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

I propose to address amendments Nos. 41, 42, 48, 50, 55, 58 to 65, inclusive and 68 to 70, inclusive, together. These proposed amendments relate to the new enduring powers of attorney provisions that were inserted on Committee Stage. They are mainly technical in nature, seeking to rectify typographical errors or to clarify the intent of the provision. A number of them replace the term “enduring power of attorney” with the more correct term “an instrument creating an enduring power of attorney”. The review of these provisions in preparation for Report Stage revealed the amendments needing to be made to the provisions already agreed.

Amendment No. 41 is a technical amendment. It clarifies that the signatures of the witnesses to the creation of the enduring power are to be in the instrument that creates the enduring power and not within the enduring power itself.

Amendment No. 42 is a technical amendment that clarifies that the donor executes an instrument that creates an enduring power and not an enduring power.

Amendments Nos. 48, 55, 60 and 64 are technical amendments that clarify the intent of the provision. Amendment No. 50 is a technical amendment that clarifies the intent of the provision. The attorney must send a copy of the instrument that creates the enduring power and not just the enduring power itself to all those listed in subsection 3 of the new section 60 when he or she applies to register the instrument.Those being notified of the application to register an enduring power must have access to all the supporting documents, such as the statements from the medical professionals regarding the capacity of the donor, etc., that are necessary in order to create and register an enduring power. This is to ensure they have all the relevant material in case they have any reservations or doubts about the validity of the power and wish to object to the registration and the coming into effect of the power.

Amendment No. 58 is a technical amendment that clarifies the intent of the subsection. The director will establish and maintain a register of instruments creating an enduring power. The instrument will include the enduring power and all the relevant back-up material such as the statements by the donor, the attorney and the various professionals regarding the capacity of the donor.

Amendment No. 59 is a technical amendment to provide that the director may send a copy of the instrument creating the enduring power, and not just the enduring power, to those who have a legitimate interest in obtaining a copy of the instrument. Amendment No. 61 is a technical amendment to provide for the deletion of subsection (2) of the new section 66 which was inserted on Committee Stage by amendment No. 186. The revised text takes into account that it is an instrument that creates an enduring power which is registered and not just the enduring power itself.

Amendment No. 62 inserts text into subsection (6) of the new section 67 which was inserted on Committee Stage by amendment No. 187. New section 67 deals with the reporting obligations of attorneys. The amendment provides that if an attorney fails to submit to the director a schedule of the donor’s assets and liabilities and a projected statement of the donor’s income and expenditure within three months of registration of the instrument creating the enduring power, or if he or she fails to keep proper accounts, the director must notify the attorney of his or her failure to comply and to give him or her time to comply or to submit a report.

Amendment No. 63 proposes the deletion of subsections (10) to (13), inclusive, in section 67 that were inserted by way of amendment No. 187 on Committee Stage. The new section 67 expanded the reporting obligations of attorneys of enduring powers, especially in relation to financial affairs, and it applied those obligations to attorneys of enduring powers that have been created under the 1996 Act but have not yet been registered. When I submitted amendment No. 187 on Committee Stage, I thought it was possible to include attorneys appointed in an enduring power created under the 1996 Act but not yet registered. However, I have received legal advice which sets out that imposing the new reporting obligations on attorneys who were appointed under a different law could carry constitutional risks.

In many cases the new reporting obligations will become apparent to the attorney only when the donor has lost capacity and when the attorney applies to register the power. There is a risk that an attorney might decline to take on the additional reporting obligations and might disclaim the enduring power, leaving a vulnerable person without the support of the attorney whom he or she had specifically chosen to take decisions on his or her behalf. Equally, it is not possible retrospectively to require a spouse, appointed as an attorney under the 1996 Act, to comply with reporting requirements that might involve reporting on his or her own assets and property. It should have been obvious, but it was not. While we may not be able to impose the new reporting obligations on the attorneys appointed under the 1996 Act, the new complaints mechanism in relation to attorneys will apply to all attorneys. The complaints mechanism will apply to those appointed under the provisions of the Bill and those appointed under the 1996 Act. This will be an important protection for all donors.

Amendment No. 65 is a technical amendment which clarifies that it is the instrument which is registered and not the enduring power. Amendment No. 68 is a technical amendment to insert additional matters that must be prescribed by the Minister. These were inadvertently omitted on Committee Stage. Amendment No. 69 is a technical amendment to correct an incorrect cross reference and is a consequence of amendment No. 63. Amendment No. 70 is a technical amendment to add a cross reference.