Amendments Nos. 1, 3, 15, 19, 23 and 28 form a composite proposal. Amendment No. 20 is related and amendments Nos. 21 and 22 are consequential on amendment No. 23. Therefore, amendments Nos. 1, 3, 15, 19, 20, 21, 22, 23 and 28 may be taken together by agreement. Is that agreed? Agreed.
Supplementary Estimates, 1996. - Powers of Attorney Bill, 1995 [Seanad]: Report and Final Stages.
I move amendment No. 1:
In page 4, between lines 14 and 15, to insert the following:
"‘affairs', in relation to a donor of an enduring power, means business or financial affairs of the donor,".
Deputy Woods urged on Committee Stage that personal care and health decisions be provided for in the Bill. He has retabled amendment No. 20 to that effect. I said then the extension of the powers of an attorney to such matters would involve issues of the greatest sensitivity and that it would be wrong to amend the Bill before the matter had been researched thoroughly and there had been extensive consultations. Even if there was agreement that such an extension would be desirable, major amendments to the present text would be necessary to deal with various situations which could arise, particularly in the area of health care. I remain of the opinion that an amendment to the Bill to include health care decisions should not be made until the matter has been thoroughly researched.
We all want the Bill to be enacted and brought into operation at the earliest date possible. However, I am impressed by the case made for enabling donors, if they so wish, to authorise their attorneys to act on their behalf in some personal care matters to be specified in the enduring power. The amendments I have tabled will enable this to be done. The amendments specify a list of personal care decisions and require the donor to choose which ones to delegate to the attorney. The list is given in amendment No. 3 and it contains the kinds of important personal care matters which arise in practice when a donor becomes mentally incapable, such as where the donor should live and applications for housing, social welfare and other benefits for the donor.
The amendments provide specific safeguards relating to the exercise by an attorney of the authority to make personal care decisions. Under amendment No. 19, any personal care decisions must be taken in the donor's best interests and guidance is given as to how those interests are to be determined. For this purpose regard must be had, for example, to the past and present wishes of the donor, so far as these are ascertainable, and to the factors which the donor would consider if he or she were able to so do. Also, other specified persons would have to be consulted, so far as practicable and appropriate, on their views as to what the donor's wishes and feelings might be, and on what would be in the donor's best interests. Those persons are anyone named by the donor as someone to be consulted on such matters and any other person engaged in caring for the donor or interested in the donor's welfare.
The exercise by the attorney of the authority to take personal care decisions will be subject to supervision by the court in the same way as decisions in relation to business and financial affairs. Amendment No. 28 enables the court to give direction about a personal care decision which is contemplated by an attorney or which is being put into effect. Applications to the court for such directions can be made in a summary manner by, or on behalf of the donor, the attorney or any interested person.
Amendment No. 15 is based on the view that a donor should be left as free as possible to appoint whomsoever he or she wishes to carry out personal care decisions. The enduring power should only be invalidated if the designated attorney is subsequently convicted of an offence against the person of the donor, or becomes the owner of a nursing home in which the donor resides. In other words, the attorney's bankruptcy, conviction for fraud or dishonesty or disqualification as a director should not automatically invalidate the enduring power, as it would in the case of an enduring power relating to the donor's business or financial affairs. I stress "automatically" because it is always open to those notified of the execution of the power to object to its registration on grounds of unsuitability when the attorney seeks to have it registered and brought into force.
A consequential amendment, No. 23, is necessary to section 7 to enable an attorney who has applied for registration of a power to make a personal care decision which cannot reasonably be delayed until the application has been determined. That situation, which would undoubtedly occur in practice, has to be provided for because the attorney has to give five weeks notice of intention to make an application to persons such as relatives who may wish to object to the registration.
That leaves amendment No. 1 which is a technical amendment to make it clear that the word "affairs" in this context is confined to business and financial affairs so that the authority for personal care matters, which an attorney may be given under an enduring power, will extend only to those matters specified in amendment No. 3.
It will be clear from what I said that I cannot go along with amendment No. 20 in the name of Deputy Woods in so far as it would allow an attorney to exercise health care decisions if only because to do so would delay unduly the enactment of this legislation. I hope, however, he will accept that I have gone a fair bit of the way with him. My amendments will make a substantial improvement to the Bill and will strengthen the position of those attorneys who have to care for those who become mentally incapable. I commend the amendments to the House on this basis.
