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

I will take this as slowly as possible because it is a huge group of amendments. I understand the Senator's frustration. We will do this as painlessly as possible. Amendment No. 9 is intended to define intervention more accurately as the actions which directly have an impact on a relevant person. These can include an action by an intervener, a court order or a direction made by a court. It is not appropriate to include rules of court or ministerial regulations within the definition as their impact would be indirect in nature and would not be focused on an individual case. Accordingly, it is proposed to delete the references to rules of court or ministerial regulations from the definition of intervention.

Amendment No. 15 proposes to delete the words "in accordance with the provisions of this Act" from the definition of relevant person as the phrase is unnecessary to the meaning of the definition. Amendment No. 18 proposes the deletion of a phrase which is unnecessary to the meaning of the provision. It is intended that the provisions of section 3 will apply for all of purposes of this Bill. Amendments Nos. 22 and 24 propose to delete the word "relevant" from the provisions relating to the donation of an organ or the withdrawal of life-sustaining treatment. Amendment No. 28 proposes to delete the word "relevant" from subsection (9) of section 8. This is because the phrase "relevant person" means someone who lacks capacity. As these provisions explicitly state that they relate to a person who lacks capacity, the reference to "relevant" is unnecessary.

Amendment No. 46 is a technical amendment to introduce the necessary cross-reference to the criteria as set out in section 15 that make a person ineligible to be appointed as a co-decision maker. Amendment No. 53 ensures that the definition of immediate family relates to both the appointer and the co-decision maker and not just the appointer who is a relevant person. The purpose of amendment No. 54 is to correct a grammatical error. Amendment No. 57 is a technical amendment to make the provision more precise. Amendment No. 59 is a technical amendment that clarifies the intent of the provision that the functions of a co-decision maker shall be specified by the appointer in the co-decision-making agreement. Amendment No. 60 is a technical amendment that clarifies the intent of the provision that the co-decision-maker shall assist the appointer with communicating his or her will and preferences. Amendments Nos. 67 and 70 are technical amendments to specify that a co-decision-making agreement will be null and void if any of the circumstances specified in subsections (1) or (2) occur, that is, that a marriage or civil partnership is dissolved or the couple separate. Amendment No. 68 is a technical amendment to clarify that the reference is to the co-decision-making agreement.

Amendment No. 72 is a technical amendment to specify that subsection (6) relates to a co-decision-making agreement which becomes null and void post-registration of the agreement. Amendment No. 74 is a technical amendment to specify that the cross-reference should be to Chapter 5 of Part 14 of the Companies Act 2014. Amendment No. 78 is a technical amendment to specify that the disqualification of a potential co-decision maker occurs when the court makes a declaration under section 34(1), that is, a declaration which declares the co-decision maker to lack capacity, unless assisted by a co-decision maker or even with the assistance of a co-decision maker. Amendments Nos. 79 and 80 are drafting amendments to make the intent of the provisions clearer. Amendment No. 83 corrects a grammatical error.

Amendment No. 84 clarifies that the application for registration of a co-decision-making agreement must include a copy of any notice given to specified parties. Amendment No. 85 is a technical amendment to specify that the director’s review of an application for a co-decision-making agreement will relate to establishing if the criteria set out in paragraphs (a) to (f) have been met. Amendment No. 86 is a technical amendment to specify that one of the criteria that needs to be fulfilled is that the co-decision-maker is eligible for appointment according to the eligibility grounds set out in section 15. Amendments Nos. 87 and 88 are technical amendments in the interests of consistency. They propose that specified actions will be taken where the director is of the view that criteria have been satisfied.

Amendments No. 89 and 90 are technical amendments to clarify that the capacity to make a decision is at issue rather than the decision in general. Amendment No. 91 is a technical amendment to specify more clearly that an objection can be made to registration of a co-decision-making agreement if the potential co-decision maker is not eligible on the grounds set out in section 15(1). Amendment No. 94 is a technical amendment to specify more precisely that the director’s review of a co-decision-making agreement should be against the criteria set out in paragraphs (a) to (e). Amendments Nos. 100, 102 and 103 are related amendments which propose that the director’s view on the outcome of the review will be based on whether or not the criteria have been fulfilled.

The purpose of amendment No. 95 is to correct a typographical error. Amendments Nos. 96 and 97 propose to delete the word "effectively" as it is a subjective term and difficult for a director to assess. Amendment No. 98 is a technical amendment. Amendments Nos. 99 and 101 are related amendments which clarify that the director is forming a view that the necessary criteria do not apply at the time of his or her review of the co-decision-making agreement.The director is not making an assessment as to whether the criteria applied in the past.

Amendments Nos. 100, 102 and 103 are technical amendments that clarify the intent of the provision. Amendment No. 104 is a technical amendment to replace the term "notice" with "notification". The term "notification" is a more correct term in the provision that sets out the director's right to apply to the court for a determination, having notified the co-decision maker that he or she has failed to submit a report or has submitted an incomplete report. The term "notice" relates more to the serving of notice to specified parties of the creation of an enduring power of attorney, for example.

Amendment No. 98 follows on from the change to the heading in the subsection. Amendments Nos. 109 to 112, inclusive, are technical amendments changing "the" to "and". The amendment is needed because a relevant person does not have the status of "the" appointer if a co-decision-making agreement is potentially null and void. Amendment No. 113 is a technical amendment to make clear that the director's investigation will be on the matters that are the subject of the complaint. Amendment No. 114 proposes a time limit of 21 days for a person to appeal a decision of the director that a complaint is not well founded.

Amendment No. 115 is to correct a typographical error. Amendments Nos. 119 to 130, inclusive, are a series of technical amendments intended to make clearer the provisions of section 28. Amendment No. 133 is a technical amendment to specify that the person commits an offence when he or she uses fraud, coercion or undue influence to force another person to make, vary or revoke a co-decision-making agreement. Amendment No. 147 is a technical amendment to make clear that the decisions for which the person needs a co-decision-maker will be those set out in the court's declaration rather than in an application, potentially by a third party, to the court.