, nephew, niece or immediate in laws of the appointer or co-decision-maker. The same definition is found in the corresponding subsections in Part 4 on co-decision-making and Part 8 on advance health care directives.

Amendment No 173 inserts a new section dealing with notice of execution of an enduring power of attorney. New section 53 sets out the notification requirements in relation to the execution of an enduring power of attorney. It is a new provision that requires the donor to give notice of the execution of the power to all close family members, such as spouse and children over 18 years of age and any decision-making supporters that the donor may have, such as a decision-making assistant or co-decision-maker. It also allows the donor to name two other persons whom he or she wishes to inform of the execution of the enduring power. The provisions in new section 53 specify requirements that would otherwise would have been left to regulations.

Amendment No. 173 inserts a section dealing with scope of authority - personal welfare decisions.