Assisted Decision-Making (Capacity) Bill 2013: From the Seanad (Resumed)

The Dáil went into Committee to resume consideration of Seanad amendment No. 44:
Section 14: In page 23, line 23, after “section” to insert “and section 15”.

Obviously, the issue of consultation is a source of concern and many independent agencies have already been established by the Government. The best way to put these concerns is to quote what the respected Senator Jillian van Turnhout said during the Seanad debate:

... it places the service within the remit of the Department of Health rather than the Department of Justice and Equality. Since legal capacity matters should probably be regarded as a matter for the Department of Justice and Equality, I question this move. Could this lead to confusion because decision support issues might be confused with mental health issues? Since the remit of the decision support service is much broader than mental health, I wonder about establishing it under the Mental Health Commission.

I would have thought that this function would have been better established as an independent authority similar to the National Disability Authority with reporting responsibilities to the Department of Justice and Equality.

This move has been made at the very last minute in drafting the Bill without consultation, but we will leave it there, as we have had this discussion already. The points the Senator made are very important. Placing this authority within the Mental Health Commission is not the best fit. This is no reflection on the commission. The Senator has made some key points and expressed them better than I have today. The issue goes beyond consultation and the need for an independent authority. We know that other independent agencies have been established. I can reiterate the points made. The problem is that the reporting mechanism is under the Department of Health rather than the Department of Justice and Equality. These are legal capacity matters which should not be confused with mental health matters. Senator Jillian van Turnhout made very strong points which have not yet been addressed.

I want to raise the same issue. I have received a considerable amount of correspondence about this part of the legislation. I spoke earlier to the legislation before it went to the Seanad. However, this issue has only arisen because of the change made latterly by the Government. Groups such as the Centre for Disability Law and Policy in NUI Galway, the National Disability Authority, Inclusion Ireland and many civil society and stakeholder organisations that have an interest in the legislation have all expressed dismay that instead of it being dealt with as a legal issue by the Department of Justice and Equality, it has been switched to the Mental Health Commission. In addition, the service will now not be an independent statutory body with reporting responsibilities to the Department of Justice and Equality. Obviously, this matter was discussed in the Seanad and the Minister of State spoke about it. I read the transcript and get the impression that she is a little embarrassed about the change because she said:

The ideal would be a stand-alone agency. There is no disagreement about it. Unfortunately, the Government has committed not to create any new agencies. Therefore, we had to find something more appropriate.

From this I am guessing that the Government stated, "Oh God, we can't create another quango because every time we do that the public disagrees." In addition, Fine Gael believes the Government should not create different public bodies. If we need a public body, we need one. What is Irish Water in that case? The Government had no problem in establishing an enormous quango that nobody wanted. It is not on principle that the Government cannot create new independent stand-alone agencies.

I ask the Minister of State to listen. The process of consultation with groups has to be taken seriously and many concerns have been expressed. It is also an issue of stigmatising. There are other issues that are not related to mental health. It would be in the best interests of all concerned if the Minister of State reconsidered.

I will be brief because I have said as much as I need to say on this issue. The Bill provides that while the decision support service will, in the first instance, lay its report before the Minister for Health, it will also lay it before the Minister for Justice and Equality because the Minister for Justice and Equality has responsibility for the legislation. The Minister for Health simply has responsibility for the Mental Health Commission. That is how it will be done. It is not as if it will be one Department or the other. It is simply the case that the Department of Justice and Equality has responsibility for the legislation and the Minister for Health has responsibility for the Mental Health Commission. The report will then be laid before the Houses of the Oireachtas.

The Minister of State acknowledges that it would be best if the service was independent. Of course, we cannot do this because we have established that the Government does not establish new agencies but amalgamates them.

Accordingly, we, unfortunately, have to amalgamate this proposed body with the Mental Health Commission. Why did the Minister of State say this in the Seanad and here today when I pointed out Government has established new agencies? The Minister of State also claimed those agencies in question are self-funding, but I have explained the policing authority is not self-funding, while the other two agencies referred to are partially funded by the State. Does she still believe it would be best practice to establish this as an independent authority? Does she acknowledge that the Government has established new agencies? Does the Minister of State not find it alarming that all of the bodies that Deputy Ruth Coppinger and I listed earlier would like this to be an independent authority? The Minister of State indicated not just today, but previously, that it would be desirable to have an independent authority but, unfortunately, the reason she gave is the Government does not establish new agencies, it amalgamates them. I have pointed out the Government has established at least three agencies. Is there room for reflection on this? Does she take on board the points made by Senator Jillian van Turnhout in the Seanad that the difficulty here is the Minister of State is conflating different issues by putting them under the Mental Health Commission?

While it is no reflection on the Mental Health Commission, I do not believe in sticking bodies under the one agency and that amalgamating them is the best practice. It certainly is not the best practice in this case. It is not my opinion but that of non-governmental organisations and experts which deal with this area. They feel it is poor practice and not the way to go. They have not been consulted about a serious decision.

I do not disagree with the previous speakers about the strategy on the amalgamation of quangos or the merging of one into the other. I do not feel it addresses the spirit of the legislation either. It would be best served in this debate if we all declared submissions made on the legislation. We all receive objections to legislation and amendments but we rarely see correspondence of support stating a proposal would work and is good. There is a disproportionate perception because one receives a quantum of disagreement on one proposal but there is silence on the other side of the debate. It would be helpful if the Minister of State would comment on that.

It would also be helpful if she would categorically declare that there will be a strategic review of the role of the Mental Health Commission. Again, like Pádraig Deputy Mac Lochlainn, I do not dispute its independence. It is the appropriate location for this agency, based on its expertise, culture, resources, understanding, language and empathy. I am not too sure about setting up a new, distinct, stand-alone agency when we already have an independent stand-alone with expertise in this area. It is a point of difference but it is important for this aspect of the debate that the Minister of State gives some hope around the issue of the role of the Mental Health Commission. We all agree it is independent; there is no dispute about that. However, how will it fit in best and what is the long-term review for it in the context of the concerns raised?

I am not certain how much more I can emphasise this. The reason I was quoted as saying that was because I said it and I said it again in here this morning. Deputy Pádraig Mac Lochlainn does not have to quote the debate from the Seanad because I said it here this morning. The reason I said it is because I keep hearing about new politics and how we should do politics differently. I believe in having a personal view and being open and honest about what I believe. That is what I practise both in here and outside. It might not sit well with some people but that is what I practise.

In the Chamber, it was sought that the proposed body would be situated within the Department of Justice and Equality. To me, that would have been the wrong place to have it. It was wrong to have it in the courts and it would be wrong to have it within the Department of Justice and Equality. It would send out all the wrong signals.

Deputy Colm Keaveney is correct that the Mental Health Commission is the most independent of bodies. It is the expert body in terms of deprivation and allowing people to be heard. It is the most independent group I know. This will need rebranding and negotiations in the next six months to figure out exactly how this will fit better than we can envisage now. We will be doing an extensive and comprehensive review paper on the Mental Health Commission and have permission to draw up a general scheme. In the process, there will be questions of what more can it do and what could be done differently. I would not deign to tell the commission because I respect its independence but if it wishes it can have a consultation process around how this will be managed better under its remit. That is as much as we can do on this.