We accept these amendments and thank the Minister for giving so much attention to the issue and taking so much care. He has gone a good way to meet the points we raised. I welcome his decision to look at the other issues in the long-term.
Amendment No. 1 to the interpretation section states:
In page 4, between lines 14 and 15, to insert the following:
"‘affairs', in relation to a donor of an enduring power, means business or financial affairs of the donor',".
I am concerned that this definition is somewhat narrow. Should it include a reference to any transaction concerning the donor's real or personal property? I appreciate what the Minister is doing, but I am concerned that the amendment he proposes might be better if it were not as narrow and were somewhat broader along the lines I have suggested.
Amendment No. 3 defines the term, "personal care decision". It meets our proposal as set out in amendment No. 20 and limits what is meant by a personal care decision. Amendment No. 19 sets out how a personal care decision is to be exercised by an attorney. Our definition is, as the Minister said, much more open. However, we accept the Minister's amendment as a major step towards what we sought in our amendment.
The Minister's definition does not include any provision for taking decisions about medical care. For example, who decides whether there should be an operation? Is it the next of kin? In effect, the donor, in appointing the attorney, has given precedence to the attorney. The Minister referred to this and I know he is aware of the problem and will look at it further.
We accept the Minister's amendments, and consequential amendments Nos. 19, 20, 22 and 23, some of which are technical. Amendments Nos. 19 and 20 deal with personal care; amendment No. 21 provides for various steps to be taken; amendment No. 22 is a technical amendment; amendment No. 23 is acceptable and amendment No. 28 allows the court to give directions on a personal care decision and is, therefore, linked with amendment No. 3.
We had anticipated many of these links and are happy with what the Minister is doing. The Bill is considerably improved and I thank him for the steps he has taken in this regard. We support the amendments.
I also thank the Minister who has gone a substantial way to meeting our suggestions. Everybody will agree the Bill is better following the acceptance of the amendments he has introduced after listening to the persuasive arguments made on Second and Committee Stages.
The legislation provides for the right of somebody, called a donor, to give somebody else, called a donee, the power to manage his or her affairs. In accordance with the terms of the legislation, that power will survive the future incapacity of the person who gives it. It will be found in practice that the vast majority of people who create an enduring power of attorney will be those who anticipate that, at some future time, they will be unable to manage their own affairs.
The point we made to the Minister on Second and Committee Stages, which he has now substantially accepted, is that if a person is to be allowed give somebody else the power to manage his or her affairs in the event of future incapacity, it should not be confined to their business or financial affairs or matters dealing with property or money. Rather, the person who anticipates that at some stage they may become incapacitated in the future should also have the right to create provision for future housing needs and other matters such as rehabilitation and welfare. The Minister has provided that this can be done.
The Minister advised that he could not include the provision about health care because it would delay the Bill unnecessarily. This aspect is vitally important and may be the major factor in the mind of the person creating the enduring power of attorney. I must accept the Minister's word on this, but, perhaps, he will explain why it should be the case. He indicated that he was sympathetic to our proposal and that he would do something in the future, if possible, when whatever problem exists at present disappears. This would include a provision along the lines that the power of attorney should also give the person who gets it — the donee — the right to provide for future medical care and take medical decisions affecting the donor of the power of attorney after that person has become incapacitated and when the power of attorney comes into operation.
I thank the Minister for the substantial improvements he has made to the Bill as originally drafted. It is necessary that those who will be creating enduring powers of attorney are people who anticipate that, at some stage in the future, they will become incapacitated and, therefore, unable to manage their own affairs. These improvements give much wider flexibility and powers to the person created attorney on their behalf. Will the Minister explain how a provision to enable such people look after medical needs and take medical decisions with regard to the donor of the power of attorney is going to unduly delay the legislation? What is his attitude to including a provision along these lines in the future?
I thank Deputies Woods and O'Dea for their kind comments which I appreciate. It has always been my policy to accept worthwhile suggestions, irrespective of where they originate. In this respect I am grateful to Deputies Woods and O'Dea for the suggestions they made.
