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

The entire section is about the enduring power of attorney.

Amendment No. 181 inserts a new section - registration of an instrument creating an enduring power of attorney. The new section 61 replicates section 58(1) of the Bill and provides in more detail for how the director shall review an application for registration. It also provides additional provisions incorporating an appeals mechanism in relation to the decisions of the director on the registration of an enduring power. Subsection (1) lists the criteria that the director must consider when reviewing an application to register an enduring power.

Subsection (2) provides that, subject to any objection received, where the director is satisfied that the application is in order, he or she shall register the instrument creating the power.

Subsection (3) provides that, where the director is not satisfied that all is in order with an application, he or she shall notify the attorney and the donor of his or her view and give the attorney and the donor the opportunity to respond. This is a new provision that allows the attorney or donor to provide further material or evidence to back up the application for registration because we cannot rule out the possibility of vexatious complaints about who is chosen.

Subsection (4) is complementary to the new subsection (3). Following the receipt of further information or material as provided for in subsection (3), the director can do one of two things - register the instrument if he or she if satisfied that the criteria listed in subsection (1) have been met or refuse to register the instrument because the criteria are not deemed to have been met.

Subsection (5) is a new provision. It provides for an appeals mechanism for an attorney whose application to register is refused. The attorney has 21 days from the time he or she is notified that the application has been refused to appeal the decision of the director to the court.

Subsection (6) is a new provision and complementary to subsection (5). It sets out what the court may do upon an appeal under subsection (5). It may require the director to register the instrument, or affirm the director’s decision to refuse to register it or make an order or declaration, as it considers appropriate.

Subsections (7) and (8) provide for the director to supply an authenticated copy of the instrument to the attorney and the donor. The copies authenticated by the director will be evidence of the contents of the instrument and the date it came into force. New section 60(3) provides that the attorney shall send them copies of the enduring power of attorney when notifying them of his or her intention to register the power.

Amendment No. 182 inserts a new section – effect and proof of registration. The new section 62 replicates section 59(1) and (2). Subsection (1) provides that once an instrument has been registered, a revocation of power will not be valid unless it is confirmed by the court. A disclaimer by the attorney will not be valid except on notice to the donor and with the consent of the court. Once registration has taken place, the donor cannot extend or restrict the power, nor can he or she give a valid consent or instruction by which the attorney will be bound. Subsection (2) provides that subsection (1) applies for so long as the instrument is registered, regardless of whether the donor lacks capacity for the time being.

Amendment No. 183 inserts a new section – objections to registration. The new section 63 replicates and expands on section 58(2), (3), (4) and (5) of the Bill as passed by Dáil Éireann. It allows for objections to be made to the registration of an instrument creating an enduring power of attorney. It also provides for additional provisions that set out a mechanism by which the decisions of the director on whether an objection is well founded can be appealed to the court.

Subsection (2) sets out the grounds on which an objection to the registration of an instrument creating an enduring power of attorney may be made. It also allows for the possibility of a fee being charged which will help to filter out frivolous or vexatious objections. Section 46 of the Bill, as published, contains some similar provisions. Subsection (3) sets out the required actions of the director in regard to objections, while subsection (4) sets out the role of the courts in this regard. Subsection (5) provides that a person may appeal the decision of the director that his or her objection was not well founded to the court, while subsection (6) sets out the role of the court in this regard.

Amendment No. 184 inserts a new section – register of enduring powers. The new section 64 replicates section 60(1), (2) and (3) of the Bill as passed by Dáil Éireann. It mirrors similar revised provisions in regard to other registers maintained by the director. Subsections (1) and (2) require the director to maintain, in such form as he or she considers appropriate, a register of enduring powers of attorney that have been registered by him or her.

Subsection (3) revises the current provision that provides for the register to be open to inspection by the public. With a view to the need for data protection, particularly as enduring powers of attorney are essentially private arrangements between individuals, it is not considered appropriate to make the register open to the general public. Where it is necessary for a person or a body to know of the existence of an enduring power or to have access to some or all of its contents, the director will allow the appropriate level of access.

Subsection (4) allows the director to issue an authenticated copy of an enduring power or part thereof to a body or class of persons that shall be designated by regulation. Subsection (5) provides for the maintaining of a record of those who have had access to the register or who have been sent an authenticated copy of an enduring power.