Seanad amendment put and declared carried.
Seanad amendment No. 45:
Section 14: In page 23, to delete line 33 and substitute the following:
“(b) is able to perform his or her functions under the co-decision-making agreement.”.
Seanad amendment agreed to.
Seanad amendment No. 46:
Section 14: In page 24, line 10, to delete “subsection (7)” and substitute “subsection (7)(a)”.
Seanad amendment agreed to.
Seanad amendment No. 47:
Section 14: In page 24, line 13, to delete “subsection (7)” and substitute “subsection (7)(a)”.
Seanad amendment agreed to.
Seanad amendment No. 48:
Section 14: In page 24, line 17, to delete “subsection (7)” and substitute “subsection (7)(b)”.
Seanad amendment agreed to.
Seanad amendment No. 49:
Section 14: In page 24, line 24, to delete “of” where it secondly occurs.
Seanad amendment agreed to.
Seanad amendment No. 50:
Section 14: In page 24, line 26, to delete “(or the person signing on his or her behalf)” and substitute “, or the person signing on his or her behalf,”.
Seanad amendment agreed to.
Seanad amendment No. 51:
Section 14: In page 25, line 2, to delete “step-child,”.
Seanad amendment agreed to.
Seanad amendment No. 52:
Section 14: In page 25, line 7, to delete “of the relevant person”.
Seanad amendment agreed to.
Seanad amendment No. 53:
Section 15: In page 25, line 16, to delete “or” where it firstly occurs and substitute “or is”.
Seanad amendment agreed to.
Seanad amendment No. 54:
Section 15: In page 25, to delete lines 25 to 31 and substitute the following:
“(f) is a person who is—
(i) the owner or registered provider of a designated centre or mental health facility in which the person who intends to appoint him or her as co-decision-maker resides, or
(ii) residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the person who intends to appoint him or her as co-decision-maker,”.
Seanad amendment agreed to.
Seanad amendment No. 55:
Section 15: In page 25, line 32, to delete “section 128” and substitute “section 31, 72, 73 or 128”.
Seanad amendment agreed to.
Seanad amendment No. 56:
Section 15: In page 25, line 37, to delete “contains only” and substitute “relates only to”.
Seanad amendment agreed to.
Seanad amendment No. 57:
Section 16: In page 26, lines 2 to 5, to delete all words from and including “(1) A” in line 2 down to and including line 5.
Seanad amendment agreed to.
Seanad amendment No. 58:
Section 16: In page 26, line 6, after “functions” to insert “as specified in the co-decision-making agreement”.
Seanad amendment agreed to.
Seanad amendment No. 59:
Section 16: In page 26, line 11, to delete “them” and substitute “the appointer’s will and preferences”.
Seanad amendment agreed to.
Seanad amendment No. 60:
Section 16: In page 26, to delete lines 12 to 14 and substitute the following:
“(c) assist the appointer to obtain the appointer’s relevant information,”.
Seanad amendment agreed to.
Seanad amendment No. 61:
Section 16: In page 26, to delete line 15 and substitute the following:
“(d) discuss with the appointer the known alternatives and likely outcomes of a relevant decision,”.
Seanad amendment agreed to.
Seanad amendment No. 62:
Section 16: In page 26, to delete lines 19 to 26.
Seanad amendment agreed to.
Seanad amendment No. 63:
Section 16: In page 26, to delete lines 34 to 39, and in page 27, to delete lines 1 to 3 and substitute the following:
“(7) Where—
(a) after an application has been made under section 18 to register a co-decision-making agreement but before registration of the agreement, or
(b) after registration of a co-decision-making agreement, the co-decision-maker or any person specified in section 18(3) has reason to believe that the appointer’s capacity has—
(i) deteriorated to the extent that he or she lacks capacity in relation to the relevant decisions which are the subject of the co-decision-making agreement even with the assistance of a co-decision-maker, or
(ii) improved to the extent that he or she has capacity in relation to the relevant decisions which are the subject of the co-decision-making agreement, he or she shall promptly inform the Director of that belief.”.
Seanad amendment agreed to.
Seanad amendment No. 64:
Section 16: In page 27, to delete lines 4 to 8 and substitute the following:
“(8) In this Part, a reference to a relevant decision being made jointly means that a co-decision-maker—
(a) shall acquiesce with the wishes of the appointer in respect of the relevant decision, and
(b) shall not refuse to sign a document referred to in section 20(3), unless it is reasonably foreseeable that such acquiescence or signature, as the case may be, will result in serious harm to the appointer or to another person.”.
Seanad amendment agreed to.
Seanad amendment No. 65
Section 16: In page 27, line 10, to delete “in relation to those specified in respect of him or her” and substitute “the relevant decisions specified”.
Seanad amendment agreed to.
Seanad amendment No. 66:
Section 17: In page 27, line 16, after “in” to insert “any of”.
Seanad amendment agreed to.
Seanad amendment No. 67:
Section 17: In page 27, line 18, to delete “it” and substitute “the co-decision-making agreement”.
Seanad amendment agreed to.
Seanad amendment No. 68:
Section 17: In page 27, line 24, after “attorney” to insert “or enduring power under the Act of 1996”.
Seanad amendment agreed to.
Seanad amendment No. 69:
Section 17: In page 27, line 26, after “in” where it firstly occurs to insert “any of”.
Seanad amendment agreed to.
Seanad amendment No. 70:
Section 17: In page 28, to delete lines 7 and 8 and substitute the following:
“(a) the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either—
(i) under the law of the State, or
(ii) under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State,”.
Seanad amendment agreed to.
Seanad amendment No. 71:
Section 17: In page 28, lines 18 and 19, to delete “the appointment of a co-decision-maker” and substitute “the registration of a co-decision-making agreement”.
Seanad amendment agreed to.
Seanad amendment No. 72:
Section 17: In page 28, to delete lines 27 and 28 and substitute the following:
“(d) the co-decision-maker becomes a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,”.
Seanad amendment agreed to.
Seanad amendment No. 73:
Section 17: In page 28, line 31, after "Chapter" to insert "or any other provisions of that Act".
Seanad amendment agreed to.
Seanad amendment No. 74:
Section 17: In page 28, to delete lines 32 to 37 and substitute the following:
"(f) the co-decision-maker becomes—
(i) the owner or registered provider of a designated centre or mental health facility in which the appointer resides, or
(ii) a person residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the co-decision-maker is the spouse, civil partner, cohabitant, parent, child or sibling of the appointer,".
Seanad amendment agreed to.
Seanad amendment No. 75:
Section 17: In page 28, line 38, to delete “section 128” and substitute "section 31, 72, 73 or 128".
Seanad amendment agreed to.
Seanad amendment No. 76:
Section 17: In page 29, line 2, after "attorney" to insert "or enduring power under the Act of 1996".
Seanad amendment agreed to.
Seanad amendment No. 77:
Section 17: In page 29, line 4, to delete “an order under Part 5” and substitute "a declaration under section 34(1)".
Seanad amendment agreed to.
Seanad amendment No. 78:
Section 17: In page 29, line 6, to delete "shall" and substitute "should".
Seanad amendment agreed to.
Seanad amendment No. 79:
Section 17: In page 29, line 11, to delete "contains" and substitute "relates to".
Seanad amendment agreed to.
Seanad amendment No. 80:
Section 17: In page 29, to delete lines 12 to 23 and substitute the following:
"(8) Where a co-decision-making agreement which stands registered becomes null and void in whole or to the extent that it relates to one or more relevant decisions, the co-decision-maker or, in the case of nullity pursuant to subsection (6)(h)(iii) or (iv), his or her attorney, decision-making-representative or the court, as the case may be, shall notify the Director of such nullity and the particulars relating thereto.
(9) The nullity of a co-decision-making agreement or of a relevant decision contained therein shall not operate to prevent a person who relied on the agreement or the relevant decision from recovering damages in respect of any loss incurred by him or her as a result of that reliance.".
Seanad amendment agreed to.
Seanad amendment No. 81:
Section 18: In page 30, lines 20 and 21, to delete "the functions of a co-decision-maker" and substitute "his or her functions as specified in the co-decision-making agreement".
Seanad amendment agreed to.
Seanad amendment No. 82:
Section 18: In page 30, line 35, to delete "his or her" and substitute "their".
Seanad amendment agreed to.
Seanad amendment No. 83:
Section 18: In page 31, line 7, to delete "details of the notice given" and substitute "a copy of any notice given".
Seanad amendment agreed to.
Seanad amendment No. 84:
Section 19: In page 31, line 12, to delete "whether—" and substitute "whether the following criteria are met:".
Seanad amendment agreed to.
Seanad amendment No. 85:
Section 19: In page 31, to delete lines 15 and 16 and substitute the following:
"(c) the co-decision-maker is eligible for appointment within the meaning of section 15,".
Seanad amendment agreed to.
Seanad amendment No. 86:
Section 19: In page 31, line 25, to delete "satisfied" and substitute "of the view".
Seanad amendment agreed to.
Seanad amendment No. 87:
Section 19: In page 31, line 34, to delete "satisfied" and substitute "of the view".
Seanad amendment agreed to.
Seanad amendment No. 88:
Section 21: In page 32, line 37, to delete "in respect of" and substitute "to make".
Seanad amendment agreed to.
Seanad amendment No. 89:
Section 21: In page 33, line 1, to delete "in respect of" and substitute "to make".
Seanad amendment agreed to.
Seanad amendment No. 90:
Section 21: In page 33, line 7, to delete "or falls under paragraphs (a) to (h) of section 15(1)" and substitute "or is not eligible for appointment by virtue of section 15".
Seanad amendment agreed to.
Seanad amendment No. 91:
Section 21: In page 33, between lines 7 and 8, to insert the following:
"(g) that a false statement is included in the application to register the co-decision-making agreement;".
Seanad amendment agreed to.
Seanad amendment No. 92:
Section 21: In page 33, line 10, after "subsection (2)," to insert "which has been made in the period specified in subsection (1),".
Seanad amendment agreed to.
Seanad amendment No. 93:
Section 23: In page 34, line 28, to delete "whether—" and substitute "whether the following criteria are met:".
Seanad amendment agreed to.
Seanad amendment No. 94:
Section 23: In page 34, line 30, to delete "falls" and substitute "does not fall".
Seanad amendment agreed to.
Seanad amendment No. 95:
Section 23: In page 34, line 31, to delete "effectively".
Seanad amendment agreed to.
Seanad amendment No. 96:
Section 23: In page 34, line 32, to delete "effectively".
Seanad amendment agreed to.
Seanad amendment No. 97:
Section 23: In page 34, line 34, to delete "and".
Seanad amendment agreed to.
Seanad amendment No. 98:
Section 23: In page 35, line 9, to delete "the matters in" and substitute "the criteria set out in".
Seanad amendment agreed to.
Seanad amendment No. 99:
Section 23: In page 35, lines 9 and 10, to delete "does not, or no longer continues to, apply," and substitute "does not apply,".
Seanad amendment agreed to.
Seanad amendment No. 100:
Section 23: In page 35, line 16, to delete "the matters in" and substitute "the criteria set out in".
Seanad amendment agreed to.
Seanad amendment No. 101:
Section 23: In page 35, lines 16 and 17, to delete "does not, or no longer continues to, apply," and substitute "does not apply,".
Seanad amendment agreed to.
Seanad amendment No. 102:
Section 23: In page 35, lines 20 and 21, to delete "does not, or no longer continues to, apply," and substitute "does not apply,".
Seanad amendment agreed to.
Seanad amendment No. 103:
Section 24: In page 35, line 38, to delete "notice" and substitute "notification".
Seanad amendment agreed to.
Seanad amendment No. 104:
Section 24: In page 35, to delete lines 40 to 42 and substitute the following:
“(4) Where a co-decision-maker fails to comply with a notification under subsection (3), the Director shall—
(a) in the case of the submission of an incomplete report and following any necessary enquiries to satisfy himself or herself that the report is substantially in accordance with this section and regulations made under section 28, accept the report as if it were in compliance with this section and the relevant regulations, or
(b) make an application to the court for a determination as to whether the co-decision-maker should continue as co-decision-maker for the appointer.”.
Seanad amendment agreed to.
Seanad amendment No. 105:
Section 24: In page 35, line 43, to delete “subsection (4)” and substitute “subsection (4)(b)”.
Seanad amendment agreed to.
Seanad amendment No. 106:
Section 25: In page 36, line 16, after “and” where it firstly occurs to insert “, subject to section 14(6),”.
Seanad amendment agreed to.
Seanad amendment No. 107:
Section 27: In page 38, to delete lines 1 to 3 and substitute the following:
“(a) that the co-decision-maker has acted, is acting, or is proposing to act outside the scope of his or her functions under the co-decision-making agreement;”.
Seanad amendment agreed to.
Seanad amendment No. 108:
Section 27: In page 38, line 7, to delete “the” where it firstly occurs and substitute “an”.
Seanad amendment agreed to.
Seanad amendment No. 109:
Section 27: In page 38, line 9, to delete “the” and substitute “an”.
Seanad amendment agreed to.
Seanad amendment No. 110:
Section 27: In page 38, line 11, to delete “the” where it firstly occurs and substitute “an”.
Seanad amendment agreed to.
Seanad amendment No. 111:
Section 27: In page 38, line 14, to delete “the” where it firstly occurs and substitute “an”.
Seanad amendment agreed to.
Seanad amendment No. 112:
Section 27: In page 38, line 18, after “investigation” to insert “of the matter which is the subject of that complaint”.
Seanad amendment agreed to.
Seanad amendment No. 113:
Section 27: In page 38, between lines 23 and 24, to insert the following:
“(3) A person who receives a notification under subsection (2)(b) may, not later than 21 days after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.”.
Seanad amendment agreed to.
Seanad amendment No. 114:
Section 27: In page 38, line 25, after “to” to insert “the”.
Seanad amendment agreed to.
Seanad amendment No. 115:
Section 27: In page 38, line 28, to delete “subsection (2)” and substitute “subsection (2)(a)”.
Seanad amendment agreed to.
Seanad amendment No. 116:
Section 27: In page 38, to delete lines 29 and 30 and substitute the following:
“(b) pursuant to an appeal under subsection (3),”.
Seanad amendment agreed to.
Seanad amendment No. 117:
Section 27: In page 38, lines 31 and 32, to delete “which was the subject of a complaint to the Director”.
Seanad amendment agreed to.
Seanad amendment No. 118:
Section 28: In page 38, lines 36 and 37, to delete all words from and including “make” in line 36 down to and including line 37 and substitute “prescribe by regulations the following matters:”.
Seanad amendment agreed to.
Seanad amendment No. 119:
Section 28: In page 38, line 38, to delete “prescribing”.
Seanad amendment agreed to.
Seanad amendment No. 120:
Section 28: In page 38, line 39, to delete “prescribing”.
Seanad amendment agreed to.
Seanad amendment No. 121:
Section 28: In page 39, line 2, to delete “prescribing”.
Seanad amendment agreed to.
Seanad amendment No. 122:
Section 28: In page 39, line 5, to delete “prescribing”.
Seanad amendment agreed to.
Seanad amendment No. 123:
Section 28: In page 39, line 7, to delete “prescribing”.
Seanad amendment agreed to.
Seanad amendment No. 124:
Section 28: In page 39, line 9, to delete “prescribing”.
Seanad amendment agreed to.
Seanad amendment No. 125:
Section 28: In page 39, line 11, to delete “prescribing”.
Seanad amendment agreed to.
Seanad amendment No. 126:
Section 28: In page 39, line 13, to delete “prescribing”.
Seanad amendment agreed to.
Seanad amendment No. 127:
Section 28: In page 39, line 16, to delete “prescribing”.
Seanad amendment agreed to.
Seanad amendment No. 128:
Section 28: In page 39, to delete line 22.
Seanad amendment agreed to.
Seanad amendment No. 129:
Section 28: In page 39, line 23, to delete “prescribing”.
Seanad amendment agreed to.
Seanad amendment No. 130:
Section 29: In page 39, line 25, after “Where” to insert “, under this Part,”.
Seanad amendment agreed to.
Seanad amendment No. 131:
Section 30: In page 39, lines 35 and 36, to delete “notice of the nullity of a co-decision-making agreement or of a relevant decision which is the subject of a co-decision-making agreement,” and substitute “notification of nullity pursuant to section 17(8),”.
Seanad amendment agreed to.
Seanad amendment No. 132:
Section 31: In page 40, line 7, to delete “shall be guilty of” and substitute “commits”.
Seanad amendment agreed to.
Seanad amendment No. 133:
Section 31: In page 40, lines 21 to 23, to delete all words from and including “a” where it secondly occurs in line 21 down to and including “disabilities,” in line 23 and substitute “a designated centre or mental health facility,”.
Seanad amendment agreed to.
Seanad amendment No. 134:
Section 33: In page 41, line 9, to delete “application,” and substitute “application, and”.
Seanad amendment agreed to.
Seanad amendment No. 135:
Section 33: In page 41, line 11, to delete “applicant),” and substitute “applicant).”.
Seanad amendment agreed to.
Seanad amendment No. 136:
Section 33: In page 41, to delete lines 12 to 16.
Seanad amendment agreed to.
Seanad amendment No. 137:
Section 33: In page 42, line 16 to 18, to delete all words from and including “power” in line 16 down to and including “section 58)” in line 18 and substitute “enduring power of attorney or enduring power under the Act of 1996”.
Seanad amendment agreed to.
Seanad amendment No. 138:
Section 33: In page 42, line 22, to delete “and which, to the applicant’s knowledge, still has any force or effect” and substitute “of which the applicant has knowledge”.
Seanad amendment agreed to.

Seanad amendments Nos. 139, 165, 166, 251 and 295 are related and may be discussed together.

(4) Subject to subsection (5), where, subsequent to the appointment of an attorney—

(a) the attorney is convicted of an offence in relation to the person or property of the donor or the person or property of a child of the donor,

(b) a safety or barring order is made against the attorney in relation to the donor or a child of the donor,

(c) the attorney becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty,

(d) the attorney becomes a person in respect of whom a declaration has been made under section 819 of the Act of 2014 or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,

(e) the attorney becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter or any other provisions of that Act,

(f) the attorney becomes—

(i) the owner or the registered provider of a designated centre or mental health facility in which the intending donor resides, or

(ii) a person residing with, or an employee or agent of, a person referred in to subparagraph (i),

unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the intending donor,

(g) the attorney is convicted of an offence under section 31, 72, 73 or 128,

(h) the attorney—

(i) enters into a decision-making assistance agreement as a relevant person,

(ii) enters into a co-decision-making agreement as a relevant person,

(iii) has an enduring power of attorney or an enduring power under the Act of 1996 registered in respect of himself or herself, or

(iv) becomes the subject of a declaration under section 34(1),

or

(i) the attorney is a trust corporation and the trust corporation is dissolved, the attorney shall be disqualified from being an attorney for the donor with effect from the day on which the attorney falls within any of paragraphs (a) to (i).

