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

Amendment No. 174 inserts a section dealing with scope of authority - personal welfare decisions. New section 54 replicates subsections (2) to (7), inclusive, of section 53 and of the Bill as passed by the Dáil. It sets out the scope of authority of an enduring power of attorney in relation to personal welfare matters. Subsection (1) sets out the limited conditions where an attorney may restrain a donor. As with all other interveners restraint by attorneys is to be tightly regulated and only used in limited circumstances. The situation has to be an exceptional emergency in which there is an imminent risk of serious harm to the donor or to another person. Subsection (2) defines ‘‘restrains’’ for the purposes of this section. It includes the definition of chemical restraint in that definition. Restraint is deemed to apply when a person administers a medication with the intention of modifying or controlling the relevant person’s behaviour so that the person will become compliant. This amendment was inserted on Report Stage in the Dáil. Subsection (3) requires that the restraint be immediately ceased when no longer necessary to prevent the imminent risk of serious harm to donor. Subsection (4) provides that subsections (1) to (3) shall not constrain the generality of section 69 of the Mental Health Act 2001 or of rules made under that section. Subsection (5) prevents a donor from authorising an attorney from making a decision relating to the refusal of life-sustaining treatment or from making a decision that is the subject of an advance health care directive by the donor.Subsection (6) provides that if an enduring power contains a relevant decision relating to the refusal of life-sustaining treatment or a decision that is the subject of an advance health care directive, the power is null and void to the extent that is relates to that decision.

Amendment No. 175 inserts a section dealing with the scope of authority relating to property and affairs. New section 55 replicates, with minor amendments, section 54(3) to (5), inclusive, of the Bill as passed by Dáil Éireann. It sets out the scope of authority of an enduring power of attorney in relation to property and affairs. Subsection (1) provides that the attorney may, if specific provision to that effect is made in the power, act for his or her own benefit or that of any other person’s benefit to the extent provided for in the power. Subsections (2) and (3) cover the giving of gifts by the attorney on behalf of the donor. The donor must specify in the power that the attorney may give gifts, while subsection (3) limits these gifts to customary occasions and to persons, including the attorney, to whom the donor would have likely given gifts in the past. The value of the gifts must be reasonable, taking the circumstances of the donor into consideration.

Amendment No. 176 inserts a section dealing with the application of joint and joint several attorneys. New section 56 deals with the application of the Part to joint and several attorneys. The provisions in relation to joint and several attorneys were contained mainly in section 64 and the Second Schedule to the Bill as passed by Dáil Éireann. Subsection (1) allows a donor to appoint more than one attorney. The donor must specify in the enduring power of attorney whether such multiple appointments are made either jointly, jointly and severally, or jointly in some matters and severally in other matters.

Subsection (2) sets out what happens if one of the attorneys who was appointed to act jointly with another attorney is disqualified, dies or lacks capacity to carry out his or her duties as attorney. With regard to joint and several attorneys, where one dies, lacks capacity or is disqualified, the remaining attorney or attorneys may continue to act, unless the instrument creating the enduring power provides to the contrary.

Amendment No. 177 inserts a section dealing with persons who are not eligible to be attorneys. New section 57 equates to section 52(6) of the Bill as passed by Dáil Éireann. Section 52 deals with a number of issues relating to the characteristics of an enduring power and who may be appointed as an attorney. Subsection (1) sets out who is not eligible for appointment as attorney and replicates similar provisions in assisted decision-making, co-decision-making and advance health care directives. Subsection (2) replaces section 52(7) and prevents financial issues such as bankruptcy from being a barrier to being an attorney in respect of personal welfare matters.

Amendment No. 178 inserts a section on the disqualification of an attorney. New section 58 equates to section 52(7), (8), (10), (11) and (12). For clarity and consistency with other Parts of the Bill, the provisions relating to disqualification have been brought together in one section.

Amendment No. 179 inserts a new section on the functions of the court prior to registration. New section 59 replicates section 56. It enables the court, before the registration of the enduring power, to exercise powers it would have been able to exercise once a power had been registered, if it has reason to believe the donor may lack or shortly may lack capacity. An application to the court under this section may be made by any interested party whether the attorney has made an application for registration of the instrument.

Amendment No. 180 inserts a new section on application for registration of an instrument creating an enduring power. New section 60 replicates the existing section 57 and incorporates Schedule 1 to the Bill. However, additional text has been added to incorporate provisions that were to be provided for by way of regulations and to strengthen the safeguards against the premature or fraudulent registration of an enduring power. It sets out the obligations placed on the attorney when he or she has reason to believe the donor lacks capacity in relation to one or more relevant decisions which are the subject of the enduring power. Subsection (1) provides that an attorney must make an application to register the instrument creating the power of attorney as soon as he or she believes the donor lacks capacity.

Subsection (2) provides that the application for registration shall be made in a form that is to be prescribed by the Minister. The fee to accompany the application shall also be prescribed in regulations. Subsection (3) requires the attorney to notify specified persons of the fact that he or she is applying to the director to register the enduring power of attorney. The list of those who have to be notified mirrors the list contained in new section 53 which lists those who have to be notified of the execution of an enduring power. Currently, section 57 and Schedule 1 to the Bill replicate the provisions of notification found in the 1996 Powers of Attorney Act. The provisions and the accompanying regulations have been a source of confusion and conflict in recent years. In order to simplify and to provide protection against premature or fraudulent registration, I propose that all close family members be notified by the attorney that he or she intends to register the enduring power. Those notified will then have the opportunity to object to the registration if they are of the opinion that the attorney is not suitable or that undue pressure was placed on the donor to choose the appointed attorney. The amended notification provisions in this new section, coupled with the new notification requirements at execution stage, should, I hope, ensure all of those who need to be informed of an enduring power of attorney are notified.

Subsection (4) replicates section 57(3). It provides that the attorney may, before applying to register the enduring power of attorney, apply to the court for a determination in relation to the validity of the power. Subsection (5) replicates section 55(2). It allows an attorney, once he or she has applied for registration, to take action under the enduring power to maintain the donor, to prevent loss to the donor’s estate, to maintain the attorney or other persons so far as the donor might be expected to do so or to make a personal welfare decision that cannot be reasonably deferred until the application has been determined.

Subsection (6) is a new provision that requires an attorney who has taken action under subsection (5) to report these actions to the director. Subsection (7) sets out what needs to accompany the application to register an instrument creating an enduring power. Similar to the requirement in relation to the execution of an enduring power of attorney, statements on the donor’s lack of capacity will now be required from two different professionals, one of whom must be a health care professional such as a social worker.