The point about the definition of the word "affairs" is reasonably adequate. "Financial affairs" covers a pretty wide spectrum. All the financial affairs of the donor are included there, specifically his business or financial affairs. Again, section 6 (1) gives authority over all the property of the donor, which of course would include all real or personal property, but the entirety of the financial affairs of the donor are included in that definition.
It must be remembered that these are optional provisions, and it may well be that the person who is given the power over the property and financial affairs of the donor may be a person totally disconnected from the family. It could be the person's solicitor, accountant or a business colleague.
The question of including health care is a different matter. I do not say that it might not be appropriate to have some provision there to deal with it, but it does and would require more careful examination and consultation than we have had time to give it within the time available since Committee Stage. It would require consultation with medical authorities and a number of organisations before one could decide on what the pitch ought to be in that regard. It is not something which I rule out for a future date, but we have made very substantial progress as we are providing for the first time for enduring powers to deal with business affairs.
I have taken on board the very worthwhile suggestion about personal care provisions, which are set out in items (a) to (g) of amendment No. 3 and cover quite a wide range of activities. Health care is tricky. It can involve difficult operations, such as putting people on and taking them off life-support machines. There may be a role for it. I do not say there is not, but it would have to be approached with a good deal of care and research.
The other option was to hold up the enactment of this measure until that research had been completed and carried out but that would have taken an undue length of time, and I know Deputies on all sides of the House were most anxious to get this Bill into law as quickly as possible. For that reason the amendment comes in this form.
Amendment No. 2. Amendments Nos. 24, 26 and 27 are related. Therefore, amendments Nos. 2, 24, 26 and 27 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 2:
In page 4, line 18, to delete "High Court" and substitute "Circuit Court".
Over the past 15 to 20 years there has been a policy, in so far as possible, to give jurisdiction to the District Court and the Circuit Court which are located in the regions and easily accessible. From the point of view of families, the practical benefit of giving jurisdiction to the Circuit Court is that it avoids the legal costs which arise in the High Court. It is particularly important in this Bill where the assets of a donor are unlikely to increase when the enduring power of attorney becomes effective, and any litigation will reduce the overall fund available to care for the donor.
We do not accept the Minister's argument that it is necessary to give this jurisdiction to the High Court because of its experience with mental incapacity. The Circuit Court has jurisdiction over a vast area of Irish law and the Courts and Court Officers Act, 1995, has given increased powers to the county registrars of the Circuit Court.
The Minister said that the vast majority of ordinary applications under this Bill will be purely administrative and dealt with by the Registrar of the Wards of Court. This may well be the case, but one only has to look at section 12 of the Bill, which deals with the functions of the court, to see the wide range of situations in which an application may have to go before a court — there are at least 20 separate instances.
We made this proposal because we were concerned about lowering the costs to the donor and family, and providing reasonable access on a regional basis. We are anxious that people who make these arrangements will have access to the Bill's provisions and to the courts on a relatively simple and inexpensive basis where that is necessary. It is part of the general thinking on decentralisation and making services available to people locally.
The Minister has not accepted our proposals to date in this regard. I know they may be regarded at present as radical, but we should look ahead and make court access as simple, easy and near to people as possible. We put down this amendment for these reasons and I would be interested to hear the Minister's comments.
Must the Bill still go to the Seanad or has it come from the Seanad?
It has come from the Seanad.
Even at this very late stage I appeal to the Minister to change his mind on the matter. I am mystified as to why somebody must go to court to apply to have a person registered as an——
He does not.
Under section 9, somebody must go to court.
Not in the normal course. It would be done in the office on an administrative basis.
That is the registration itself, but surely the application for registration must reach the court.
No. Not in the normal course; only if there is a difficulty.
Section 9 (1) states:
If the attorney under an enduring power has reason to believe that a donor is or is becoming mentally incapable, the attorney shall, as soon as practicable, make an application to the court for the registration of an instrument creating that power.
The application is addressed to the court. It is rather similar to the probate application procedures.