(5) Subsections (4)(c), (d) and (e) shall not apply to an attorney insofar as authority is conferred on him or her under the enduring power of attorney in relation to personal welfare matters.

(6) Where an attorney becomes disqualified under this section, he or she, or in the case of disqualification pursuant to subsection (4)(h)(iii) or (iv), his or her attorney, decision making-representative or the court, as the case may be, shall notify the Director of such disqualification and the particulars relating thereto.

(7) Where an attorney becomes disqualified, a relevant decision made solely by him or her after his or her disqualification shall be null and void.

(8) Subsection (7) shall not operate to prevent a person who relied on a relevant decision referred to in that subsection from recovering damages in respect of any loss incurred by him or her as a result of that reliance.”.

Seanad amendment No. 139:
Section 33: In page 42, to delete lines 23 to 37.
Seanad amendment agreed to.
Seanad amendment No. 140:
Section 33: In page 42, to delete line 40 and substitute “commenced, and”.
Seanad amendment agreed to.
Seanad amendment No. 141:
Section 33: In page 43, to delete lines 1 and 2.
Seanad amendment agreed to.
Seanad amendment No. 142:
Section 33: In page 43, line 9, after “attorney” to insert “, attorney under the Act of 1996”.
Seanad amendment agreed to.
Seanad amendment No. 143:
Section 33: In page 43, line 11, after “attorney” to insert “, attorney under the Act of 1996”.
Seanad amendment agreed to.
Seanad amendment No. 144:
Section 33: In page 43, line 21, after “attorney” to insert “, attorney under the Act of 1996”.
Seanad amendment agreed to.
Seanad amendment No. 145:
Section 33: In page 43, line 23, after “attorney” to insert “, attorney under the Act of 1996”.
Seanad amendment agreed to.
Seanad amendment No. 146:
Section 34: In page 44, line 4, to delete “Subject to subsection (3), the” and substitute “The”.
Seanad amendment agreed to.
Seanad amendment No. 147:
Section 34: In page 44, line 10, to delete “application” and substitute “declaration”.
Seanad amendment agreed to.
Seanad amendment No. 148:
Section 34: In page 44, to delete lines 20 to 22.
Seanad amendment agreed to.
Seanad amendment No. 149:
Section 35: In page 45, line 12, to delete “suitable person” and substitute “suitable person who has attained the age of 18 years”.
Seanad amendment agreed to.
Seanad amendment No. 150:
Section 35: In page 45, to delete lines 17 to 20 and substitute the following:
“(3) In making a decision-making order or decision-making representation order in relation to personal welfare, the court shall have regard to the terms of any advance healthcare directive made by the relevant person and shall—
(a) ensure that the terms of the order are not inconsistent with the directive, and
(b) where a decision-making representative is appointed, ensure that his or her functions are not inconsistent with the directive or the relevant powers exercisable by any designated healthcare representative under the directive.
(4) In making a decision-making order or decision-making representation order, the court shall have regard to the terms of any enduring power of attorney made by the relevant person or enduring power under the Act of 1996 made by him or her and shall—
(a) ensure that the terms of the order are not inconsistent with the terms of the enduring power of attorney or enduring power under the Act of 1996, and
(b) where a decision-making representative is appointed, ensure that his or her functions are not inconsistent with—
(i) the functions of an attorney under an enduring power of attorney, or
(ii) the duties and obligations of an attorney under the Act of 1996.”.
Seanad amendment agreed to.
Seanad amendment No. 151:
Section 35: In page 47, to delete lines 8 to 17.
Seanad amendment agreed to.
Seanad amendment No. 152:
Section 36: In page 47, between lines 17 and 18, to insert the following:
“Persons who are not eligible to be decision-making representatives
36. (1) Subject to subsection (2), a person shall not be eligible for appointment as a decision-making representative if he or she—
(a) has been convicted of an offence in relation to the person or property of the relevant person or the person or property of a child of that person,
(b) has been the subject of a safety or barring order in relation to the relevant person or a child of that person,
(c) is an undischarged bankrupt or is currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty,
(d) is a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,
(e) is a person who is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Act of 2014, by virtue of that Chapter or any other provisions of that Act,
(f) is a person who is—
(i) the owner or registered provider of a designated centre or mental health facility in which the relevant person resides, or
(ii) residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the relevant person, or
(g) has been convicted of an offence under section 31, 72, 73 or 128.
(2) Subsections (1)(c), (d) and (e) shall not apply as respects the appointment of a person as a decision-making representative in respect of relevant decisions concerning personal welfare matters only.”.
Seanad amendment agreed to.
Seanad amendment No. 153:
Section 36: In page 47, between lines 17 and 18, to insert the following:
“Disqualification as decision-making representative
37. (1) A decision-making representative shall, with effect from the date on which an event specified in paragraphs (a) to (c) occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, be disqualified from being a decision-making representative for the relevant person where the decision-making representative is the spouse of the relevant person and—
(a) the marriage is annulled or dissolved either—
(i) under the law of the State, or
(ii) under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State,
(b) either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect,
(c) a written agreement to separate is entered into between the spouses, or
(d) subject to section 2(2), the spouses separate and cease to cohabit for a continuous period of 12 months.
(2) A decision-making representative shall, with effect from the date on which an event specified in paragraph (a) or (b) occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, be disqualified from being a decision-making representative for the relevant person where the decision-making representative is the civil partner of the relevant person and—
(a) the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either—
(i) under the law of the State, or
(ii) under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State,
(b) a written agreement to separate is entered into between the civil partners, or
(c) subject to section 2(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.
(3) Subject to section 2(2), a decision-making representative shall, at the expiry of the period referred to in this subsection, be disqualified from being a decision-making representative for the relevant person where the decision-making representative is the cohabitant of the appointer and the cohabitants separate and cease to cohabit for a continuous period of 12 months.
(4) Subject to subsection (5), where, subsequent to the appointment of a decision-making representative—
(a) the decision-making representative is convicted of an offence in relation to the person or property of the relevant person or the person or property of a child of the relevant person,
(b) a safety or barring order is made against the decision-making representative in relation to the relevant person or a child of the relevant person,
(c) the decision-making representative becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty,
(d) the decision-making representative becomes a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,
(e) the decision-making representative becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter or any other provisions of that Act,
(f) the decision-making representative becomes—
(i) the owner or registered provider of a designated centre or mental health facility in which the relevant person resides, or
(ii) a person residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the decision-making representative is a spouse, civil partner, cohabitant, parent, child or sibling of the appointer,
(g) the decision-making representative is convicted of an offence under section 31, 72, 73 or 128, or
(h) the decision-making representative—
(i) enters into a decision-making assistance agreement as a relevant person,
(ii) enters into a co-decision-making agreement as a relevant person,
(iii) has an enduring power of attorney or enduring power under the Act of 1996 registered in respect of himself or herself, or
(iv) becomes the subject of a declaration under section 34(1),
the decision-making representative shall be disqualified from being a decision-making representative for the relevant person with effect from the date on which the decision-making representative falls within any of paragraphs (a) to (h).
(5) Subsections (4)(c), (d) and (e) shall not apply to a decision-making representative insofar as he or she exercises functions under the decision-making representation order in relation to the personal welfare of the relevant person.
(6) Where a decision-making representative becomes disqualified under this section, he or she or, in the case of disqualification pursuant to subsection (4)(h)(iii) or (iv) his or her attorney, decision-making representative or the court, as the case may be, shall notify the Director of such disqualification and the particulars relating thereto.
(7) Where a decision-making representative becomes disqualified, a relevant decision made solely by him or her after his or her disqualification shall be null and void.
(8) Subsection (7) shall not operate to prevent a person who relied on a relevant decision referred to in that subsection from recovering damages in respect of any loss incurred by him or her as a result of that reliance.”.
Seanad amendment agreed to.
Seanad amendment No. 154:
Section 36: In page 47, between lines 17 and 18, to insert the following:
“Performance of functions of decision-making representative
38. (1) In exercising his or her functions as specified in the decision-making representation order, a decision-making representative shall, insofar as this is possible, ascertain the will and preferences of the relevant person on a matter the subject of, or to be the subject of, a relevant decision and assist the relevant person with communicating such will and preferences.
(2) A decision-making representative shall make a relevant decision on behalf of the relevant person and shall act as the agent of the relevant person in relation to a relevant decision.”
Seanad amendment agreed to.
Seanad amendment No. 155:
Section 36: In page 47, between lines 17 and 18, to insert the following:
“Remuneration and expenses
39. (1) Except where the court otherwise orders, a decision-making representative for a relevant person shall be entitled to be reimbursed out of the assets of the relevant person in respect of his or her fair and reasonable expenses which are reasonably incurred in performing his or her functions as such decision-making representative.
(2) Where the court so directs in a decision-making representation order, the decision-making representative shall be entitled to reasonable remuneration in relation to the performance of his or her functions as such decision-making representative and which functions are carried out in connection with his or her trade or profession, or in other exceptional circumstances specified in the order, and such remuneration shall be paid from the assets of the relevant person.”.
Seanad amendment agreed to.
Seanad amendment No. 156:
Section 36: In page 47, to delete lines 18 to 40, to delete pages 48 and 49 and in page 50, to delete lines 1 to 31.
Seanad amendment agreed to.
Seanad amendment No. 157:
Section 37: In page 51, between lines 27 and 28, to insert the following:
“(6) A decision-making representation order may provide for the giving of such security by the decision-making representative to the court as the court considers appropriate in relation to the proper performance of the functions of such decision-making representative.”.
Seanad amendment agreed to.
Seanad amendment No. 158:
Section 38: In page 52, to delete lines 1 to 26.
Seanad amendment agreed to.
Seanad amendment No. 159:
Section 38: In page 52, line 27, to delete “A decision-making representative” and substitute the following:
“Subject to the terms of any advance healthcare directive made by the relevant person and subject to relevant powers exercisable by any designated healthcare representative appointed under the directive, a decision-making representative”.
Seanad amendment agreed to.
Seanad amendment No. 160:
Section 38: In page 53, lines 11 and 12, to delete “the relevant person pursuant to this section” and substitute “a relevant person”.
Seanad amendment agreed to.
Seanad amendment No. 161:
Section 38: In page 53, to delete lines 17 and 18.
Seanad amendment agreed to.
Seanad amendment No. 162:
Section 39: In page 53, between lines 18 and 19, to insert the following:
“Register of decision-making representation orders
39. (1) The Director shall establish and maintain a Register (in this Part referred to as “the Register”) of decision-making representation orders.
(2) The Register shall be in such form as the Director considers appropriate.
(3) The Director shall make the Register available for inspection by—
(a) a body or class of persons prescribed by regulations made by the Minister for this purpose, and
(b) a person who satisfies the Director that he or she has a legitimate interest in inspecting the Register.
(4) The Director may issue an authenticated copy of a decision-making representation order, or part thereof, on the Register on payment of a fee prescribed by regulations made by the Minister to—
(a) a body or class of persons prescribed by regulations made by the Minister for this purpose, and
(b) a person who satisfies the Director that he or she has a legitimate interest in obtaining a copy.”.
Seanad amendment agreed to.
Seanad amendment No. 163:
Section 39: In page 53, between lines 18 and 19, to insert the following:
“Reports by decision-making representative
40. (1) Subject to subsection (2), a decision-making representative shall, within 12 months after the making of the decision-making representation order appointing him or her, and thereafter at intervals of not more than 12 months, prepare and submit to the Director a report in writing as to the performance of his or her functions as such decision-making representative during the relevant period.
(2) The court may direct that a report be submitted to the Director within such shorter period or within such shorter intervals than those specified in subsection (1).
(3) Every such report submitted to the Director shall be in such form as may be prescribed by regulations made by the Minister and shall include details of all transactions relating to the relevant person’s finances which are within the scope of the decision-making representation order and details of all costs, expenses and remuneration claimed by or paid to the decision-making representative during the relevant period.
(4) A decision-making representative who has restrained the relevant person at any time during the relevant period shall include in the report details of each such restraint and the date on which, and the place where, such restraint occurred.
