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

There will be enough concern in respect of this legislation among families who have somebody with a disability. I now am speaking directly to the people with that experience because I acknowledge there is concern that this somehow is going too far or that it is giving a level of discretion to certain people who do not have capacities. While I accept this, the type of language expressed by the Senator really is not helpful.Clearly, if someone does not have capacity, which is very rare, and does not have relations or a circle of friends to call on, the court will appoint. It will do so on the basis that the person it is appointing will have responsibility for the well-being of the person concerned, including his or her financial property and welfare. That is essential.

Everyone has the right to make a wrong decision. We hope to have people around us who love and respect us, who will be charged with caring for us and directing us. This is something we need to get our heads around. The director of the decision support service will be obliged to give financial information. It would not be appropriate for a special visitor to give that advice. For instance, what would happen if it did not work out? Would the person concerned be held liable? The director can give advice on financial matters and the possibilities in that regard rather than directing someone to invest. We all make these decisions every day. With enough support and decision makers around us, even people with limited capacity will be able to make them.

The courts will appoint a suitable person and the director will accommodate by ensuring it is someone from a panel who will be an accountant or a fund manager and will have the expertise required to manage extensive funds. It is important that Senators realise we have made provision to cover all possibilities. We have been formulating the Bill for three years and there is not a single issue we have not come across or addressed. It is not the first time we have come across this issue. We all have. The special visitor would not be the appropriate person to do this as his or her remit is entirely different; it is to ensure the person concerned is properly looked after and, where there is an investigation to be held, that it takes place. The co-decision maker or person appointed to support the person who lacks capacity has to make a statement every single year, not to the courts but to the director. If he or she is appointed to advise on financial issues, he or she will have to make a statement to the director on those financial affairs. If the issue concerns health, welfare or other aspects, that is different. He or she has to make a return every single year to the director and, if the director finds that this has not happened, he or she will have the power to either remove the person or investigate the matter. There are extensive powers for the director and extensive safeguards for the relevant person. This needs to be understood.

There is not a single element in terms of amendments, suggestions or contributions of which we have not thought. Where we had not thought of something and where it was new and possible, we brought it forward by way of an amendment.