Dáil Éireann debate -
Tuesday, 20 Feb 1996

Vol. 461 No. 7

Powers of Attorney Bill, 1995 [ Seanad ]: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time".

Mr. J. O'Keeffe

In the years to come this Bill will be seen as landmark legislation in much the same way as the Wills Act, 1837. Society is changing. Above all, average life expectancy is increasing. There will be, therefore, an ever increasing higher incidence of the elderly who fear that their mental powers may be failing and wish to make sensible provision for such an eventuality. In addition, people injured in accidents may suffer brain damage as a consequence.

People should consider drawing up enduring powers of attorney in the same way they draw up a will. Neither operation is painful or expensive, but in both instances is of enormous benefit to families. The need for this legislation arises from the fact that the power of attorney is automatically revoked when the donor becomes mentally incapable. This is a ludicrous provision because it is when a person becomes mentally incapable that this power is necessary.

There is an increasing incidence of Alzheimer's disease which, I gather, affects approximately 25,000 people in the country. As a consequence, many elderly people are anxiously awaiting the enactment of this Bill so that they can proceed to execute an enduring power of attorney.

In processing this legislation the objective must be to ensure simplicity and keep associated costs as low as possible. While the principal objective of the legislation must be simplicity, safeguards are necessary to ensure that the elderly are not manipulated and that the person exercising powers of attorney does not abuse the positions. In general, the Bill strikes a fine balance between those objectives and I welcome its broad approach. Its provisions can be fine tuned on Committee Stage.

While it may not be very expensive to employ a solicitor to draw up an enduring power of attorney, that will not be the only cost involved. I am concerned about the overall cost structure. The Bill provides that an application for registration must be made to the High Court which could be prohibitively expensive. Will an application to court be necessary in all cases? The Bill provides that notice should be given to various parties prior to registration. While that is the correct approach, would an application to the registrar of wards of court after the issue of notices be sufficient? From the point of view of cost, this option should be explored. If the registrar of wards of court was dissatisfied or if an objection was raised, the matter could then be referred to court.

Why is it necessary to deal with the matter in the High Court? This would involve more expense than if it was dealt with in the Circuit Court? Will the Minister examine the possibility of giving jurisdiction in this regard to the Circuit Court?

Where possible people should register powers of attorney while in full health. If they make arrangements to have their affairs managed by another person if they become incapacitated, the person making the arrangements should be entitled to take whatever steps are necessary. Why must the donee apply for registration? The possibility of a dual system should be considered. This would allow the person giving the power to apply for registration or, if there were evidence of mental incapacity, the attorney could make such application.

The Bill provides that the Minister can make regulations covering many of the major characteristics attached to the power of attorney. It should be possible to tease out the regulations on Committee Stage because they are as relevant as the Bill. A number of the Law Reform Commission's recommendations will be included in the regulations rather than in the Bill and the manner in which they will be implemented should be discussed on Committee Stage. If the Bill passes through Committee Stage and regulations are subsequently published and circulated, they will probably never be discussed, which would be unwise. I am sure all Members want to put in place legislation that will not give rise to unnecessary litigation or dissatisfaction and the best way to ensure that is to hold a comprehensive Committee Stage debate that includes discussion on the regulations.

The State should encourage people to exercise power of attorney if they believe it is necessary. It is understandable that people in the initial stages of mental incapacity would be reluctant to have their affairs aired in public. This is an important aspect of the Bill because such matters could be publicised in a number of ways. Applications to court should be held in private and not reported. In its latest submission on this legislation the Law Society stated: "It is especially important to prevent the publication of details of the donor's mental health or his or her wealth". It would be regrettable if people were reluctant to use the sensible powers available under this Bill because of the danger of publication of details of their personal affairs. I am sure most people would not want details of their mental state or wealth published. While the Ethics in Public Office Bill places an obligation on those in the public arena to publish details of their interests, others should not be forced into that position.

Under section 11, the Bill provides that on registration members of the public may inspect the register free of charge. Will this give rise to the publication of details of powers of attorney in newspapers which at present is the case in respect of wills, details of which are frequently published in a ghoulish fashion? If an attorney proposes to sell a property under such power, the solicitor for the puchaser must be able to ensure that the power of attorney is being exercised properly and that the necessary steps have been taken in regard to registration and so on. Will this allow newspapers to publish details of such registration in a ghoulish fashion? Solicitors must be able to protect the interests of third parties and the Minister should include a measure to prohibit such publication. That would strike the correct balance.