(5) Where a decision-making representation order authorises a decision-making representative to make decisions in relation to a relevant person’s property and affairs, the decision-making representative shall within 3 months of his or her appointment as decision-making representative, submit to the Director a schedule of the relevant person’s assets and liabilities and a projected statement of the relevant person’s income and expenditure.
(6) Where a decision-making representation order authorises a decision-making representative to make decisions in relation to a relevant person’s property and affairs, the decision-making representative shall keep proper accounts and financial records in respect of the relevant person’s income and expenditure and shall—
(a) submit the accounts and records as part of a report to the Director under this section, and
(b) make available for inspection by the Director or by a special visitor, at any reasonable time, such accounts and records.
(7) Where a decision-making representative fails to submit a report in accordance with this section or submits an incomplete report or fails to comply with subsection (5) or (6), the Director shall notify the decision-making representative of that failure or incompleteness and give the decision-making representative such period of time as is specified in the notification to comply or submit a complete report.
(8) Where a decision-making representative fails to comply with a notification under subsection (7), the Director shall—
(a) in the case of the submission of an incomplete report and following any necessary enquiries to satisfy himself or herself that the report is substantially in accordance with this section and regulations made by the Minister, accept the report as if it were in compliance with this section and the relevant regulations, or
(b) make an application to the court for a determination as to whether the decision-making representative should continue as decision-making representative for the relevant person.
(9) Pursuant to an application to it under subsection (8)(b), the court may determine that a decision-making representative who has not complied with this section shall no longer act as decision-making representative for the relevant person concerned.
(10) In this section “relevant period” means the period of time to which the report relates which shall be the period of time between the date of the decision-making representation order or the date of submission of the previous report, as the case may be, and the date immediately preceding the date of submission of the report concerned.”.
Seanad amendment agreed to.
Seanad amendment No. 164:
Section 39: In page 53, between lines 18 and 19, to insert the following:
“Complaints in relation to decision making representatives
41. (1) A person may make a complaint in writing to the Director concerning one or more of the following matters:
(a) that a decision-making representative has acted, is acting, or is proposing to act outside the scope of his or her functions as specified in the decision-making representation order;
(b) that a decision-making representative is not suitable, having regard to the matters referred to in section 35(4), to be a decision-making representative.
(2) Following the receipt of a complaint under subsection (1), the Director shall carry out an investigation of the matter which is the subject of that complaint and—
(a) where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to a matter specified in the complaint, or
(b) where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for same.
(3) A person who receives a notification under subsection (2)(b) may, not later than 21 days after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.
(4) The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an investigation and make an application to the court for a determination in relation to any matter specified in subsection (1).
(5) The court may—
(a) pursuant to an application to it under subsection (2)(a) or (4), or
(b) pursuant to an appeal under subsection (3),
make a determination in relation to a matter specified in subsection (1) and may, if it considers it appropriate, determine that a decision-making representative shall no longer act as such in relation to the relevant person concerned.”.
Seanad amendment agreed to.
Seanad amendment No. 165:
Section 43: In page 55, between lines 19 and 20, to insert the following:
"(a) in section 1 by inserting the following definition:
" 'relevant person' has the meaning it has in the Assisted Decision-Making (Capacity) Act 2015;".".
Seanad amendment agreed to.
Seanad amendment No. 166:
Section 43: In page 55 to delete lines 28 to 36 and substitute the following:
"(b) in section 28 by inserting after subsection (3) the following:
"(3A) Where the proceedings the subject matter of the application under this section concern an application under Part 5 of the Assisted Decision-Making (Capacity) Act 2015 relating to the matter referred to in section 34(1) of that Act—
(a) paragraphs (c) and (e) of subsection (2) shall not apply, and
(b) where the applicant is a relevant person, paragraph (a) shall not apply.”,
(c) in section 28(5)—
(i) in paragraph (d) by deleting “aid.” and substituting “aid, and”, and
(ii) by inserting after paragraph (d) the following:
"(e) who is a patient, within the meaning of the Mental Health Act 2001, for the purpose of providing that person with legal representation before a tribunal in proceedings under that Act.",
(d) in section 33, by inserting after subsection (7) the following:
“(7A) Where a legal aid certificate has been granted to an applicant who is a relevant person who does not satisfy the criteria in respect of financial eligibility specified in section 29, the Board may seek to recover some or all of the costs of providing the legal aid to the relevant person concerned.”,
and
(e) in section 37(2), by inserting after paragraph (fb) the following:
"(fc) make provision for the mechanism for recovery of the costs referred to in section 33(7A);".".
Seanad amendment agreed to.
Seanad amendment No. 167:
Section 45: In page 56, line 10, to delete "An application for the review of the capacity of a ward" and substitute "An application for a declaration under section 46(1) in respect of a ward".
Seanad amendment agreed to.
Seanad amendment No. 168:
Section 45: In page 56, line 13, to delete “or”.
Seanad amendment agreed to.
Seanad amendment No. 169:
Section 45: In page 56, between lines 13 and 14, to insert the following:
"(b) a relative or friend of the ward who has had such personal contact with the ward over such period of time that a relationship of trust exists between them, or".
Seanad amendment agreed to.
Seanad amendment No. 170:
Section 45: In page 56, line 17, to delete "review the capacity of a ward" and substitute "make a declaration under section 46(1) in respect of a ward".
Seanad amendment agreed to.
Seanad amendment No. 171:
Section 45: In page 56, to delete lines 20 to 22 and substitute the following:
“(3) Where a ward reaches the age of 18 years after the period specified in subsection (2)(b), the wardship court shall, within 6 months of the ward reaching that age, make a declaration under section 46(1) in respect of the ward.".
Seanad amendment agreed to.
Seanad amendment No. 172:
Section 46: In page 56, line 24, to delete "after reviewing the capacity of the ward" and substitute "on an application being made to it under section 45(1), or pursuant to section 45(2) or (3)".
Seanad amendment agreed to.
Seanad amendment No. 173:
Section 46: In page 57, line 16, to delete “, following the review of the capacity of a ward,”.
Seanad amendment agreed to.
Seanad amendment No. 174:
Section 47: In page 57, to delete lines 22 to 27 and substitute the following:
"Saver
47. (1) The repeal of the Lunacy Regulation (Ireland) Act 1871 by section 7 shall not affect the validity of any order—
(a) made by the wardship court within its jurisdiction, and
(b) which was in force immediately before the commencement of this Part.
(2) Pending a declaration under section 46(1), the jurisdiction of the wardship court as set out in sections 9 and 22(2) of the Courts (Supplemental Provisions) Act 1961 shall continue to apply.".
Seanad amendment agreed to.
Seanad amendment No. 175:
Section 49: In page 58, to delete lines 7 to 15.
Seanad amendment agreed to.
Seanad amendment No. 176:
Section 50: In page 58, between lines 17 and 18, to insert the following:
“Interpretation - Part 7
50. (1) In this Part—
“disqualified”, in relation to an attorney, means the attorney becomes a person referred to in section 58 or a person that the court determines under this Part shall no longer act as attorney for the donor concerned;
“donor” has the meaning given to it in section 51(1);
“donor under the Act of 1996” means a person who has created an enduring power under the Act of 1996;
“prescribed” means prescribed by regulations made by the Minister under section 71;
“trust corporation” has the meaning it has in section 30 of the Succession Act 1965 but shall not include a designated centre or mental health facility in which the donor resides.
(2) In this Part “person”, in relation to an attorney, includes a trust corporation but only to the extent that the authority conferred under the enduring power of attorney relates to property and affairs.”.
Seanad amendment agreed to.
Seanad amendment No. 177:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Enduring power of attorney - general
51. (1) Subject to the provisions of this section and sections 52, 54 and 55, a person who has attained the age of 18 years (in this Act referred to as “donor”) may appoint another person who has also attained that age (in this Act referred to as “attorney”) on whom he or she confers either or both of the following:
(a) general authority to act on the donor’s behalf in relation to all or a specified part of the donor’s property and affairs; or
(b) authority to do specified things on the donor’s behalf in relation to the donor’s personal welfare or property and affairs, or both; which may, in either case, be conferred subject to conditions and restrictions.
(2) The authority referred to in subsection (1) shall be known as an enduring power of attorney and shall be conferred in writing in an instrument which is in compliance with this Part and regulations made under section 71.
(3) A donor may, in an enduring power of attorney, appoint a person who shall act as attorney for the donor in respect of the relevant decisions specified therein in the event that an attorney on whom authority is conferred dies or is unable to act or is disqualified from acting as attorney.
(4) An enduring power of attorney shall not enter into force until—
(a) the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power, and
(b) the instrument creating the enduring power of attorney has been registered in accordance with section 61.
(5) Where an enduring power of attorney is expressed to confer general authority in respect of all or a specified part of the donor’s property and affairs, it operates to confer, subject to any restrictions provided in the power or in this Part, authority to do on behalf of the donor anything which the donor can lawfully do by attorney.
(6) A person is suitable for appointment as an attorney if he or she is able to perform the functions of attorney as specified in the enduring power of attorney.".
Seanad amendment agreed to.
Seanad amendment No. 178:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Content of instrument creating an enduring power of attorney
52. (1) An instrument creating an enduring power of attorney shall include the following statements:
(a) by the donor that he or she—
(i) understands the implications of creating the power,
(ii) intends the power to be effective at any subsequent time when he or she lacks capacity in relation to one or more relevant decisions which are the subject of the power, and
(iii) is aware that he or she may vary or revoke the power prior to its registration;
(b) by a legal practitioner that, after interviewing the donor and making any necessary enquiries, he or she—
(i) is satisfied that the donor understands the implications of creating the power,
(ii) is satisfied that the donor is aware that he or she may vary or revoke the power prior to its registration, and
(iii) has no reason to believe that the instrument is being executed by the donor as a result of fraud, coercion or undue pressure;
(c) by a registered medical practitioner that in his or her opinion at the time the power was executed, the donor had the capacity to understand the implications of creating the power;
(d) by a healthcare professional of a class that shall be prescribed, that in his or her opinion at the time the power was executed, the donor had the capacity to understand the implications of creating the power; and
(e) by the attorney, that he or she—
(i) understands the implications of undertaking to be an attorney for the donor and has read and understands the information contained in the instrument,
(ii) understands and undertakes to act in accordance with his or her functions as specified in the instrument creating the enduring power of attorney,
(iii) understands and undertakes to act in accordance with the guiding principles,
(iv) understands and undertakes to comply with the reporting obligations under section 67, and
(v) understands the requirements in relation to registration of the power.
(2) An instrument creating an enduring power of attorney shall include the following:
(a) the name, date of birth and contact details of the donor;
(b) subject to subsection (3), the signature of the donor and the date that he or she signed the power;
(c) the name, date of birth and contact details of the attorney;
(d) the signature of the attorney and the date that he or she signed the enduring power of attorney;
(e) the signatures of the 2 witnesses referred to in subsection (4)(a).
(3) An instrument creating an enduring power of attorney may be signed on behalf of the donor by a person who has attained the age of 18 years and who is not the attorney or a witness referred to in subsection (4)(a) if—
(a) the donor is unable to sign the instrument,
(b) the donor is present and directs that the instrument be signed on his or her behalf by that person, and
(c) the signature of the person is witnessed in accordance with subsection (4)(b).
(4) (a) The donor, or the person signing on his or her behalf in accordance with subsection (3), and the attorney shall sign the instrument creating the enduring power of attorney in the presence of each other and in the presence of 2 witnesses—
(i) each of whom has attained the age of 18 years,
(ii) of whom at least one is not an immediate family member of the donor or the attorney, and
(iii) neither of whom is an employee or agent of the attorney.
(b) Each of the witnesses referred to in paragraph (a) shall witness the signature of the donor (or the person signing on his or her behalf) and the signature of the attorney by applying his or her own signature to the instrument creating the enduring power of attorney.
(5) Where a donor proposes to remunerate an attorney for performing his or her functions as attorney, the instrument creating the enduring power of attorney shall specify the proposed remuneration and the functions to which it relates.
(6) In this section, “immediate family member” means—
(a) a spouse, civil partner, or cohabitant,
(b) a child, son-in-law or daughter-in-law,
(c) a parent, step-parent, mother-in-law or father-in-law,
(d) a brother, sister, step-brother, step-sister, brother-in-law or sister-in-law,
(e) a grandparent or grandchild,
(f) an aunt or uncle, or
(g) a nephew or niece.”.
Seanad amendment agreed to.
Seanad amendment No. 179:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Notice of execution of an enduring power of attorney
