I welcome the Minister of State to the House. I have not met him before and I am delighted to meet him.
This Bill seems short and technical, but it is actually extremely important. We are dealing with people's lives and that is the long and the short of it. It is not just a housekeeping Bill. In effect, it will bring Irish legal practice into line with mainstream continental European legal practice.
Anybody who has done business on the continent of Europe or, indeed, in the United States of America will be aware that they operate a power of attorney system on a widespread basis in many commercial transactions. In fact, in continental Europe there is a highly developed notary system; there are notaries public. All kinds of documents must be stamped by notaries public on the continent of Europe. If these documents are not stamped by notaries public, then they have no value at all in continental courts, and I am talking about almost all commercial documents. I do not wish to introduce this as a red herring but in one sense there is a similarity between what notaries public do and what is intended to be done here. We are talking about a transfer of power and legal rights.
Broadly speaking, there are three classes of legal personalities recognised in the Irish legal and judicial system. There is an ordinary person, a body corporate and, of course, a body created by statute. There can be only one type of person and only one type of legislative body, that is, a body created by statute; but there can be many different types of body corporate. There are companies registered under the Companies Acts, there are partnerships which can sue and be sued in the name of the partnership, there are charities and many different types of such body. I am not sure the question of whether all these legal persons have been considered in this Bill was particularly well addressed on Second Stage initially. Is this Bill strictly limited to granting powers of attorney in respect of a natural person, as I think is the case from having read it? I ask the Minister of State to address that question in a general sense.
I referred to the way in which a lot of business is conducted in continental Europe and in the United States of America by the widespread use of the powers of attorney. In order to make a point, I want to conjure up an image, which I am sure many of us have read about or seen on television or in movie theatres, where somebody arrives in an office and says "I am going to do this." The other person says they have absolutely no right to do it, to which they reply, "Here. I have power of attorney. I am going to do it."
This Bill will bring about a revolution in the business affairs, property dealings and so on of people in Ireland in that it will lead the power of attorney concept to more widespread use than has heretofore been the case. In fact, this point was made by the Minister for Equality and Law Reform, Deputy Mervyn Taylor, in his opening remarks on Second Stage on 19 July last. He said:
It is an important social measure, the purpose of which is to allow persons to put in place arrangements for managing their affairs in the event that they should become mentally disabled.
He went on to say that the law relating to the powers of attorney at present is largely a law based on common law as opposed to statute law.
I note that colleagues on all sides of the House did not appear to have had much time on the previous occasion to read the Bill because there was some mix up as to the Order of Business that day. My colleagues found themselves, unfortunately, without the benefit of several days or weeks to study the Bill at length, but I have read the Bill.
I want to return to one of the basic problems or fears with this Bill: that fraudsters, criminals or gangsters of any variety could use or abuse the provisions of this Bill to, first, misuse the legal and property rights of a donor or, second, give powers of attorney to other people while they are under the shadow of suspicion or some kind of criminal sanction.
I notice there seems to be little reference to the Companies Acts, for example. Under the Companies Acts, if companies have been found to be trading fraudulently, the directors can be disqualified from acting as directors for certain periods of time or face a lifetime ban. Does this legislation provide people who have been disqualified from acting as directors with a mechanism whereby they can claim to have a disability and grant a power to an untainted person who could undertake property transactions on their behalf? This is a serious matter. We are all aware of the increase in crime and fraud, particularly those which are drug related, and we cannot be too careful. There should be no loophole or mechanism by which criminals could use the provisions of the Bill to evade sanctions elsewhere.
The Bill provides that the Minister may make regulations relating to any matters concerning enduring powers of attorney. The donor requires statements by a registered medical practitioner. I was surprised that statements are not required from a psychiatrist or a psychoanalyst because enduring powers of attorney refer to mental and not physical incapacity. A psychiatrist or psychoanalyst would be in a better position to assert whether a person has a mental disability. Is it possible that a person could hoodwink an innocent and perhaps not technically able medical practitioner into believing that he or she has a mental incapacity and thereby escape the restrictions imposed on them under various Acts? I ask the Minister to address that general query.
Who can act as an attorney? The Bill does not envisage that only lawyers would act as attorneys. That is good because lawyers have enough work without seeking a monopoly in the area of powers of attorney. Many people might like a close friend to act as their attorney and might not have a lawyer as a close friend.