While in order to protect those dealing with attorneys the register must be open to the public, people may be inhibited from exercising such powers if they believe the details would be published in newspapers. I strongly suggest that the Minister give consideration to such an approach.

We are talking about private citizens making private arrangements about their private affairs for the benefit of their families. This is not any business of the media, yet some newspapers poke their noses into the registrations and publish them. They attempt to justify their actions by telling us this is in the public interest. Newspapers should be prohibited by law from doing this. Given the comments made by them about the attendance in the House and the interest among Deputies in various debates, I am sorry no member of the media has sufficient interest in the Bill to be present to listen to the debate. This may be an indication of the interest of the media generally in law reform.

The Bill is landmark legislation. I do not freely give plaudits to Ministers but I compliment the Minister for Equality and Law Reform on bringing this important legislation before the House. Prior to Committee Stage I will raise the issues put on paper by the Law Society, for example, the areas in which the Bill might run into difficulty. The purpose of Committee Stage debates is to ensure that all difficulties are ironed out. I look forward to that debate and commend the Bill to the House.

Mr. O'Dea

I agree with some of the points made by Deputy O'Keeffe about privacy etc. If the Minister does not table amendments to incorporate the necessary changes in this regard then Members on this side of the House will do so. I look forward to Deputy O'Keeffe's support for these amendments.

I welcome the Bill which is the culmination of a public campaign by a number of interested organisations representing the aged and people who suffer from various mental ailments. The campaign has not been the raucous aggressive type of campaign of which we have seen too many examples in recent times; rather it has been a gentle campaign. We were contacted from time to time by various organisations who gently reminded us of the need to deal with this lacuna in the law. The Government subsequently referred the matter to the Law Reform Commission who put forward detailed proposals which by and large are reflected in the legislation.

It is not possible at present to create a power of attorney which will survive the mental incapacity of the donor and the Bill is largely designed to fill that lacuna in the law. Some speakers referred to our ageing population and Deputy Woods pointed out that up to 25,000 people suffer from Alzheimer's disease while approximately 28,000 were referred to the psychiatric services during the last year for which figures are available. The phenomenon of an ageing population and an increase in the number of people suffering from senile dementia is not confined to Ireland. Other countries have responded to the economic pressures created by this phenomenon by privatising services for the elderly. When looked at from one point of view there is an element of privatisation in the Bill. When we were in office the State assisted in the privatisation of part of the care for the elderly by introducing the nursing homes subvention regulations. These regulations have been grossly abused by private nursing home owners who simply jacked up the price for patients who were given a subvention. It is little wonder that applications are made to Limerick County Council and Limerick Corporation every day of the week for new nursing homes. Obviously there is money in this and the State is swelling the private bank accounts of some of those people. While I would not go as far as my ex-colleague, the Minister of State, Deputy Stagg, and describe them as "corrals of death" nevertheless it must be said that the standard of care provided by many nursing homes is much less than what it should be or what we would expect. The supervisory mechanism is also far from adequate and I ask the Minister to take up the matter with the Minister for Health, who I am sure is already aware of the situation but should be reminded of it again. I will take the opportunity to remind him of this on every occasion.

The Bill is the culmination of a public campaign conducted over a number of years. The matter was referred to the Law Reform Commission who took time to study it and put forward proposals which have culminated in this Bill. Despite the fact that this work has been going on for some time or that this specific problem, which has been around for a long time, can be solved in a certain way, it is not clear when the legislation will be brought into operation. I read carefully the Minister's speech but I am still unclear as to when it will come into operation. A number of organisations, particularly my local branch of the Alzheimer Society of Ireland, have been in contact with me but I could not give them an approximate date as to when the legislation will come into operation. Section 1 (2) merely states that the legislation will come into force on such day or days as the Minister shall appoint. There is no time scale and the Minister does not set out a definite period within which he will be compelled to act. The situation is exacerbated by the peculiar provision in section 5 (2) which deals with regulations on matters which are absolutely central to the Bill and how it will operate in practice. It is clear that these regulations will have to be introduced, yet the section merely states that the Minister "may" make provision.