53. (1) The donor shall, as soon as practicable after the execution of the instrument creating the enduring power of attorney, give notice, in such form as shall be prescribed, of such execution to the following persons:
(a) a spouse or civil partner of the donor;
(b) the cohabitant (if any) of the donor;
(c) any children of the donor who have attained the age of 18 years;
(d) any decision-making assistant for the donor;
(e) any co-decision-maker for the donor;
(f) any decision-making representative for the donor;
(g) any designated healthcare representative for the donor;
(h) any other attorney for the donor or attorney under the Act of 1996 in respect of the donor;
(i) any other person or persons as may be specified by the donor in the instrument creating the enduring power of attorney as a person or persons to whom notice shall be given under this section and section 60(3).
(2) Where there are fewer than 3 persons to whom notice may be given pursuant to subsection (1), the donor shall specify 2 persons in the instrument creating the enduring power of attorney as persons to whom notice shall be given under this section and section 60(3).”.
Seanad amendment agreed to.
Seanad amendment No. 180:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Scope of authority - personal welfare decisions
54. (1) Where an enduring power of attorney confers authority in relation to personal welfare, the power does not authorise an attorney to do an act that is intended to restrain the donor unless there are exceptional emergency circumstances and—
(a) the donor lacks capacity in relation to the matter in question or the attorney reasonably believes that the donor lacks such capacity,
(b) the attorney reasonably believes that it is necessary to do the act in order to prevent an imminent risk of serious harm to the donor or to another person, and
(c) the act is a proportionate response to the likelihood of the harm referred to in paragraph (b) and to the seriousness of such harm.
(2) For the purposes of this section, an attorney restrains a donor if he or she—
(a) uses, or indicates an intention to use, force to secure the doing of an act which the donor resists,
(b) intentionally restricts the donor’s liberty of voluntary movement or behaviour, whether or not the donor resists,
(c) administers a medication, which is not necessary for a medically identified condition, with the intention of controlling or modifying the donor’s behaviour or ensuring that he or she is compliant or not capable of resistance, or
(d) authorises another person to do any of the things referred to in paragraph (a) to (c).
(3) An attorney who restrains a donor shall cease the restraint immediately upon the restraint no longer being necessary in order to prevent an imminent risk of serious harm to the donor or to another person.
(4) Subsections (1) to (3) shall not be construed to prejudice the generality of section 69 of the Mental Health Act 2001 or of rules made under that section.
(5) A donor shall not, in an enduring power of attorney, include a relevant decision—
(a) relating to refusal of life-sustaining treatment, or
(b) which is the subject of an advanced healthcare directive made by him or her.
(6) To the extent that an enduring power of attorney includes a relevant decision specified in subsection (5), the power shall be null and void.”.
Seanad amendment agreed to.
Seanad amendment No. 181:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Scope of authority – property and affairs
55. (1) An attorney may act under an enduring power of attorney relating to property and affairs for the attorney’s benefit or that of other persons to the extent provided for in the power, where specific provision to that effect is made in the power and subject to any conditions or restrictions contained in the power.
(2) An attorney may not dispose of the property of the donor by way of gift unless specific provision to that effect is made in the enduring power of attorney.
(3) Where an enduring power of attorney authorises the disposal of the donor’s property by way of gift, the attorney’s power to make such gifts shall, in addition to being subject to any conditions or restrictions in the enduring power, be limited to—
(a) gifts made on customary occasions to persons (including the attorney) who are related to or connected to the donor and in relation to whom the donor might be expected to make gifts, and
(b) gifts to any charity to which the donor made or might be expected to make gifts,
provided that the value of the gift is reasonable having regard to all the circumstances and in particular the extent of the donor’s assets and any financial obligations.".
Seanad amendment agreed to.
Seanad amendment No. 182:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Application to joint and joint and several attorneys
56. (1) A donor may, in an enduring power of attorney, appoint more than one attorney and may specify that the attorneys shall act—
(a) jointly,
(b) jointly and severally, or
(c) jointly in respect of some matters and jointly and severally in respect of other matters,
and, in default of the power so specifying, the attorneys shall be deemed to have authority to to act jointly.
(2) Where 2 or more persons have authority to act jointly as attorneys, then, in the case of the death, lack of capacity or disqualification of any one or more of them, the remaining attorney or attorneys may continue to act, whether solely or jointly, as the case may be, unless the enduring power expressly provides to the contrary.".
Seanad amendment agreed to.
Seanad amendment No. 183:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Persons who are not eligible to be attorneys
57. (1) A person shall not be eligible for appointment as an attorney under an enduring power of attorney if he or she—
(a) has been convicted of an offence in relation to the person or property of the person who intends to appoint an attorney,
(b) has been the subject of a safety or barring order in relation to the person who intends to appoint an attorney,
(c) is an undischarged bankrupt or is currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty,
(d) is a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,
(e) is a person who is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Act of 2014, by virtue of that Chapter or any other provisions of that Act,
(f) is a person who is—
(i) the owner or the registered provider of a designated centre or mental health facility in which the intending donor resides, or
(ii) residing with, or an employee or agent of, such owner or registered provider,
unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the intending donor, or
(g) has been convicted of an offence under section 31, 72, 73 or 128.
(2) Subsection (1)(c), (d) and (e) shall not apply where it is proposed to confer authority only in relation to personal welfare matters.".
Seanad amendment agreed to.
Seanad amendment No. 184:
Section 50: In page 58, between lines 17 and 18, to insert the following:
“Disqualification of attorney
58. (1) An attorney shall, with effect from the date on which an event specified in any of paragraphs (a) to (c) occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, and unless the instrument creating the enduring power of attorney provides otherwise, be disqualified from being an attorney for the donor where the attorney is the spouse of the donor and subsequently—
(a) the marriage is annulled or dissolved either—
(i) under the law of the State, or
(ii) under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State,
(b) a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect,
(c) a written agreement to separate is entered into between the spouses, or
(d) subject to section 2(2), the spouses separate and cease to cohabit for a continuous period of 12 months.
(2) An attorney shall, with effect from the date on which an event specified in paragraph (a) or (b) occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, and unless the instrument creating the enduring power of attorney provides otherwise, be disqualified from being attorney for the donor where the attorney is the civil partner of the donor and subsequently—
(a) the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either—
(i) under the law of the State, or
(ii) under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State,
(b) a written agreement to separate is entered into between the civil partners, or
(c) subject to section 2(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.
(3) Subject to section 2(2), an attorney shall, at the expiry of the period referred to in this subsection, and unless the instrument creating the enduring power of attorney provides otherwise, be disqualified from being an attorney for the donor where the attorney is the cohabitant of the donor and subsequently the cohabitants separate and cease to cohabit for a continuous period of 12 months.
Seanad amendment agreed to.
Seanad amendment No. 185:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Function of court prior to registration
59. On application to it by any interested party, the court may, where it has reason to believe that the donor of an enduring power of attorney lacks capacity in relation to one or more relevant decisions, exercise any power which would become exercisable under section 69(3) on the registration of the instrument creating an enduring power of attorney and may do so whether or not the attorney concerned has made an application to the Director for registration of the instrument.".
Seanad amendment agreed to.
Seanad amendment No. 186:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Application for registration of instrument creating enduring power
60. (1) Where an attorney has reason to believe that the donor lacks capacity in relation to one or more relevant decisions which are the subject of the enduring power of attorney, the attorney shall, as soon as is practicable, make an application, in compliance with this Part and regulations made under section 71, to the Director to register the instrument creating the enduring power of attorney.
(2) An application to register an instrument under subsection (1) shall be made in such form and accompanied by such fee as shall be prescribed.
(3) The attorney shall, at the same time as he or she makes an application under subsection (1), give notice, in such form as shall be prescribed, of the application and give a copy of the instrument creating an enduring power of attorney to the following persons:
(a) the donor;
(b) a spouse or civil partner (if any) of the donor;
(c) the cohabitant (if any) of the donor;
(d) any children of the donor who have attained the age of 18 years;
(e) any decision-making assistant for the donor;
(f) any co-decision-maker for the donor;
(g) any decision-making representative for the donor;
(h) any designated healthcare representative for the donor;
(i) any other attorney for the donor or attorney under the Act of 1996 in respect of the donor;
(j) any other person specified by the donor under section 53.
(4) An attorney may, before making an application to register an instrument creating an enduring power of attorney, apply to the court for a determination on any question as to the validity of the power.
(5) Where an attorney has made an application to register an instrument creating an enduring power of attorney, then pending determination of the application, the attorney, or if more than one attorney has been appointed to act jointly or jointly and severally, as the case may be, any one of them, may take action under the power—
(a) to maintain the donor or prevent loss to the donor’s assets,
(b) to the extent permitted by the enduring power, to make a relevant decision which cannot reasonably be deferred until the application has been determined, or
(c) to maintain the attorney or other persons in so far as that is permitted under the power.
(6) Following the taking of an action pursuant to subsection (5), an attorney shall report to the Director—
(a) what action he or she took,
(b) the reasons as to why the action could not be deferred until after the registration of the instrument creating the enduring power of attorney,
(c) any measures he or she took to encourage the donor to participate in the action taken, and
(d) the outcome of the action.
(7) An application to register an instrument creating an enduring power of attorney shall be accompanied by—
(a) the instrument creating the enduring power of attorney,
(b) a statement by a registered medical practitioner and a statement by such other healthcare professional of a class as shall be prescribed that in their opinion the donor lacks capacity in relation to one or more relevant decisions which are the subject of the enduring power,
(c) details of any existing decision-making assistance agreement, co-decision-making agreement, decision-making order, decision-making representation order, power of attorney (whether an enduring power or otherwise and whether registered or not) or advance healthcare directive in respect of the appointer,
(d) a copy of any notice given pursuant to subsection (3),
(e) a copy of any notice given pursuant to section 53, and
(f) the prescribed fee.
(8) Where there is more than one attorney appointed under an enduring power of attorney, any two or more of the attorneys may make a joint application to register the instrument.".
Seanad amendment agreed to.
Seanad amendment No. 187:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Registration of an instrument creating an enduring power of attorney
61. (1) On receipt of an application under section 60, the Director shall review the application and any objections received under section 63 and shall carry out such reasonable enquiries as he or she considers necessary in order to establish whether the following criteria are met:
(a) the enduring power of attorney and the instrument creating it are in accordance with sections 51, 52, 54 and 55,
(b) the attorney is a suitable person within the meaning of section 51(6),
(c) the attorney is eligible for appointment within the meaning of section 57 or not disqualified by virtue of section 58,
(d) notice has been given in accordance with section 53 and section 60(3), and
(e) the application is in accordance with section 60.
(2) Where, after reviewing an application under section 60, the Director is satisfied that the application is in order, he or she shall, subject to section 63, register the instrument creating the enduring power of attorney.
(3) Where, after reviewing an application under section 60, the Director forms the view that one or more of the criteria in paragraphs (a) to (e) of subsection (1) are not satisfied, he or she shall notify the attorney and the donor of his or her view, provide reasons for that view and give the attorney and the donor an opportunity, within a reasonable timeframe specified by the Director, to respond.
(4) Following a review of any response received pursuant to subsection (3), the Director shall—
(a) where he or she is of the view that the criteria set out in paragraphs (a) to (e) of subsection (1) are satisfied, register, subject to section 63, the instrument creating the enduring power of attorney, or
(b) where he or she remains of the view that one or more of the criteria set out in paragraphs (a) to (e) of subsection (1) is not satisfied, refuse to register the instrument creating the enduring power of attorney and notify the attorney and the donor of that fact and the reasons for his or her view.
(5) An attorney whose application under section 60 is refused may, not later than 21 days after the date of issue of the notification of refusal by the Director, appeal the refusal to the court.
(6) Upon an appeal under subsection (5), the court may—
(a) require the Director to register the instrument creating the enduring power of attorney,