I accept what the Minister says and I am glad that is the case. However, under section 12, if a difficulty of any sort arises, the matter must be referred to court and the appropriate court is the High Court
Incidentally, the people who can make an application under section 12 would be the attorney, the donor if he is mentally capable of doing so or any other interested party. I do not think the Minister has defined the term "interested party" so I do not know what the term means here, whether it is somebody who happens to be a good friend of the relative or the donor or whether it must be somebody who is financially interested. Will the Minister clarify that matter?
The range of problems on which a person must make application to the High Court is quite staggering. For example, anybody who is concerned and wants to raise a matter relating to the management or disposal by the attorney of any of the property — perhaps even a relatively small amount of property — must go to the High Court. If somebody is worried, for example, that the accounts are not in proper form and a more professional and comprehensive set of accounts are needed, he or she must take that matter to the High Court. In many cases it will not be financially worthwhile. The section also states that the court may "require the attorney to furnish information or produce documents or things in his or her possession as attorney". There is also some provision in the Schedule whereby if the attorney wants to dispense with giving notice to some party about the creation of the power, that matter also has to be referred to the High Court.
It is no argument to say this should be so, simply because the High Court has traditionally held jurisdiction in matters relating to mental incapacity. I recall having made this point ad nauseam when we debated the Companies Bill, 1990. All these references to the High Court made matters prohibitively expensive. I have since come across many cases in practice where matters would have been referred to the Circuit Court if possible, but they had gone beyond the point of diminishing returns and so it was not financially worthwhile to refer them to the High Court.
The Minister should bear in mind that in many cases the estate can be relatively small and it would not make financial sense to consistently refer such cases to the High Court. I have every confidence in the members of the Circuit Court bench who could deal more than adequately with this. In fact, the County Registrar could adequately deal with many minor matters that arise, but which have to be referred to the High Court. To put it in context, the civil jurisdiction of the Circuit Court is now quite extensive, and the criminal jurisdiction of the Circuit Court covers everything except murder, treason and piracy which rarely arises.
On Committee Stage I used the analogy that if Mr. Nick Leeson, the culprit in the Barings Bank case, was charged here with the offence of breaking Barings Bank, he would have his case tried in the Circuit Court. It is extraordinary that somebody who commits a crime of that magnitude can be dealt with by the Circuit Court, whereas if somebody is worried that an attorney is producing an insufficiently comprehensive set of accounts, he must take his case to the High Court. In many cases the matter will falter and procedures will be unworkable.
The costs incurred in going to the High Court would be prohibitive. It is a powerful disincentive. In many cases, especially when the estate is relatively small, if people have doubts, qualms or difficulties they will ask a solicitor how to sort the matter out. The solicitor will say the matter must be referred to the High Court under the legislation, and the people concerned will then say "forget it".
There is a need for section 12 or a similar section in the legislation as no doubt difficulties of this sort will arise. We can all imagine how they will arise in practice, but the vast majority of difficulties will be of a relatively minor nature, fairly small queries, about matters such as accounts or where a certain document will be produced. It is unreal to require someone to refer it to the High Court. In many cases when people feel an injustice is being done, or something is being done that should not be the thought of going to the High Court will create such a disincentive that they will not go.
The requirement in section 12 to refer a case to the High Court will render it inoperable and useless for many people who will not avail of it. Even though our amendment states these matters should be referred to the Circuit Court, some effort should have been made in drafting the legislation to distinguish between the different matters about which people can raise queries. Some of them might be appropriate to the Circuit Court at most, but many of them will be appropriate to the County Registrar who can deal with such matters without any cost being incurred by the person raising the query. I urge the Minister to reconsider that at this late stage.
The case made by Deputies Woods and O'Dea is one to which I would be sympathetic in principle. I have always been in favour of giving as much jurisdiction as possible to the lower courts. However, I can only reiterate what I said on Committee Stage, that in the present case the procedure set out in the Bill for the registration of enduring powers of attorney by the registrar of wards of court is the right one.
We are dealing with an entirely new jurisdiction. It would be prudent to entrust it to the High Court and its officers who have wide experience in the related area of mental incapacity. That will ensure that a consistent approach is adopted to all applications for registration and to questions arising from them. It will also mean there will be a centralised register of all enduring powers. The ordinary straightforward application for registration will be a purely administrative procedure to be carried out by the registrar of wards of court with no involvement by the court.