It is not clear from the Minister's speech whether the regulations will be introduced at the same time as the Bill. The regulations deal with matters of such fundamental importance as the format of the enduring power of attorney and the involvement of doctors, solicitors etc. at the time of the execution of the power. These matters should be part of the Bill and subject to scrutiny by both Houses of the Oireachtas. We seem to be dealing with the legislation largely in a vacuum. It is undesirable that regulations which will form a central part of the legislation should be introduced at some indeterminate time in the future without any scrutiny by the Houses of the Oireachtas.

It will be impossible to bring the Bill into effect if the regulations are not in place. If the Minister envisages bringing the Bill into effect without the regulations, what will be the format for an enduring power of attorney? Presumably the people who create an enduring power of attorney and their legal advisers know what they want to create and it will be intolerable if disputes can subsequently arise in the courts as to whether it was an enduring power of attorney.

That will be provided for by regulation, although the schedule to the Bill contains a format for a general power of attorney. If such a format can be written into the legislation, why can not one for an enduring power of attorney? That is incomprehensible. Also, central matters — such as the involvement of doctors, solicitors, etc. so that people know and appreciate the effect of what they are doing — will be provided for by regulations which we have not seen and may be expected to pass the Bill without having seen. That is intolerable and to a large extent it means we are debating this Bill in a vaccum. Will the Minister say why these important matters are being left to be dealt with by way of regulation? When will they be introduced? Will they be available simultaneously with the Bill? Will they be ready for Committee Stage to be scrutinised by the Select Committee on Legislation and Security in the same way that less important sections will be scrutinised line by line and word by word?

The following is another example. In his opening contribution the Minister emphasised the importance of certain people getting notice of the creation of the enduring power of attorney to prevent spurious objections at the point of registration. That is a valid point and the Minister is acting on experience in other countries where such spurious objections have held up unnecessarily the registration of enduring powers of attorney. When we ask what people are to be notified, we find they will be specified by regulations which we have not seen. This means the Bill will be incomprehensible without those regulations being put in place and being available at the same time as we are debating this Bill on Committee Stage.

The Minister also said those entitled to get notice of the creation of a power of attorney would largely correspond to those entitled to notice when application for registration was made. I can understand a time lag between execution and registration of the power of attorney — it could be many years and people may die or disappear in the meantime. However, as regards the categories of people who are entitled to be notified on both occasions, I cannot understand why there should be any differential between the category of people to be informed on one occasion and those to be informed on another. I cannot comment any further because I do not know who must be notified at the time of execution or of registration, since that is also to be provided for in regulations we have not seen.

Section 5 (3) deals with people who are not entitled to be appointed as enduring attorneys or to get enduring powers of attorney, which appears to be confined to bankrupts, people under the age of 18 and nursing home owners in which the donor of the power of attorney is a patient. It seems that if a person does not fall into one of those categories he is perfectly entitled to be appointed and to be given enduring powers of attorney, which is effective management of the estate of someone who becomes mentally incapable. We can take it that criminals, fraudsters, people disqualified from acting as company directors and those convicted of horrendous crimes are all entitled to be given enduring powers of attorney, once they are not bankrupt. The legislation should prevent those convicted of certain categories of criminal offence from being given those substantial powers of management and control over the property of a person who is mentally incapable of managing his or her affairs.

The legislation goes on — in a provision probably included after the initial Seanad debate — to provide that if a person after being given an enduring power of attorney becomes bankrupt, his position as attorney automatically lapses. What of those in the other category? If a person is given an enduring power of attorney and subsequently becomes the owner of the patient's nursing home after the power has been executed, what happens then? Does he stay in that position although he was not fit to be appointed in the first place? It is quite easy for nursing home owners to get around the Bill as drafted. A person can set up a private company to own a nursing home and be the majority shareholder in the company, which drives a coach and four through the intended prohibition in section 5 (3).