(b) affirm the decision of the Director, or
(c) make such other order or declaration as it considers appropriate.
(7) Following registration of an instrument creating an enduring power of attorney, the Director shall send an authenticated copy of the instrument to the attorney and the donor.
(8) A document purporting to be a copy of instrument creating an enduring power of attorney which has been authenticated by the Director shall be evidence of the contents of the instrument and the date upon which it was registered.".
Seanad amendment agreed to.
Seanad amendment No. 188:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Effect and proof of registration
62. (1) The effect of the registration of an instrument creating an enduring power of attorney is that—
(a) no revocation of the enduring power of attorney by the donor shall be valid unless the court confirms the revocation under section 65(6),
(b) no disclaimer of the enduring power shall be valid except on notice to the donor and with the consent of the court, and
(c) the donor may not extend or restrict the scope of the authority conferred by him or her in the enduring power and no consent or instruction given by the donor after registration of the instrument shall, in the case of a consent, confer any right and in the case of an instruction, impose or confer any obligation or right on or create any liability of the attorney or other persons having notice of the consent or instruction.
(2) Subsection (1) applies for so long as the instrument is registered whether or not the donor has for the time being capacity.".
Seanad amendment agreed to.
Seanad amendment No. 189:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Objections to registration
63. (1) Any of the persons referred to in section 60(3), or any other person who appears to the Director to have sufficient interest or expertise in the welfare of the donor, may, no later than 5 weeks from the date on which notice is given in accordance with that provision, notify the Director that he or she objects to the proposed registration.
(2) An objection under subsection (1) shall be in such form and shall be accompanied by such fee as shall be prescribed by regulations made under section 71 and may be made on one or more of the following grounds:
(a) that the enduring power of attorney or instrument creating it is not in accordance with section 51, 52, 54 or 55;
(b) that the notice requirement of section 53 or section 60(3) was not complied with;
(c) that the donor does not lack capacity;
(d) that fraud, coercion or undue influence was used to induce the donor to execute the instrument creating the enduring power of attorney;
(e) that a false statement is included in the instrument creating the enduring power of attorney or the application to register the instrument;
(f) that the attorney is not a suitable person within the meaning of section 51(6).
(3) Where the Director receives an objection in accordance with subsection (2), made within the period specified in subsection (1), he or she shall—
(a) review the objection,
(b) consult with the attorney and, where the Director considers it is appropriate to do so, the donor, and
(c) consult with such other persons as he or she considers relevant,
and shall—
(i) where he or she is of the view that the objection is not well founded, notify the person who made the objection of his or her view, provide reasons for that view and proceed, subject to section 61(1), to register the instrument concerned, or
(ii) where he or she is of the view that the objection is well founded, notify the person who made the objection of his or her view and make an application to the court for a determination on the matter and for a determination as to whether the enduring power should be registered.
(4) The court, pursuant to an application made to it under subsection (3)(ii), may—
(a) require the Director to register the instrument creating the enduring power of attorney,
(b) declare that the instrument creating the enduring power of attorney should not be registered, or
(c) make such other declaration or order as it considers appropriate.
(5) A person who makes an objection under subsection (1) may, not later than 21 days after the date of issue of the notification by the Director under subsection (3)(i), appeal a decision to register the instrument concerned to the court.
(6) Upon an appeal under subsection (5), the court may—
(a) require the Director to remove the instrument concerned from the Register,
(b) affirm the decision of the Director, or
(c) make such other declaration or order as it considers appropriate.”.
Seanad amendment agreed to.
Seanad amendment No. 190:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Register of enduring powers
64. (1) The Director shall establish and maintain a register (in this Part referred to as “the Register”) of instruments creating an enduring power of attorney.
(2) The Register shall be in such form as the Director considers appropriate.
(3) The Director shall make the Register available for inspection by—
(a) a body or class of persons prescribed by regulations made under section 71 for this purpose, and
(b) any person who satisfies the Director that he or she has a legitimate interest in inspecting the Register.
(4) The Director may issue an authenticated copy of an enduring power, or part thereof, on the Register on payment of the prescribed fee to—
(a) a body or class of person prescribed by regulations made under section 71 for this purpose, and
(b) a person who satisfies the Director that he or she has a legitimate interest in obtaining a copy.
(5) The Director shall keep a record of any body or person that has inspected the Register or received an authenticated copy from him or her.".
Seanad amendment agreed to.
Seanad amendment No. 191:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Revocation and variation of enduring power
65. (1) An enduring power of attorney may be varied or revoked by the donor, where the instrument creating the enduring power of attorney has not been registered and where the donor has capacity to make the variation or revocation, as the case may be.
(2) A variation or revocation under subsection (1) shall be done in such form as shall be prescribed.
(3) Subject to section 52(3), a revocation or variation of an enduring power of attorney shall be signed by the donor and his or her signature shall be acknowledged by 2 witnesses and section 52(4) shall apply with the necessary modifications.
(4) A variation or revocation of an enduring power of attorney shall be accompanied by the following statements:
(a) by the donor, that he or she understands the implication of varying or revoking the enduring power, as the case may be;
(b) by a legal practitioner that, after interviewing the donor and making any necessary enquiries, he or she—
(i) is satisfied that the donor understands the implication of varying or revoking, as the case may be, the enduring power, and
(ii) has no reason to believe that the variation or revocation, as the case may be, is the result of fraud, coercion or undue pressure on the donor;
(c) by a registered medical practitioner that in his or her opinion, at the time of the variation or revocation, as the case may be, the donor had the capacity to understand the implication of the variation or revocation;
(d) by such other healthcare professional as shall be prescribed that in his or her opinion, at the time of the variation or revocation, as the case may be, the donor had the capacity to understand the implication of the variation or revocation; and
(e) by the attorney, that he or she is aware of the variation or revocation and undertakes to act accordingly.
(5) Subject to subsection (6) a donor may, after an instrument creating an enduring power of attorney has been registered, revoke the enduring power where he or she has capacity to do so.
(6) A revocation referred to in subsection (5) is not valid unless an application is made to the court and the court is satisfied that—
(a) the donor has done whatever is necessary in law to effect an express revocation of the enduring power of attorney and had capacity at the time of the purported revocation, and
(b) the donor has given notice to the attorney of the revocation.”.
Seanad amendment agreed to.
Seanad amendment No. 192:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Disclaimer by attorney
66. (1) An attorney may disclaim an enduring power of attorney where the instrument creating it has not been registered subject to his or her giving notice of such disclaimer, to the donor.
(2) Where an instrument creating an enduring power of attorney has been registered, the enduring power created by the instrument may only be disclaimed by an attorney with the consent of the court.".
Seanad amendment agreed to.
Seanad amendment No. 193:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Reports by attorney
67. (1) An attorney under an enduring power of attorney which confers authority in relation to property and affairs shall, within 3 months of the registration of the instrument appointing him or her as attorney, submit to the Director a schedule of the donor’s assets and liabilities and a projected statement of the donor’s income and expenditure.
(2) An attorney under an enduring power of attorney which confers authority in relation to property and affairs shall keep proper accounts and financial records in respect of the donor’s income and expenditure and shall—
(a) submit such accounts and records as part of a report to the Director under this section, and
(b) make available for inspection by the Director or by a special visitor, at any reasonable time, such accounts and records.
(3) An attorney shall, within 12 months after registration of the instrument appointing him or her as attorney, and thereafter at intervals of not more than 12 months, prepare and submit to the Director a report in writing as to the performance of his or her functions as such attorney during the relevant period.
(4) Every report submitted to the Director pursuant to this section shall be in such form as shall be prescribed by regulations made under section 71 and shall include details of all costs, expenses and remuneration paid to and claimed by the attorney in the relevant period together with such other matters as are prescribed.
(5) An attorney who has restrained the donor at any time during the relevant period shall include in the report details of each such restraint and the date on which, and the place where, such restraint occurred.
(6) Where an attorney fails to submit a report in accordance with this section or submits an incomplete report or fails to comply with subsection (1) or (2), the Director shall notify the attorney of that failure or incompleteness and give him or her such period of time as is specified in the notification to comply or submit a complete report.
(7) Where an attorney fails to comply with a notification under subsection (6), the Director shall—
(a) in the case of the submission of an incomplete report and following any necessary enquiries to satisfy himself or herself that the report is substantially in accordance with this section and regulations made under section 71, accept the report as if it were in compliance with this section and the relevant regulations, or
(b) make an application to the court for a determination as to whether the co-decision- maker should continue as attorney for the donor.
(8) Pursuant to an application to it under subsection (7)(a), the court may determine that an attorney who has not complied with this section shall no longer act as attorney for the donor concerned.
(9) In this section “relevant period” means the period of time to which the report relates which shall be the period of time between the date of registration of the instrument creating the enduring power of attorney or the date of submission of the previous report, as the case may be, and the date immediately preceding the date of submission of the report concerned.".
Seanad amendment agreed to.
Seanad amendment No. 194:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Complaints in relation to attorneys
68. (1) A person may make a complaint in writing to the Director concerning one or more of the following matters:
(a) that an attorney has acted, is acting, or is proposing to act outside the scope of his or her functions as specified in the instrument creating the enduring power of attorney;
(b) that an attorney is not a suitable person within the meaning of section 51(6);
(c) that fraud, coercion or undue pressure was used to induce a donor to appoint an attorney.
(2) A person may, in respect of an attorney under the Act of 1996, make a complaint in writing to the Director concerning one or more of the following matters:
(a) that an attorney under the Act of 1996, is acting or is proposing to act outside the scope of the enduring power under the Act of 1996;
(b) that an attorney under the Act of 1996 is unable, for whatever reason, to perform his or her duties and obligations as construed in accordance with that Act;
(c) that fraud, coercion or undue pressure was used to induce a donor under the Act of 1996 to appoint an attorney under the Act of 1996.
(3) Following the receipt of a complaint under subsection (1) or (2), the Director shall carry out an investigation of the matter which is the subject of that complaint and—
(a) where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to a matter specified in the complaint, or
(b) where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for that view.
(4) A person who receives a notification under subsection (3)(b) may, not later than 21 days after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.
(5) The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an investigation and make an application to the court for a determination in relation to any matter specified in subsection (1) or (2).
(6) The court may—
(a) pursuant to an application to it under subsection (3)(a) or (5), or
(b) pursuant to an appeal under subsection (4),
make a determination in relation to a matter specified in subsection (1) or (2) and may, if it considers it appropriate, determine that—
(i) an attorney shall no longer act as such in relation to the donor concerned, or
(ii) an attorney under the Act of 1996 shall no longer act as such in relation to a donor under the Act of 1996.
(7) The reference to “attorney” in sections 78 and 79 shall, for the purposes of this section, be construed as including an attorney under the Act of 1996.
(8) The reference to “relevant person” in sections 78, 79 and 82 shall, for the purposes of this section, be construed as including a donor under the Act of 1996.".
Seanad amendment agreed to.
Seanad amendment No. 195:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Applications to court
69. (1) Where the Director makes an application to the court for a determination on whether the instrument creating an enduring power of attorney should be registered, the court may, notwithstanding that—
(a) the enduring power of attorney or the instrument creating it does not comply with section 51 or section 52, or
(b) the application to register the instrument was not in accordance with section 60, register the instrument where it is satisfied that—
(i) the donor intended the power to be effective during any period when the donor lacks capacity,
(ii) fraud, coercion or undue pressure was not used to induce the donor to appoint an attorney,
(iii) the attorney is suitable within the meaning of section 51(6) to be the donor’s attorney, and
(iv) it is desirable in the interests of justice to register the enduring power.
(2) In determining whether an attorney is suitable within the meaning of section 51(6), the court, in addition to any other matters which it considers relevant shall have regard to—