Amendment No. 185 inserts a new section – revocation and variation of enduring power. The new section 65 replicates and expands on the current section 62 of the Bill. Additional subsections provide for provisions that were to be provided for by regulation. Subsection (1) clarifies that where a donor has capacity, an enduring power of attorney may be varied or revoked anytime prior to its registration. Subsection (2) provides that the variation or revocation must be done in such form as prescribed by the Minister. Subsections (3) and (4) set out the administration requirements for the variation and revocation of an enduring power of attorney by a donor. It is not necessary for the donor to go to court to revoke an enduring power that has not been registered. Subsections (5) and (6) provide that a donor may revoke an enduring power that has been registered if he or she has the capacity to do so. However, the court must confirm the revocation for it to be valid.

Amendment No. 186 inserts a new section – disclaimer by attorney. The new section 66 replicates section 52(14). It provides that a disclaimer of an enduring power that has not been registered by the attorney will not be valid except on notice to the donor. A disclaimer of an enduring power that has been registered by the attorney will not be valid except with the consent of the court.

Amendment No. 187 inserts a new section – reports by attorneys. The new section 67 replicates and expands on section 60(4) of the Bill as passed by Dáil Éireann. It provides for greater oversight of attorneys by the director, especially in regard to the financial affairs of donors. Subsection (1) is a new provision that requires an attorney who has been given the authority by the donor to make decisions on his or her property and affairs to submit within three months of the registration of the enduring power a schedule of the donor’s assets and liabilities and projected statement of the donor’s income and expenditure to the director.This is good practice on behalf of the attorney because he or she will need to be aware of the donor's incomings and outgoings in order to effectively manage the donor's property and affairs. It also ensures that the director is made aware of any substantial estates that may require closer oversight.

Subsection (2) requires the attorney to keep proper accounts and that such accounts be available for inspection by the director or special visitor. Subsection (3) requires the attorney under a registered enduring power to submit a report as to the performance of his or her functions under the enduring power to the director within 12 months. Subsection (4) provides that reports submitted by the attorney must be in a form to be prescribed by the Minister and must include details of all expenses and remuneration paid or to be claimed by the attorney. Subsections (6), (7) and (8) are new provisions that set out what must happen when an attorney does not comply with his or her reporting obligations. This includes a provision that allows the court to determine that the attorney should no longer act as attorney for the donor concerned. Subsection (9) defines the term “relevant period”. Subsections (10) and (11) are new provisions that apply the reporting obligations set out in this section to attorneys of enduring power that had been created under the 1996 Act but have not been registered yet. Subsections (12) and (13) are also new provisions that provide that the functions of the director, the investigations of the director and the appointment of special and general visitors by the director in relation to the reporting obligations of an attorney include attorneys and owners under enduring powers created under the 1996 Act.

Amendment No. 188 inserts a new section 68, complaints in relation to attorneys, into Part 7. The new section mirrors section 27, which deals with complaints against co-decision-makers. It sets out new provisions enabling complaints about the suitability or conduct of attorneys. Complaints against attorneys appointed under the Bill and attorneys appointed under the 1996 Act may be investigated by the director under this section. Provision is made here for the director, having satisfied himself or herself that a complaint is well-founded, to apply to court for a determination. An additional safeguard is provided by allowing the director to investigate a matter and bring it to court notwithstanding that no complaint has been received.

Amendment No 189 inserts a new section 69, applications to court. Subsection (1) sets out what the court may do where the director makes an application to it in relation to whether he or she should register an instrument creating an enduring power of attorney. Subsection (2) sets out the criteria that the court must take into consideration when determining if an attorney is suitable for appointment as an attorney. Subsection (3) replicates section 61(2). The court can determine the meaning or effect of the instrument. The court may give directions with respect to the personal affairs and the management or disposal of the donor’s property or affairs. It can also decide on the rendering of accounts and on the production of records kept by the attorney, and on the remuneration and expenses of the attorney and consent to a disclaimer by the attorney. Subsection (4) replicates subsection (3) of section 61. It sets out the circumstances in which the court must notify the director of its directions, requirements, consent or authorisation made under subsection (3) and requires the director to monitor the giving of effect of such directions, requirements, etc., by the attorney.