The present lacuna in the law, which the Bill is designed to fill, is that if a person becomes mentally incapable, whether or not he has given another person power of attorney, the wards of court procedure must be initiated if his property is to be managed. Everyone who has the remotest connection with that procedure knows it is cumbersome, complex and massively expensive. However, although it could do with substantial alteration, its advantage is that someone who is appointed to manage the property of the mentally incapacitated person is under the supervision of and accountable to the wards of court office, having to produce accounts and answer for his stewardship. Despite the best intentions of the Minister, the Law Reform Commission and others, this Bill provides a measure of privatisation. The State is abdicating responsibility for supervising the management of the property of incapacitated people and allowing it to be done by the donees of enduring powers of attorney. They are private citizens, albeit chosen by the donor, who often will have some connection with the donor and may have a conflict of interest with him in managing the estate.

Those private citizens are given the powers without any supervision. The Bill only states that either the donor, the attorney or another interested party can obtain various orders from the High Court about how someone who has been given an enduring power of attorney is managing the property of the patient, which is an expensive process. Giving such power to the donor is useless because he may be mentally incapacitated and his chances of recovery will be low. Also, the phrase "another interested party" is not defined. That is not an adequate supervisory procedure. For example, if a person abuses the trust placed in him, the donor is not in a position to apply as he is mentally incapacitated, the person abusing his position will not apply to have himself restrained and there may be no one who falls into the category of "another interested party". I ask the Minister to define what that phrase means. Is it confined to someone with a financial interest or a future financial interest, such as the successor in title to the person who is mentally incapacitated? How broad or how narrow is the definition? What is the position of a friend of someone who becomes mentally incapacitated who wants to intervene if he or she sees the person giving enduring power of attorney abusing the trust placed in him by the unfortunate donor?

Ideologically, I am an advocate of privatisation but it can be taken too far and may work against the public interest in many cases. This form of privatisation will work disastrously against the interests of the people the Minister is honestly seeking to protect. I am unsure of the definition of an "interested party" in section 12 (1) and am appalled that the person who will be given the power to manage the property of a mentally incapacitated person will have no statutory duty to act in a fiduciary way — I presume he has the general duties of a trustee in common law but there is nothing written into the legislation to that effect. He has no obligation to submit even the barest form of accounts. He is accountable to nobody unless somebody, who must fall into the category of an interested party, takes it upon himself or herself to go to the High Court every time there is a problem. That is not desirable. The sort of structure I would like to see is a simplification of the wards of court procedure.

I would like to feel that there was even loose or general supervision, some accountability by officials, for example, the Master of the High Court or the Registrar of Wards of Court.

Section 12 (3), which deals with revocation of a power of attorney, is too vague. There should be a proper procedure set out in the Bill for revocation of an enduring power of attorney both before and after registration, and if an attorney is to be remunerated, the terms should be specified in the instrument creating the power.

Section 5 (6) deals with people who automatically cease to have enduring power of attorney. A spouse will cease to have an enduring power of attorney if there is a decree of judicial separation or if the marriage is annulled, but what about a case where a decree of divorce is given, or the person against whom a barring or protection order has been secured, or a person who has simply deserted and abdicated his or her responsibilities?

I agree with Deputy O'Keeffe that all applications should be in private. There is a compelling necessity that applications under this legislation should be in private to prevent public disclosure of the donor's mental state and his or her wealth.

A number of other more technical points come to mind but I will not go into them. They have been brought to our attention by the Law Society and others and they are more appropriate to Committee Stage. However, I ask the Minister to direct his attention to the fact that we are allowing enormous responsibility to be transferred to people who are, in so far as I can ascertain, almost wholly unaccountable for their actions. I would like to see the Minister take another look at the legislation in the light of that.

Ms. F. Fitzgerald

I would like to share my time with Deputy Eric Byrne.

I welcome this Bill and congratulate the Minister on bringing it forward. It is overdue, is complicated and raises many questions.

At first glance it brings to our attention the large number of elderly people in our society. It reminds us of the great difficulties families and individuals face in trying to plan for their future, and the particular difficulties where there is a physical or psychological illness that leads to mental incapacity. This is not just a concern of the elderly but of young people, particularly in the case of accidents.

It also makes us think about the issue of abuse of the elderly. There has been a great deal of comment here about the abuse of children. Health boards have drawn up guidelines and have become vigilant on this issue. We have not been vigilant on the question of abuse of the elderly. In most published reports and research its prevalence is probably underestimated because of the social chain that goes with it. Such abuse does not become a social problem until enough people face up to and talk about it and society recognises the problem. We have been more concerned here with young people and with youth unemployment that with issues afflicting the older age group. However, with the general rise in the population over 65 years of age and a substantial rise in those over 85, concerns and issues relating to the elderly will have to get higher policy priority.