(a) the relationship and degree of connection between the donor and the attorney,
(b) the degree of involvement which will be required on the part of the attorney in the care of the donor,
(c) the willingness of the attorney to carry out his or her functions under the enduring power, and
(d) any conflict of interest which may arise.
(3) Where an instrument creating an enduring power of attorney has been registered, the court may, whether on application by the donor, the attorney, the Director or an interested party—
(a) determine any question as to the meaning or effect of the power,
(b) give directions with respect to—
(i) a relevant decision relating to the personal welfare of the donor made or about to be made by the attorney,
(ii) the management or disposal by the attorney of the property and affairs of the donor, and
(iii) the remuneration or expenses of the attorney, whether or not in default of or in accordance with any provision of the enduring power, including directions for the repayment of excessive, or the payment of additional, remuneration,
and
(c) consent to a disclaimer by the attorney of enduring power.
(4) Where the court gives a determination under subsection (3)(a), a direction under subsection (3)(b) or a consent under subsection (3)(c), it shall cause the Director to be notified of such direction or consent and the Director shall monitor the giving of effect by the attorney to such direction or consent as the case may be.".
Seanad amendment agreed to.
Seanad amendment No. 196:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Removal of instrument from the Register
70. (1) The Director shall remove from the Register an instrument creating an enduring power of attorney where—
(a) there has been a revocation in accordance section 65(6), or
(b) subject to subsection (2), the attorney appointed under the instrument becomes disqualified.
(2) Where there is more than one attorney appointed under an enduring power of attorney or where the donor has specified a person who shall act as attorney for him or her in the event that the attorney on whom the authority is conferred dies or is unable to act or is disqualified, then in the circumstances described in subsection (1), the Director shall note on the Register in connection with the power concerned the revocation or disqualification, as the case may be.".
Seanad amendment agreed to.
Seanad amendment No. 197:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Regulations
71. The Minister, having regard to the requirements of this Part, shall prescribe by regulations the following matters:
(a) the form of an instrument creating an enduring power of attorney;
(b) the form of notice under section 53 of execution of an instrument creating an enduring power of attorney;
(c) the class of healthcare professionals under sections 52(1)(d), 60(7)(b) and 65(4)(d);
(d) the form of application under section 60(2) to register an instrument;
(e) the form of notice under section 60(3) of an application to register an instrument;
(f) the form of a report under section 67 to be submitted by an attorney to the Director;
(g) the form of an objection under section 63(2) to the registration of an instrument creating an enduring power of attorney;
(h) the form of variation or revocation under section 65(2) of an enduring power of attorney;
(i) the bodies or classes of persons under sections 64(3) and (4) who may inspect the Register and receive an authenticated copy of an enduring power of attorney;
(j) the fees to be paid in connection with—
(i) an application to register an enduring power of attorney,
(ii) an objection to an application to register an enduring power of attorney,
(iii) the issue of an authenticated copy of an enduring power of attorney.".
Seanad amendment agreed to.
Seanad amendment No. 198:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Offences in relation to enduring powers of attorney
72. (1) A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke an enduring power of attorney commits an offence and shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.
(2) A person who, in an instrument creating an enduring power of attorney, in an application for registration of an enduring power of attorney, or in connection with such an application, makes a statement which he or she knows to be false in a material particular commits an offence and shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €15,000 or imprisonment for a term not exceeding 2 years, or both.
(3) The reference in subsection (1) to coercion or undue influence includes any case where a person’s access to, or continued stay in, a designated centre or mental health facility, is contingent (whether in whole or in part) on the person having to, or being led to believe that he or she has to, create, vary or revoke an enduring power of attorney.".
Seanad amendment agreed to.
Seanad amendment No. 199:
Section 50: In page 58, between lines 17 and 18, to insert the following:
"Transitional provisions
73. (1) Subject to sections 68(2), 68(3), 68(4), 68(5), 68(6), 68(7) and 68(8), this Part shall not apply to—
(a) an enduring power of attorney under the Act of 1996,
(b) an attorney under the Act of 1996, and
(c) a donor under the Act of 1996.
(2) From the date of commencement of this Part—
(a) a person shall not create an enduring power of attorney under the Act of 1996,
and
(b) the Act of 1996 shall not apply to an enduring power of attorney created after that date.".
Seanad amendment agreed to.
Seanad amendment No. 200:
Section 50: In page 58, to delete lines 20 to 35, and in page 59, to delete line 1.
Seanad amendment agreed to.
Seanad amendment No. 201:
Section 51: In page 59, to delete lines 2 to 20.
Seanad amendment agreed to.
Seanad amendment No. 202:
Section 52: In page 59, to delete lines 21 to 37, to delete pages 60 to 62, and in page 63, to delete lines 1 to 22.
Seanad amendment agreed to.
Seanad amendment No. 203:
Section 53: In page 63, to delete lines 25 to 39, and in page 64, to delete lines 1 to 22.
Seanad amendment agreed to.
Seanad amendment No. 204:
Section 54: In page 64, to delete lines 23 to 41, and in page 65, to delete lines 1 to 21.
Seanad amendment agreed to.
Seanad amendment No. 205:
Section 55: In page 65, to delete lines 22 to 38.
Seanad amendment agreed to.
Seanad amendment No. 206:
Section 56: In page 66, to delete lines 3 to 10.
Seanad amendment agreed to.
Seanad amendment No. 207:
Section 57: In page 66, to delete lines 11 to 36.
Seanad amendment agreed to.
Seanad amendment No. 208:
Section 58: In page 66, to delete lines 37 and 38, and in page 67, to delete lines 1 to 38.
Seanad amendment agreed to.
Seanad amendment No. 209:
Section 59: In page 68, to delete lines 1 to 20.
Seanad amendment agreed to.
Seanad amendment No. 210:
Section 60: In page 68, to delete lines 21 to 35.
Seanad amendment agreed to.
Seanad amendment No. 211:
Section 61: In page 69, to delete lines 3 to 40, and in page 70, to delete lines 1 to 24.
Seanad amendment agreed to.
Seanad amendment No. 212:
Section 62: In page 70, to delete lines 25 to 38, and in page 71, to delete lines 1 to 17.
Seanad amendment agreed to.
Seanad amendment No. 213:
Section 63: In page 71, to delete lines 20 to 39, and in page 72, to delete lines 1 to 15.
Seanad amendment agreed to.
Seanad amendment No. 214:
Section 64: In page 72, to delete lines 16 to 40, and in page 73, to delete lines 1 to 15.
Seanad amendment agreed to.
Seanad amendment No. 215:
Section 65: In page 73, line 22, to delete “sections 67 and 68” and substitute “section 67”.
Seanad amendment agreed to.
Seanad amendment No. 216:
Section 67: In page 75, line 22, to delete “in accordance with subsection (6)” and substitute “referred to in subsection (6)(a)”.
Seanad amendment agreed to.
Seanad amendment No. 217:
Section 67: In page 75, line 29, to delete “subsection (6)” and substitute “subsection (6)(b)”.
Seanad amendment agreed to.
Seanad amendment No. 218:
Section 67: In page 75, line 38, to delete “(or the person signing on his or her behalf)” and substitute “or the person signing on his or her behalf,”.
Seanad amendment agreed to.
Seanad amendment No. 219:
Section 67: In page 76, line 34, to delete “step-child,”.
Seanad amendment agreed to.
Seanad amendment No. 220:
Section 67: In page 76, line 39, to delete “of the relevant person”.
Seanad amendment agreed to.
Seanad amendment No. 221:
Section 69: In page 78, line 29, to delete “specific”.
Seanad amendment agreed to.
Seanad amendment No. 222:
Section 69: In page 78, line 31, to delete “the refusal” and substitute “the advance healthcare directive”.
Seanad amendment agreed to.
Seanad amendment No. 223:
Section 69: In page 78, line 33, to delete “specific”.
Seanad amendment agreed to.
Seanad amendment No. 224:
Section 69: In page 78, line 34, after “directive” to insert “and”.
Seanad amendment agreed to.
Seanad amendment No. 225:
Section 69: In page 78, line 35, to delete “the refusal” and substitute “the advance healthcare directive”.
Seanad amendment agreed to.
Seanad amendment No. 226:
Section 69: In page 78, line 39, to delete “an advance healthcare directive” and substitute “a refusal of treatment set out in an advance healthcare directive”.
Seanad amendment agreed to.
Seanad amendment No. 227:
Section 69: In page 78, line 41, to delete “if”.
Seanad amendment agreed to.
Seanad amendment No. 228:
Section 70: In page 79, lines 19 and 20, to delete all words from and including “shall” in line 19 down to and including line 20 and substitute “shall not be eligible to be a designated healthcare representative if—”.
Seanad amendment agreed to.
Seanad amendment No. 229:
Section 70: In page 79, to delete lines 27 to 32 and substitute the following:
“(d) the individual is—
(i) the owner or the registered provider of a designated centre or mental health facility in which the directive-maker resides, or
(ii) a person residing with, or an employee or agent of, such owner or registered provider,
unless the individual is a spouse, civil partner, cohabitant, parent, child or sibling of the directive-maker, or”.
Seanad amendment agreed to.
Seanad amendment No. 230:
Section 70: In page 79, lines 38 and 39, to delete all words from and including “subsequent” in line 38 down to and including line 39 and substitute “subsequent to the designation of an individual as a designated healthcare representative—”.
Seanad amendment agreed to.
Seanad amendment No. 231:
Section 70: In page 80, to delete lines 5 to 10 and substitute the following:
“(c) the individual becomes—
(i) the owner or the registered provider of a designated centre or mental health facility in which the directive-maker resides, or
(ii) a person residing with, or an employee or agent of, such owner or registered provider,
unless the individual is a spouse, civil partner, cohabitant, parent, child or sibling of the directive-maker,”.
Seanad amendment agreed to.
Seanad amendment No. 232:
Section 70: In page 80, to delete line 11.
Seanad amendment agreed to.
Seanad amendment No. 233:
Section 70: In page 80, line 16, to delete “directive-maker,” and substitute “directive-maker, or”.
Seanad amendment agreed to.
Seanad amendment No. 234:
Section 70: In page 80, between lines 16 and 17, to insert the following:
“(e) the individual is unable, for whatever reason, to exercise the relevant powers,”.
Seanad amendment agreed to.
Seanad amendment No. 235:
Section 70: In page 80, to delete lines 17 to 19 and substitute the following:
“that individual shall not, from the date on which he or she falls within any of paragraphs (a) to (e), be permitted to exercise relevant powers.”.
Seanad amendment agreed to.
Seanad amendment No. 236:
Section 70: In page 80, to delete lines 22 to 24 and substitute the following:
“(5) Unless otherwise provided in the advance healthcare directive, a designated healthcare representative shall not, with effect from the date on which an event specified in any of paragraphs (a) to (c) occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, be permitted to exercise relevant powers where the representative is the spouse of the directive-maker and—”.
Seanad amendment agreed to.
Seanad amendment No. 237:
Section 70: In page 80, to delete lines 36 to 38 and substitute the following:
“(6) Unless otherwise provided in the advance healthcare directive, a designated healthcare representative shall not, with effect from the date on which an event specified in paragraphs (a) or (b) occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, be permitted to exercise relevant powers where the representative is the civil partner of the directive-maker and—”.
Seanad amendment agreed to.
Seanad amendment No. 238:
Section 70: In page 80, to delete line 39 and substitute the following:
“(a) the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either—
(i) under the law of the State, or
(ii) under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State,”.
Seanad amendment agreed to.
Seanad amendment No. 239:
Section 70: In page 81, to delete lines 3 to 6 and substitute the following:
“(7) Subject to section 2(2) and unless otherwise provided in the advance healthcare directive, a designated healthcare representative shall not, with effect from the expiry of the period referred to in this subsection, be permitted to exercise relevant powers where the representative is the cohabitant of the directive-maker and the cohabitants separate and cease to cohabit for a continuous period of 12 months.”.
Seanad amendment agreed to.
Seanad amendment No. 240:
Section 70: In page 81, to delete lines 7 to 9.
Seanad amendment agreed to.
Seanad amendment No. 241:
Section 71: In page 82, lines 7 and 8, to delete “invalidating the advance healthcare directive to the extent that it relates to” and substitute “prohibiting”.
Seanad amendment agreed to.
Seanad amendment No. 242:
Section 71: In page 82, line 8, after “representative” to insert “from”.
Seanad amendment agreed to.
Seanad amendment No. 243:
Section 71: In page 82, lines 19 and 20, to delete “(whether by reason of lack of capacity or otherwise) or declines to act,” and substitute “, for whatever reason, to exercise the relevant powers,”.
Seanad amendment agreed to.
Seanad amendment No. 244:
Section 71: In page 82, line 21, to delete “qualified” and substitute “eligible”.
Seanad amendment agreed to.
Seanad amendment No. 245:
Section 73: In page 83, line 10, to delete “shall be guilty of” and substitute “commits”.
Seanad amendment agreed to.
Seanad amendment No. 246:
Section 73: In page 83, line 18, to delete “so shall be guilty of” and substitute “so commits”.
Seanad amendment agreed to.
Seanad amendment No. 247:
Section 73: In page 83, lines 25 to 27, to delete all words from and including “a” where it secondly occurs in line 25 down to and including “disabilities,” in line 27 and substitute “a designated centre or mental health facility”.
Seanad amendment agreed to.
Seanad amendment No. 248:
Section 74: In page 85, line 12, to delete “Courts Service” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 249:
Section 75: In page 86, line 25, to delete “under section 58”.
Seanad amendment agreed to.
Seanad amendment No. 250:
Section 75: In page 86, to delete line 27 and substitute the following:
“(b) any decision-making order or decision-making representation order in respect of the directive-maker,”.
Seanad amendment agreed to.
Seanad amendment No. 251:
Section 75: In page 86, to delete lines 29 to 38, and in page 87, to delete lines 1 to 5.
Seanad amendment agreed to.
Seanad amendment No. 252:
Section 77: In page 87, line 26, to delete “Courts Service” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 253:
Section 77: In page 87, line 29, to delete “Courts Service” and substitute “Mental Health Commission”.
Seanad amendment agreed to.