It is most important that we should not take chances when conferring this new jurisdiction so that the Act can be relied upon to operate smoothly and consistently in fairness to the donors concerned and in the interests of ensuring as far as possible the proper management of their property while they are mentally incapable. Deputy O'Dea said he thought the costs would be staggering.
That is right.
I disagree with that. I want to draw the attention of Deputies Woods and O'Dea to a provision concerning applications which was inserted at my instigation in section 4 (2) which states: "an application or reference to the court under this Part shall be made in a summary manner." That is there for a purpose. It means, in effect, that the normal panoply and expense involved in High Court actions does not apply.
A summary procedure is to be used which means that one simple notice of motion application document is all that is used, and a response mirroring the procedure that would apply in the Circuit Court. I am not saying there would not be a difference between such a notice of application in the High Court and one in the Circuit Court. There would, but it would not be enormous because it is the most simplified procedure one could have.
I have specifically provided that any applications that arise — and I do not envisage there would be that many — would not be dealt with in the normal extensive pleading procedures that apply in the High Court, but in a summary procedure. For practical purposes that means one application document, a simple notice of motion in the High Court. It would be exactly the same form one would use in the Circuit Court. In the normal case a junior counsel would draw it up. The solicitor would draw it up in the same way as would the junior counsel, but it would say High Court on the form instead of Circuit Court. The differential in costs between the two would be marginal. The overwhelming bulk of cases will not involve a court application.
As I envisage it, the whole procedure would mirror probate procedures. As Deputies know, when applications are made to probate a will, the papers are addressed to and lodged with the registrar of the probate office of the High Court to be dealt with there. My guess is that 98 per cent of will applications are dealt with and grants of probate are issued through the office. It is an exceptional case that has to go before the court. I envisage these applications would be mirrored there and that only a small proportion of cases would actually go before the court.
Consequently applications may be made by interested parties. That would arise out of the administration of the powers of attorney. Applications could be made on a variety of bases. I have covered that as best I can by providing that all these applications are not to be made in the normal costly procedures of the High Court, comprising a plenary summons and a statement of claim, but in a simple summary procedure. It will involve one document of application, a response and going into court straight away on the return date given. This mirrors pretty much the procedure in the Circuit Court.
Deputy O'Dea asked what is the definition of "interested party". We have not put in a specific definition, but it means what it says — any person who has an interest is an interested party. Any person who has a connection, concern or interest may bring the application. It is cast wide and is intended to be so.
I thank the Minister for his contribution on this amendment and for the steps he has taken, as outlined. The thought of going to the High Court can be off-putting. I approach this from the view point of subsidiarity. When this debate finishes the Minister for Finance will come into the House to tell us how to be more efficient in terms of our administration and talk about implementing the principles of subsidiarity in the Civil Service and elsewhere. From that view point, our amendment is right and "Circuit Court" should be substituted for "High Court". While I accept the Minister has gone some way to meet and simplify the administrative arrangements as far as possible, we will press the amendment.
I move amendment No. 3:
In page 4, between lines 26 and 27, to insert the following:
"‘personnel care decision', in relation to a donor of an enduring power, means a decision on any one or more of the following matters:
(a) where the donor should live,
(b) with whom the donor should live,
(c) whom the donor should see and not see,
(d) what training or rehabilitation the donor should get,
(e) the donor's diet and dress,
(f) inspection of the donor's personal papers,
(g) housing, social welfare and other benefits for the donor,".
I move amendment No. 4:
In page 4, line 41, to delete "may" and substitute "shall".
If this amendment were accepted, section 5 (2) should read: "The Minister shall make provision by regulations in relation to any or all of the following matters". There is no reason the Minister should not delete "may" and substitute "shall" and, therefore, make a commitment. The amendment does not state when he should do so. I have no doubt the Minister intends to make provision by regulations in relation to matters concerning enduring powers of attorney, including their form and execution, documents to be included and so on. We look forward to that. I am sure he will proceed expeditiously in making these regulations. There is no reason he cannot accept the word "shall" instead of "may".