We have also chosen to overlook what we find upsetting. I was reminded again of the inattention to children by a documentary about Goldenbridge and residential care that is to be broadcast on television this week. We are going to have to open our eyes to the issue of abuse of the elderly, given that we now know so much about the patterns of abuse. The Minister should establish a working group to investigate this issue. The Irish Association of Social Workers has called for this and the Green Paper on mental health proposed new measures to help people who are mentally infirm and who are victims of abuse. To some degree this is a side issue to this Bill, but I raise it because the question of protecting the rights of elderly people is critical.

Many people are anxious that their mental powers may be failing or may wish to make sensible provision in the event of their mental incapacity in the future. Young people can also be brain damaged after traffic or other serious accidents. It is interesting to note that in other countries increasing numbers of young people are making provision for enduring powers of attorney at the same time as they draw up their wills. That does not happen much here but it is probably the way we will also go.

What is meant by mental incapacity in section 4 and how is it to be established? I read the Minister's reply to this in the Seanad but I would like to know would it be necessary to obtain affidavits from medical practitioners, as is the case under the wards of court procedure? Will there be a requirement that they be experts in their field, and will there be a requirement that they examine the donor independently?

On section 5, what level or degree of capacity is required to grant a power of attorney? Is it sufficient that a donor understands in broad terms the nature and effect of the enduring power? This was the test established in an English decision, but should the precise level of capacity be specified in the primary legislation?

There is provision in regard to nursing homes. I wonder if persons managing or employed in general and psychiatric hospitals in which the donor is resident should also be excluded from acting as attorneys, because there is always a danger of malpractice in any closed institution, and we must build in as many safeguards as possible.

The explanatory memorandum to the Bill states that it is not an enduring power of attorney if somebody can appoint a successor, but should there be an opportunity for the donor to have power to appoint an alternative person to replace an attorney in the event of the latter dying, becoming bankrupt or separated from the donor? The Minister dealt with this to some degree but I wonder if there is scope for, in some circumstances, not having to go through the procedure again. It is difficult to get a balance, as the Minister said.

There does not seem to be any authority for conferring power in regard to personal welfare matters and especially matters concerning medical treatment. It appears that on these matters it is necessary to make an application to make a person a ward of court. However, in its report No. 231 on mental incapacity and based on its experience of enduring powers of attorney in the English jurisdiction, the English Law Commission proposed the creation by statute of a continuing power of attorney which, subject to certain safeguards, will provide for an attorney to take decisions relating to the personal welfare of the ward. I wonder if the provisions of this Bill should be extended to cover these issues. I realise we do not want to delay this legislation, but the issue of medical treatment is getting more attention internationally and clearly it will have to be dealt with. If it cannot be dealt with in this Bill, will it be dealt with in future legislation?

The donor of the power does not appear to have a right of objection to registration under the Bill. Where the donor of the power objects to registration, the donee of the power should not effect it without a court order. On section 9, what evidence must be adduced of mental incapacity? Is medical evidence to be required and of what nature? It might be helpful to specify the requirements because it would constitute an additional safeguard against wrongful registration. Should the donor of the power have a right to object to registration? Where he or she objects there should be no registration unless the court so orders. I ask the Minister to look at this issue.

Regarding section 11 (1) (a), at common law the donor of the power of attorney can revoke all or any part of a power of attorney without the necessity for court confirmation. The donor of the power should retain this right at common law when he or she has the capacity to so do. A donor should be deemed to have capacity in this regard if he or she understands the nature and effect of what he or she is doing. The English Law Commission makes similar suggestions.

What standard of care must the attorney comply with in carrying out his or her duties? The imposition of a duty to act in good faith and in the best interests of the donor is desirable. In its report on enduring powers of attorney the Law Reform Commission suggested the imposition of a duty to act in good faith. In its recent report on mental incapacity the English Law Commission proposes that the attorney has a duty to act in the best interests of the donor. There is a range of issues that could be taken into account regarding what "acting in the best interests" means and they are outlined in the report I mentioned.