Amendments Nos. 254 and 255 are related and may be discussed together.

Seanad amendment No. 254:
Section 78: In page 88, between lines 29 and 30, to insert the following:
“(h) to provide information and guidance to organisations and bodies in the State in relation to their interaction with decision-making assistants, co-decision-makers, decision-making representatives, attorneys and designated healthcare representatives,”.

Seanad amendments Nos. 165 and 166 are interesting. They amend the Civil Legal Aid Act 1995 to ensure people whose capacity is to be challenged or assessed in court have an automatic right to representation by the Legal Aid Board and the board has the right to charge but only to the limit of the fee set by the Legal Aid Board. If one is entitled to free legal aid, then well and good, and the same criteria will apply. There is nothing to prevent people who wish to use their own legal team from doing so. These amendments ensure those who do not have that facility are represented. It is also important that representation at mental health tribunals will also transfer to the Legal Aid Board. These are significant amendments.

Seanad amendments Nos. 254 and 255 provide for minor amendments to the functions of the director of the decision support service. Seanad amendment No. 254 proposes a new function for the director to inform and guide organisations, including State organisations, when dealing with the range of interveners specified under the Bill. This issue came up regularly regarding the educational process that needs to be undertaken. He or she will have to provide information and guidance on dealing with attorneys, decision-making representatives, etc. The intention is that, as a result of this information and guidance, organisations will know exactly when to provide information to interveners.

Seanad amendment No. 255 allows the decision support service to charge fees for its services. It is appropriate that the service has this possibility, in line with international practice. Some of the functions that it will undertake will be time-consuming. Some of the organisations with which it will interact will be very wealthy. Where a vulnerable person or a family has limited means, the possibility will be available for the fees to be waived.

Seanad amendment agreed to.
Seanad amendment No. 255:
Section 78: In page 89, between lines 1 and 2, to insert the following:
“(3) The Director, with the consent of the Minister, may, and if directed by the Minister to do so and in accordance with the terms of the direction, shall prescribe by regulations the fees to be paid to him or her and when they fall due in respect of—
(a) the performance of functions,
(b) the provision of services, and
(c) the provision of information and guidance,
by him or her under the Act.
(4) Without prejudice to the generality of subsection (3), the Director’s power under that subsection to prescribe fees includes the power to provide for exemptions from the payment of fees, in different circumstances or classes of circumstances or in different cases or classes of cases.”.
Seanad amendment agreed to.
Seanad amendment No. 256:
Section 80: In page 90, line 5, to delete “Courts Service” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 257:
Section 80: In page 90, line 5, to delete “Minister” and substitute “Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 258:
Section 80: In page 90, to delete lines 8 and 9 and substitute the following:
“(3) A person appointed to be Director shall be a member of the staff of the Mental Health Commission.”.
Seanad amendment agreed to.
Seanad amendment No. 259:
Section 81: In page 90, lines 13 to 15, to delete all words from and including “(1) A” in line 13 down to and including line 15 and substitute the following:
“(1) A person who is a member of the staff of the Director shall be a member of the staff of the Mental Health Commission and the provisions of Part 3 of the Act of 2001 shall apply to such staff.”.
Seanad amendment agreed to.
Seanad amendment No. 260:
Section 81: In page 90, line 17, to delete “Courts Service” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 261:
Section 81: In page 90, line 24, to delete “Courts Service” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 262:
Section 81: In page 90, line 25, to delete “Minister” where it firstly occurs and substitute “Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 263:
Section 81: In page 90, line 29, to delete “Courts Service” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 264:
Section 81: In page 90, line 29, to delete “Minister” and substitute “Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 265:
Section 81: In page 90, to delete lines 31 to 34.
Seanad amendment agreed to.
Seanad amendment No. 266:
Section 81: In page 90, line 35, to delete “Courts Service” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 267:
Section 81: In page 90, line 39, to delete “Minister” where it firstly occurs and substitute “Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 268:
Section 81: In page 90, line 40, to delete “Courts Service” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 269:
Section 82: In page 91, line 18, to delete “Minister” where it firstly occurs and substitute “Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 270:
Section 82: In page 91, to delete lines 28 to 39 and substitute the following:
“(6) Subject to subsections (7) and (8), for the purposes of enabling the Director to perform his or her functions, he or she may direct a special visitor or general visitor to—
(a) at any reasonable time, examine and take copies of any health, personal welfare or financial record held in relation to a relevant person by any person, body or organisation, and
(b) interview a relevant person in private or otherwise than in public.”.
Seanad amendment agreed to.
Seanad amendment No. 271:
Section 82: In page 92, between lines 3 and 4, to insert the following:
“(8) Prior to taking an action pursuant to paragraph (a) of subsection (6), the special visitor or general visitor, as the case may be, shall seek the consent of the relevant person to the taking of such action, unless the Director dispenses with this requirement where—
(a) there has been a declaration under section 34(1)(b) in respect of the person, or
(b) an enduring power of attorney has been registered in respect of the person.
(9) A special visitor or general visitor shall not—
(a) attempt to obtain information that is not reasonably required for the purposes referred to in subsection (6), or
(b) use such information for a purpose that is not in accordance with this section.
(10) A special visitor or general visitor shall take reasonable steps to ensure that any information obtained pursuant to this section is—
(a) kept secure from unauthorised access, use or disclosure, and
(b) safely disposed of when he or she believes it is no longer required.
(11) The Director shall, on an annual basis, carry out checks to ascertain if special visitors and general visitors are complying with subsections (9) and (10).”.
Seanad amendment agreed to.
Seanad amendment No. 272:
Section 83: In page 92, to delete lines 12 to 24 and substitute the following:
“(3) Subject to subsections (4) and (5), for the purposes of assisting a relevant person in relation to an application under Part 5, a court friend may—
(a) at any reasonable time, examine and take copies of any health, personal welfare or financial record held in respect of the relevant person by any person, body or organisation, and
(b) interview the relevant person in private or otherwise than in public.”.
Seanad amendment agreed to.
Seanad amendment No. 273:
Section 83: In page 92, between lines 26 and 27, to insert the following:
“(5) Prior to taking an action pursuant to paragraph (a) of subsection (3), the court friend shall seek the consent of the relevant person to the taking of such action, unless the Director dispenses with this requirement where—
(a) there has been a declaration under section 34(1)(b) in respect of the person, or
(b) an enduring power of attorney has been registered in respect of the person.
(6) A court friend shall not—
(a) attempt to obtain information that is not reasonably required for the purposes referred to in subsection (3), or
(b) use such information for a purpose other than provided for in that subsection.
(7) A court friend shall take reasonable steps to ensure that any information obtained pursuant to this section is—
(a) kept secure from unauthorised access, use or disclosure, and
(b) safely disposed of when he or she believes it is no longer required.
(8) The Director shall, on an annual basis, carry out checks to ascertain if court friends are complying with subsections (6) and (7).”.
Seanad amendment agreed to.
Seanad amendment No. 274:
Section 85: In page 93, line 14, to delete “Board” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 275:
Section 85: In page 93, line 19, to delete “Board” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 276:
Section 85: In page 93, line 20, to delete “Minister” and substitute “Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 277:
Section 85: In page 93, line 20, to delete “Board” and substitute “Commission”.
Seanad amendment agreed to.
Seanad amendment No. 278:
Section 85: In page 93, line 23, to delete “Board” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 279:
Section 85: In page 93, line 29, to delete “Board” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 280:
Section 85: In page 93, line 30, to delete “Minister” and substitute “Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 281:
Section 85: In page 93, line 31, to delete “Minister” and substitute “Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 282:
Section 85: In page 93, line 32, to delete “Board” and substitute “Commission”.
Seanad amendment agreed to.
Seanad amendment No. 283:
Section 85: In page 93, line 34, to delete “Board” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 284:
Section 85: In page 93, line 34, to delete “Minister” and substitute “Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 285:
Section 85: In page 93, line 37, to delete “drawing to the Board’s and the Minister’s attention” and substitute “drawing to the attention of the Mental Health Commission and the Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 286:
Section 85: In page 94, line 1, to delete “Board” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 287:
Section 85: In page 94, line 2, to delete “Minister” and substitute “Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 288:
Section 85: In page 94, line 3, to delete “Minister” and substitute “Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 289:
Section 86: In page 95, to delete line 6.
Seanad amendment agreed to.
Seanad amendment No. 290:
Section 86: In page 95, line 29, to delete “Board” and substitute “Mental Health Commission and Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 291:
Section 86: In page 95, line 31, to delete “Minister after consultation with the Minister for Health and the Board” and substitute “Minister for Health after consultation with the Minister and the Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 292:
Section 86: In page 96, line 23, to delete “Courts Service” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 293:
Section 87: In page 97, to delete lines 6 to 9.
Seanad amendment agreed to.
Seanad amendment No. 294:
Section 89: In page 97, line 25, to delete “Courts Service” and substitute “Mental Health Commission”.
Seanad amendment agreed to.
Seanad amendment No. 295:
Section 128: In page 110, between lines 35 and 36, to insert the following:
“Amendment of Act of 2001
128. The Act of 2001 is amended—
(a) in section 17(1), by deleting paragraph (b) and substituting the following:
“(b) arrange for the assignment of a legal representative to represent the patient concerned unless he or she proposes to engage one,”,
and
(b) in section 33(3) by deleting paragraph (c).”.
Seanad amendment agreed to.
Seanad amendment No. 296:
Section 129: In page 111, line 3, after “shall” to insert “, in consultation with the Minister for Health”.
Seanad amendment agreed to.
Seanad amendment No. 297:
Schedule 1: In page 112, to delete lines 1 to 38, to delete page 113, and in page 114, to delete lines 1 to 22.
Seanad amendment agreed to.
Seanad amendment No. 298:
Schedule 2: In page 115, to delete lines 1 to 8.
Seanad amendment agreed to.

I do not want to hold up proceedings but I thank the Deputies opposite who have taken an interest in the Bill. It is technical, long and complex and has been amended dramatically. It is not the same Bill as originally presented. From time to time, it must have seemed cumbersome and difficult to come to terms with. I appreciate their interest because no legislation should go unchallenged through the Parliament. It makes us think differently and makes us understand things a little bit better.

I thank those who have taken an intense and long interest in this legislation, some of whom are in the Public Gallery today. They have followed and driven the Bill and advised us all along. We are deeply grateful to all of those people. For the organisations that have been waiting on it, it has been a long time coming. As Deputy Keaveney rightly points out, we are repealing the Lunacy Regulation (Ireland) Act 1871 and the Marriage of Lunatics Act 1811. It seems difficult to comprehend now that at the time, legislation that recognised there was a difficulty in some people's lives was considered to be revolutionary. We think differently now, are in a different space and understand more, which is why this legislation is so important. It will allow people to make decisions for themselves even if those decisions are not ones we would make ourselves. It is hugely important to understand that people who may have limited capacity in one area can have complete capacity in another. This defines the level of capacity and is hugely important to allow people to express their will and preference on any given issue. It is also time based.

I am sure the officials from the Department of Justice and Equality who have worked on this for the past four years have been very frustrated by it from time to time but nevertheless have been entirely committed to a good outcome. We are very well served by officials who work in our Departments. For the most part they are invisible and they do not come out and make statements to the papers - or, at least, they do not put their names to them if they do. That is a joke by the way. The people of Ireland can be truly grateful that they work on their behalf. When there is collaboration to do something right and proper, one sees the talent we have in this country coming to the fore. I thank them all because so many people are waiting on this legislation.

I will tell a story I have told in the Seanad. A family came to see me recently - someone they loved very much was awaiting a wardship hearing. The person was an adult and did not want to have that hearing. They had certain limits but were perfectly capable of making decisions and living as complete a life as any one of us. The judge wrote to him and suggested he look for an adjournment because this legislation was coming in. This judge was enlightened and it shows that people we do not even know about were waiting for this legislation and watching it with great interest. Sometimes we think we are talking in a bubble in here but an awful lot of people watch what we are doing.

I wish everyone a very happy Christmas. I hope it will be peaceful and not too many crises will arise. As someone working in the Department of Health, I can state that we always dread Christmas week.

I again congratulate on her appointment the first woman in the history of this parliament to become deputy head usher. I foresee great things for her. It is amazing that women now hold such decision-making positions in this country. The next election will see far more of that.

I welcome the Minister of State's comments. Many human rights advocacy groups have been calling for this legislation. As the Minister of State has said, it has been 144 years in the melting pot, and irrespective of the nuance of the language, it was as complex then as it has been for the team in the Department of Justice and Equality who have managed to get to this juncture through their dedication, commitment and action. I want to be associated with those acknowledgments.

Progress on the Bill was slow - it was subject to many amendments. We have always said it is far from perfect. I do not think any legislation that has ever gone through this House has been perfect, so it is no reflection on the people who have engineered to get to this juncture. It must be borne in mind that the Bill is being introduced on the back of many bad policy decisions in the area of disability. There are long waiting lists for services, social welfare and protections have been attacked for people with disability and the health service is overwhelmed with demands. There is also a concern around congregated settings and the abysmally slow and under-funded reforms required in that area. That is not to distract from the principle and spirit of the legislation. I am delighted and hope that this will put to an end a dark chapter of abysmal and unacceptable language in our legislation and will contribute greatly to the area of mental health. It is language which causes stigma. We have to do an important job in this House to improve how we deliver our message to ensure we insult nobody and do not contribute to stigmatisation. We have to do the best we can to honour the faithful commitment that we as Oireachtas Members give to our constituents with the honour of our office.

I acknowledge the hard work to date and wish the Minister of State a happy Christmas. I acknowledge the work and commitment of Phil, who has been a shining light since 2011, and one of the finest public servants in this House. I give her a bualadh bos.

I should also have mentioned that Department of Health officials worked very hard on this on the advanced health care directives.

Seanad amendments reported.

Agreement to the Seanad amendments is reported to the House. A message will be sent to Seanad Éireann acquainting it accordingly.