I thought the Minister said on Committee Stage that the regulations would be ready to coincide with the introduction of the legislation. At what stage are these regulations? The regulations go right to the heart of these new proposals. They deal with the form and execution of enduring powers of attorney and ensure a statement by the donor that he has all the information and understands what he is doing and one by a solicitor that he or she is satisfied that the donor understands the effect of creating the power. There is also provision for a statement by a registered medical practitioner. If the Minister is to include in regulations these things which he knows are necessary, what will happen if this legislation comes into force without these regulations being in place?
I do not understand why these provisions are not included in the Bill. The Minister, for his own reasons, wants to do this by way of regulation, which is fine. However, I would like his assurance that these regulations will be in place before the Bill comes into operation. In view of the fact that this legislative proposal is the culmination of a long campaign — many people have waited patiently for a long time to see this provision in force — will the Minister assure us that the regulations are ready and that the Bill will be in operation at an early date together with the regulations?
I am advised that the word "may" is correct in this context. The Minister is being given the power coupled with a duty to make regulations without which this part of the Bill cannot function. As a practical matter, whether we say "may" or "shall", the regulations will be made. Deputy O'Dea asked about the present position as regards the preparation of the regulations. I sent the draft heads of the regulations to the Law Society and the Dublin Solicitors Bar Association. My Department is now considering their comments. I have no doubt that the regulations will be finalised shortly so that they can be made and the Act brought into operation soon after it becomes law.
We will not press this amendment. The Minister could have accepted the word "shall" instead of "may", which would place a clear obligation on him to bring in the regulations. We look forward to these regulations. I note the Minister has consulted with legal people, but this is a customer oriented service. He should remain in the House after this debate to hear the Minister for Finance discuss customer driven relationships. When finalising the form of these regulations, I ask him to bear in mind users and make sure the regulations are simple enough for them. Legal people will probably understand them. I advise the Minister to keep things simple and not only consult with the legal people.
Recommital is necessary in respect of amendment No. 5 as it does not arise out of Committee proceedings.
I move amendment No. 5:
In page 5, line 20, after "that" to insert "in his or her opinion".
This is a drafting amendment.
There is no mathematical certainty; this is a matter of professional judgment. This amendment improves the section.
I move amendment No. 6:
In page 5, line 32, after "attorney" to insert "in the presence of two independent witnesses".
This amendment relates to the attestation of the signatures of the donor and the attorney. The amendment proposes that it be done in the presence of two independent witnesses in the same way as a will. The donor will not be able to give evidence as to whether the document is valid or to explain the intentions by the time the power of attorney comes into operation. When we discussed this question earlier, the Minister said it would be made clear in the regulations. It is a question of providing the same kind of witnessing as that provided in the case of a will. Although the Minister said he was not in favour of this change, I would like to hear his views.
Deputy Woods proposes that the regulations should provide that the donor's signature and that of each attorney should be witnessed by two independent persons. I understand the case the Deputy is making, but I am not convinced it is necessary to insist on having two witnesses to those signatures. I also foresee some difficulty in defining which witnesses would be independent. One witness should be sufficient and this is what I propose to provide in the regulations.
The regulations will require a statement by a solicitor to be included in the document that, after making any necessary inquiries, he or she has no reason to believe the document is being executed by the donor as a result of fraud or under undue pressure. There will also be a statement by a doctor that the donor had the mental capacity to understand the effect of creating the power and a statement by the attorney that he or she understands the duties and obligations involved.
The operation will thus be a great deal more formal than the execution of a will and one witness to each signature is sufficient. An attorney will not be permitted to witness the donor's signature but subject to that, it can be left to the solicitor involved to ensure there is nothing untoward in the signing of the enduring power or the witnessing of the signatures. For these reasons, I regret I cannot accept the amendment.
The Minister said he understands the point made in the amendment. However, I dispute the Minister's point about independent witnesses. In the case of wills, ordinary decent citizens are generally good independent witnesses. I have seen this in many cases. I do not agree with the Minister, but the point has been aired and I will not press the issue further.
Amendments Nos. 7 and 8 are related and may be discussed together. Is that agreed? Agreed. Recommital is necessary in respect of these amendments as they do not arise from Committee Stage proceedings.
I move amendment No. 7:
In page 5, line 43, to delete "disclaims or".