Under section 12 (4) the court may cancel the registration of an instrument on being satisfied that, having regard to all the circumstances, the attorney is unsuitable to be the donor's attorney. The wording of this provision is rather vague and a more precisely drawn supplementary provision providing for cancellation where an attorney behaves in a particularly improper way is desirable. Thus where the donor lacks capacity to do so the court should be empowered either to direct that a purported enduring power of attorney should not be registered or revoke a power where the attorney or intended attorney has behaved or is behaving or proposes to behave in a way that contravenes or would contravene the authority granted in the enduring power of attorney or where it is not and would not be in the donor's best interest. This was made in the English Law Commission report No. 231 on mental incapacity.

This important legislation will be supportive of individuals and their families. We need to ensure that its provisions are clearly explained. It is extremely important to have good quality legal information made available in an easily accessible way to the public, particularly so in this case.

Mr. E. Byrne

I welcome this largely technical Bill, which will provide peace of mind for those who may become incapacitated. It grants powers of attorney over property and will come into effect if a person is mentally incapacitated.

I ask the Minister to make statutory provisions for so-called "living wills" which would enable an individual while still of sound mind and body to authorise persons acting under enduring powers of attorney to make health care decisions on their behalf. This legislation is being introduced almost seven years after the Law Reform Commission reported on the subject. The Minister has tackled a sensitive issue which many of us would rather not tackle.

The provisions of the Bill are likely to affect the elderly and in particular those suffering from that terrible illness, Alzheimer's disease, which is estimated to affect more than 25,000 people in this country. The Bill will also affect those who are mentally incapacitated as a result of a car crash, stroke and so on. It will enable a person to make provision for the management of their affairs in the event of mental incapacity in the future and will ensure the family of the sufferer will not be forced to go through a lengthy, expensive and traumatic procedure to make the victim a ward of court.

The need to provide for enduring powers of attorney has been recognised for some time. We should be conscious that concern has been expressed that such a power could be open to abuse — a donor could be coerced into signing away his or her legal rights and a person's mental incapacity could be exploited. However, having scrutinised the Bill I am satisfied that any potential loopholes which might facilitate such abuse have been closed. I especially welcome the decision to exclude the proprietors and staff of nursing homes from acting as attorneys. I say that with the greatest respect to them but it is important to distance the business relationship of the proprietor of a nursing home from the welfare of the patient.

The Bill comprehensively addresses the granting of the power of attorney to manage an individual's financial and material affairs in the event of incapacity. Given the sensitivity and complexity of the issues it is not surprising that the Minister has refrained from going one step further and addressing the granting of enduring powers of attorney enabling health care decisions to be made on behalf of donors once they are incapacitated. It is a sensitive issue and any legislation dealing with the matter would require detailed consideration and consultation with experts from the legal, medical and other fields.

We must recognise that with medical advances the line between natural and artificial prolongation of life is increasingly blurred. The medical advances in keeping people alive is well recorded. There are some who would not wish their life to be prolonged artificially in the event of suffering an illness or being involved in an accident from which they are unlikely to recover. The time has come for us to follow the example set in other countries to deal with this issue. It would be neither possible nor responsible to rush legislation through. On the contrary, such legislation could only be drafted at the end of a wide ranging debate which would tease out the many ethical, medical and legal complexities surrounding the issue. I hope the Minister will engage in consultations on this matter and after due consideration will bring forward relevant proposals on this delicate and sensitive issue.

Mr. Kenneally

The legal system in this or any other country is at best unfriendly and can appear downright hostile on occasion when it does not allow people to do what they are legitimately entitled to do. The majority of people are not legal experts and hopefully this Bill will make the law on the powers of attorney a little more user friendly. I welcome this legislation which, at its simplest, makes life easier for people and provides peace of mind for those who wish to avail of its provisions. The circumstances which necessitate the application for power of attorney are a drain on the emotional reserves of people at a difficult time in their lives. The proposal to allow a person to make provision early in life for someone to manage his or her affairs in the event of them becoming incapacitated is a humane and compassionate measure. In practical terms, it allows a person, despite later handicap, to be at all stages in charge of their own affairs by being the one to nominate the attorney who will later act for them should the need arise.