These are drafting amendments.
I move amendment No. 8:
In page 5, line 43, after "unable" to insert "or declines".
Amendments Nos. 9 and 10 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 9:
In page 6, line 2, after "bankrupt" to insert ", or of unsound mind, or a person convicted on indictment of a criminal offence, or a person in respect of whom an order has been made under section 150 of the Companies Act, 1990, or has been disqualified under section 160 of the Companies Act, 1990".
The Minister has, to a large extent, met our requirements in amendment No. 10. He omitted the proposals to exclude a person of unsound mind and people who have committed serious criminal offences. We wanted offences against anybody included, but the Minister's exclusion is limited to offences against the donor. There is not much point pressing the matter further and I accept the Minister has gone some of the way towards meeting our requirements.
Under the Bill as drafted, people judged to be bankrupt or to have been convicted of an offence involving fraud or dishonesty were precluded. The Minister has improved it to include people who are convicted of an offence against the person or property of the donor. However, it still leaves open the possibility that a range of undesirable individuals, such as murderers, child molesters and rapists, can be given enduring power of attorney provided they did not commit the offence against the donor. This is undesirable and our proposal is infinitely preferable. Although we will not make a meal of this by pressing the amendment, our suggestion would ensure much more sensible legislation. The possibility is left wide open in the Bill, even with the Minister's undoubted improvement in amendment No. 10, that some undesirable people can be given power of attorney and nobody can do anything about it if the donor is willing.
Deputy Woods's amendment proposes to make two changes to the current text. First, it disqualifies from acting as an attorney a person who is of unsound mind at the time of the execution of the power. I am not sure that practically it is necessary to make specific provision for such an eventuality. It is difficult to understand how any donor would appoint such a person as attorney or that the solicitor concerned would allow it to happen.
The other change proposed by the Deputy would disqualify persons convicted on indictment of an offence. On Committee Stage, Deputy O'Dea made the point, rightly in my view, that the indictable nature of an offence does not necessarily mean it was serious. For this reason, a better criterion would be the maximum penalty which could be imposed for the offence in question. I tabled an amendment proposing that a person convicted of an offence carrying a maximum penalty of at least two years imprisonment would be disqualified from acting as an attorney.
In doing so, I bore in mind that the court could register an instrument as an enduring power even if it did not comply with any of the provisions of section 5, including the disqualification provisions. However, the Dublin Solicitors' Bar Association pointed out that the amendment could result in the disqualification of a person who had been convicted of a serious driving offence, but who would nevertheless be suitable as an attorney. The association suggested it would be better not to put such attorneys in the position of having to seek leave from the court.
The formula in my amendment reflects a fair and reasonable balance. It will disqualify a person from acting as an attorney if he or she is convicted of an offence against the person or property of the donor. This is additional to the category of offences involving fraud or dishonesty which is already included in the text as meriting disqualification for this purpose. In these circumstances I commend my amendment to the House.
I move amendment No. 10:
In page 6, line 3, after "dishonesty" to insert "or an offence against the person or property of the donor".
Amendments Nos. 11 and 16 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 11:
In page 6, line 14, after "owner" to insert "or the servant or agent of an owner".
The point of the amendment is to a large extent met in section 5 (4) (b) and I will not press it. It does not go as far as we would wish, but the Minister has gone a long way towards meeting our proposals. The Minister's amendment No. 16 is agreed as it meets the points we raised. That amendment states:
In subsection (4) (b) `owner' includes a person managing a nursing home or a director (including a shadow director within the meaning of section 27 of the Companies Act, 1990) of, or a shareholder in, a company which owns or manages such a home".
This extends the categories of people included and goes some of the way towards meeting our concerns.
As the Deputy said, his amendment is unnecessary. The section already disqualifies an employee or agent of the owner. My amendment arises from comments made on Committee Stage that the definition of owner in section 5 (1) does not include a person managing a nursing home in which the donor resides or a director or shareholder of the company which manages such a nursing home. It closes that possible loophole and, for good measure, it also includes shadow directors in the definition as suggested by the Dublin Solicitors' Bar Association.