It is strange that in a country where the law allows someone to nominate the person who will look after their affairs when they have died, they cannot while in full health select the person who will carry out the more important task of seeing to their legal and temporal welfare while they are still alive and in need of such assistance. In short, many people wish to plan ahead and, in the same way as they make provision for the certainty of death through a will, they must also be allowed to provide for incapacity which may also arise. It is a grave deprivation of rights to be unable to provide for one's own affairs in the event of incapacity. The creation of enduring power of attorney will do this and such a measure is long overdue.

I am disappointed, however, that as the Minister's declared intention is to make life easier for such people, he sees fit to designate the High Court as the place to which application for power of attorney is to be made. The law must be brought closer to the people and the stress and cost of a High Court appearance is an unnecessary imposition on an appellant who may already be under great stress in looking after the physical welfare of the donor.

Greater use should be made of county registrars in this instance. As a body, they have proved themselves more than capable of discharging functions of equal importance and gravity in other spheres. The assets of some of these people, while representing all that stands between them and destitution, may in other circumstances be regarded as quite modest and, in terms of the financial limits of some of the functions of the High Court, such assets would fall far short of what would be deemed an appropriate figure for that court to deal with. People with small estates should not be forced into higher courts.

In many instances, the Circuit Court may be the appropriate forum. However, the less formal surroundings in which county registrars work would be much more appropriate. Will the Minister consider a scale of assets which would dictate the appropriate court to confirm registration? There is little justice in having a major part of the estate swallowed up in legal fees in a court far in excess of what is required.

Accessibility to the law is a pre-requisite for justice and the imposition of a High Court visit does not make the law accessible. If a person decides to exercise this new right while they are in full health, the selection of an attorney is rightly theirs alone and is only to be confirmed by a reasonably formal process. I understand why safeguards may be necessary when the process takes place after the subject has become incapacitated. However, I appeal to the Minister in the present case to keep it simple and allow access to a lesser court or court officer. All the safeguards need to come later when the attorney needs restrictions within which to work.

Under section 6 (6) (a), which deals with an enduring power which is to be exercised by a spouse, such power will cease to be in force if the marriage is annulled in this State or annulled or dissolved validly elsewhere. The introduction of divorce to this jurisdiction, which was allowed by the referendum last November and confirmed by the High Court, may be a factor in this Bill with which the Minister may have to contend. Will he outline his proposals in this regard and make proper provision in the Bill for that eventuality?

A common practice among those who manage their affairs properly is to make a will at a specific time in their lives, such as at the time of marriage. Such people might also execute an enduring power of attorney at the same time to safeguard themselves and their families in later life. There could be a considerable gap between the time of such execution and registration under section 10. All necessary formalities should be completed at that stage.

For example, if a couple married at the age of 25 years and executed an enduring power of attorney, the relative certificates of mental fitness, a statement that the donors are aware of all the obligations and effects of the action and that it is being made without inappropriate influence should be completed at that stage. Forty or 50 years later when the document needs to be registered, the person's doctor may not be alive or available to confirm the state of mental health when the power of attorney was made. Would it be invalid in such a case? Would the forward planning of the donor be set at naught in those circumstances?

The Minister needs to clarify all these points. I agree with my colleague, Deputy Woods, that they should be firmly stitched into the legislation or, at least, regulations at this stage rather than having to have a second bite at the cherry later.

Minister for Equality and Law Reform (Mr. Taylor)

I am grateful to the Deputies for their general welcome for this very important social measure and their very helpful and constructive comments on various aspects of the Bill. I will bear in mind all that has been said between now and Committee Stage.

This Bill is timely and fulfills an urgent need. At present, a power of attorney ceases to be operative where a person becomes mentally incapable. The Bill proposes to introduce a further power of attorney, namely an enduring power, which will be separate from, but may be complementary to, an ordinary power of attorney.

Increasingly, we see the plight of elderly people and their need to have some responsible person look after their affairs when they arrive at this point in their lives. This Bill will enable people to do just that by permitting them to appoint a person or persons to look after their affairs should they become mentally incapable. However, I stress the point that the contents of the Bill are not just of interest to elderly people and those who look after them. I hope that eventually the drawing up of an enduring power of attorney would be seen in much the same light as that of making a will.

Deputies Woods and O'Dea made a couple of interesting points in their welcome for the Bill. They suggested that persons convicted of certain crimes and disqualified directors of companies should be debarred from acting as attorneys. That is a useful suggestion and I will bring forward a suitable amendment on the question on Committee Stage.

They also asked for those matters which are proposed to be dealt with by regulations under section 5 to be spelled out in the Bill itself. The difficulty with doing so is that in this Bill we are entering a new branch of the law and the measure of flexibility provided by regulations is very desirable. The form of enduring power will be a complicated document. It must contain adequate information as to the effect of creating or accepting the power. Both the form of the document and the information it has to contain are of the greatest importance. Care will be needed in the drafting but there can be no guarantee that experience will not show that amendments may be necessary. In fact, that is exactly what happened in another jurisdiction. It is essential in the interests of those who will be affected to retain a regulation making power for the matters referred to in subsection (2). This will not delay the coming into operation of the Bill. I hope to have the regulations ready at, or about, the time the Bill is passed.

Deputy Woods suggested the Bill should provide that where two or more attorneys are appointed and where the instrument is silent as to their status, it should be presumed that they have been appointed as joint attorneys. This was one of the recommendations of the Law Reform Commission. The form of enduring power to be prescribed under section 5 (2) will make it clear that attorneys are to be appointed either as joint attorneys or joint and several attorneys. I see merit however in Deputy Woods's suggestion and I assure him I will give the matter careful consideration between now and Committee Stage.

Deputy Woods advocated the extension of the Bill to authorise persons acting under enduring powers of attorney to make personal welfare decisions on behalf of donors once they become mentally incapable — Deputies Frances Fitzgerald and Eric Byrne also raised this question. That would constitute a substantial change in the Bill which is confined to the management of donors' property and financial affairs. These personal welfare decisions could relate to very sensitive areas such as medical treatment. Provisions to deal with those aspects would need to incorporate safeguards for the various circumstances that could arise and would necessarily have to be elaborate. I will give further consideration to the matter but I would be reluctant to do anything that might delay the measure, which is awaited by many people.

Deputy McDowell raised the question of imposing on an attorney a positive duty to account. Deputy O'Dea also referred to that matter. Section 12 (2) empowers the court to give directions about the rendering of accounts by the attorney and the production of the attorney's records. That is an important matter and I will see whether I can strengthen the Bill's provisions in that respect. Deputy McDowell asked that section 5 (6) be amended to cover divorce as a valid reason for invalidating an enduring power. I agree that is necessary and I will consider appropriate legislative provision if and when the divorce legislation is introduced.

On the question of providing for one instrument to cover both an enduring power and an ordinary power, such a provision would complicate the procedure and lead to uncertainty. The object of the Bill is to make the enduring power come into operation only when the donor is, or is becoming, mentally incapable and to have that present in the mind of each donor when he or she is deciding to grant the power. If a donor wishes to give an ordinary general power of attorney at the same time there is no difficulty in doing so. The Bill provides an extremely simple statutory model for such a power.

Deputy O'Dea said that the Bill involves privatisation in that it enables a private person to be appointed as attorney, as opposed to the present position where the office of wards of court conducts this business. The answer to his question was well given by his colleague, Deputy Kenneally, who rightly asked, given that a person may appoint an executor to deal with their affairs after death, therefore a fortiori why should a person not be in a position to appoint a member of their family, or whoever they think appropriate, to deal with their affairs while still alive although suffering from mental incapacity.

The overall factor must be borne in mind that the appointment of the attorney, whether under an ordinary or enduring power of attorney, is the voluntary decision of the person who grants it — the person must be in a good state of mind when they make the appointment. Nobody is compelled to appoint a person as their attorney. Obviously any person appointing an executor or an ordinary or enduring power of attorney should have very careful regard to and must take careful advice on the bona fides and worth of the person whom they appoint.

Other points of detail were raised. Deputy Francis Fitzgerald asked what precisely should be the level of mental incapacity that would apply. That definition is given in section 4. We will discuss these and other points raised in greater detail on Committee Stage.

I thank all Deputies who contributed for their warm and heartening welcome for the Bill and I look forward to further debate on it in the Select Committee on Legislation and Security.

Question put and agreed to.