Amendments Nos. 12, 33, 34, 35, 44, 45 and 46 form a composite proposal and may be taken together. Is that agreed? Agreed. Recommittal is necessary in respect of these amendments as they do not arise out of Committee Stage proceedings.
I move amendment No. 12:
In page 6, line 22, before "An" to insert "Subject to subsection (8) and sections 14 (3) and 14 (4),".
These amendments are tabled to make better provision for a situation where a donor has appointed joint attorneys or joint and several attorneys under the enduring power and where one or more of them dies or ceases to be suitable to act as attorneys, say by becoming bankrupt or being convicted of an offence involving fraud or dishonesty.
Under the Bill as it stands such an occurrence would invalidate the whole enduring power in the case of joint attorneys. In the case of joint and several attorneys, only the attorney concerned is being disqualified and the enduring power is not otherwise affected.
As regards joint attorneys, I do not think the whole instrument should be invalidated in such cases. If one of the joint donees under an ordinary power of attorney becomes bankrupt the power of attorney lapses but the donor, if he or she wishes, can grant a fresh power of attorney to the remaining donee or donees. The position is different with an enduring power which has come into force because the donor will not be mentally capable by then of granting a fresh power.
Therefore, I propose that, unless the donor provides otherwise, bankruptcy or the other events will disqualify the joint attorney concerned. That is being provided by the insertion of a new subsection in amendment No. 34, which will be section 14 (3).
A further reason for making this change is to meet a point made by the Dublin Solicitors' Bar Association that a power creating joint attorneys could lapse on the death of one of the joint attorneys. The authority for that proposition is said to be Friend v Young — 1987, 2 Chancery 421 — a case where a partnership acted as agents. One partner died and the surviving partner did not account to the principal for moneys received in respect of deliveries that took place after the partner's death. In an action against that partner's estate it was held that the contract or agency was determined by his death.
Although the case was not specifically related to powers of attorney, these powers are governed by the law of agency and it would seem better to put the matter beyond doubt in the context of enduring powers where the donors are mentally incapable of creating another enduring power after the original power has come into force.
As regards joint and several attorneys, section 14 (4) provides that a failure by one attorney to meet the requirements of section 5 for creating an enduring power will invalidate the power only as regards that attorney. It does not cover the situation covered by section 5 (6) where after the creation of the power one of the joint and several attorneys becomes bankrupt and so on. Under that provision the enduring power would then be invalidated or cease to be in force as the case may be.
To avoid this happening section 14 (4) is being amended to make it apply to a failure by a joint and several attorneys to comply with the provisions of section 5, including subsection (6). That is amendment No. 35. Amendments Nos. 12, 13, 33 and 44 to 46, inclusive, are consequential. I trust the amendments will be accepted as improvements to the Bill.
As it is now 6.45 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Equality and Law Reform and not disposed of are hereby made to the Bill; that the Fourth Stage is hereby completed and that the Bill is hereby passed."
I thank the Minister for his co-operation. This is important legislation which will be particularly valuable to elderly people. The Alzheimer's Society was anxious to have this Bill passed and I am glad the Minister has given an undertaking that the regulations will come into effect shortly after the Bill becomes law.
I thank Deputies Woods and O'Dea who have argued their amendments forcibly and cogently. I have accepted many of the amendments in one form or another. I also acknowledge the contribution of the conveyancing committee of the Law Society and the Dublin Solicitors' Bar Association. They made submissions to the select committee which dealt with the Bill and had several discussions with my Department.
The result has been a substantial improvement in the Bill. It now extends to a range of personal care decisions and will cover most of those that arise in practice when the donor of an enduring power has become mentally incapable. Several changes have been made to ensure that the wishes of the donor to create a valid enduring power are not frustrated by non-compliance with the requirements of the Bill. The first is the provision to enable enduring powers to be registered even when there are nonmaterial defects in their form or in the mode of expression. That will facilitate the registration of powers by the registrar and alleviate unnecessary references to the courts.
I thank all Deputies for their helpful approach. The draft regulations have been circulated and I will undertake to bring them and the Bill into force with all possible speed.
The Bill, which is considered by virtue of Article 20.2.2º of the Constitution as a Bill initiated in Dáil Éireann, will now be sent to the Seanad.