Seanad Éireann debate -
Wednesday, 29 May 1996

Vol. 147 No. 10

Powers of Attorney Bill, 1995: [ Seanad Bill amended by Dáil ]: Report and Final Stages.

An Cathaoirleach

This is a Seanad Bill which has been amended by the Dáil in accordance with Standing Order 82. It is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purposes of the amendments made by the Dáil and this is looked upon as the report of the Dáil amendments to the Seanad. The only matter, therefore, that may be discussed is the amendments made by the Dáil.

For the convenience of Senators I have arranged for the printing and circulation of those amendments. As Members are aware, they may speak once only on this question.

Question proposed: "That the Bill be received for final consideration."

Minister for Equality and Law Reform (Mr. Taylor)

The Dáil has made a number of amendments to the Bill. I hope to show the House that the measure has been substantially improved as a result.

Perhaps the most important change has been to extend the scope of the Bill to enable attorneys appointed under an enduring power to take certain personal care decisions on behalf of the donor. Such an extension was advocated both in this House and in the Dáil and, indeed, I was urged to go further and include decisions on health care matters. However, so far as health care decisions are concerned, I remain of the opinion that it would be a mistake to amend the law on such a sensitive issue until this whole area has been thoroughly researched. After all, we want the Bill to be enacted and brought into operation at the earliest date possible.

However, I was impressed by the case for enabling donors, if they so wished, to authorise their attorneys to act on their behalf in certain specified personal care matters, and amendments were inserted on Report Stage in the Dáil to enable this to be done. The amendments specify a list of personal care decisions and require the donor to choose which ones to delegate to the attorney. The list is given in amendment No. 4 and it contains the kind of important personal care matters that arise in practice when a donor becomes mentally incapable, such as where the donor should live and applications for housing, social welfare and other benefits for the donor.

Specific safeguards are provided in relation to the exercise by an attorney of the authority to make personal care decisions. Under amendment No. 25 any personal care decisions must be taken in the donor's best interests and guidance is given as to how those interests are to be determined. For this purpose, regard must be had, for example, to the past and present wishes and feelings of the donor, so far as these are ascertainable, and to the factors which the donor would consider if he or she were able to do so. Also, other specified persons will have to be consulted, so far as that is practicable and appropriate, for their views as to what the donor's wishes and feelings might be and as to what would be in the donor's best interests. These persons are anyone named by the donor as someone to be consulted on such matters and any other person engaged in caring for the donor or interested in the donor's welfare.

The exercise by the attorney of the authority to take personal care decisions will be subject to supervision by the court in the same way as decisions in relation to business and financial affairs. Amendment No. 33 enables the court to give directions about a personal care decision which is contemplated by an attorney or which has already been put into effect. Applications to the court for such directions can be made in a summary manner by or on behalf of the donor, the attorney or any interested person.

Amendment No. 22 provides that an enduring power relating to personal care decisions will be invalidated only if the designated attorney is subsequently convicted of an offence against the person of the donor or becomes the owner of a nursing home in which the donor resides. In other words, the attorney's bankruptcy, conviction for fraud or dishonesty or disqualification as a director will not automatically invalidate the enduring power, as it would in the case of an enduring power relating to the donor's business or financial affairs. I stress "automatically" because it is always open to those notified of the execution of the power to object to its registration on grounds of unsuitability when the attorney seeks to have it registered and brought into force.

A consequential amendment, No. 28, is necessary in section 7 to enable an attorney who has applied for registration of a power to make a personal care decision which cannot reasonably be deferred until the application has been determined. That situation, which undoubtedly will occur in practice, has to be provided for because the attorney has to give five weeks' notice of intention to make the application to persons, such as relatives, who may wish to object to the registration. I believe these amendments will strengthen the position of those attorneys who have to care for those who become mentally incapable.

Several changes were made in the Dáil to ensure that the wishes of the donor to create a valid enduring power are not frustrated by non-compliance with the legislation. This House had already accepted an amendment providing for the acceptance by the Registrar of Wards of Court of an enduring power which differed in an immaterial respect from the form prescribed in the regulations to be made under section 5. Amendment No. 31 goes further and will enable the court to grant relief in an appropriate case even where there are material defects in the enduring power. Before granting relief the court must be satisfied that the donor intended the power to be effective during his or her mental incapacity, that there was no fraud or undue pressure, that the attorney is suitable and that it is desirable in the interests of justice to register it. I believe the House will agree that it is prudent to make provision for such cases, bearing in mind that the unfortunate donors will not be in a position to regularise the situation at the stage when the power is being registered, and that the safeguards being provided will ensure that their wishes are given effect in proper cases.

Another change in this context ensures that the death, mental incapacity or disqualification of one joint attorney will invalidate the enduring power only as far as that attorney is concerned unless the donor has expressly provided otherwise — this is in amendment No. 38. Again in the interests of preserving enduring powers, a donor will be able to nominate a person or persons to act as attorney in the event that the original attorney dies or does not act or cannot do so. That is being achieved by amendment No. 15. These are important additions to the Bill because, if an enduring power fails, the wards of court procedure will have to be invoked, with its attendant delays, complexity and expense.

Safeguards have also been strengthened. The regulations to be made under section 5 will now make provision for the keeping of accounts by attorneys. An attorney will have to state in the document creating the enduring power that he or she understands the duties and obligations of an attorney and the document will set out what these duties and obligations are. That is the effect of amendments Nos. 13 and 14.

In addition, the provisions disqualifying certain categories of persons from acting as attorneys have been tightened up. Amendment No. 16 gives effect to suggestions in the Dáil that the list of disqualified persons should be extended to persons convicted of certain categories of criminal offences and to those disqualified from acting as company directors. The offences specified in the amendment are those involving fraud or dishonesty and offences against the person or property of the donor. The amendment also covers, as well as disqualified company directors, other persons who may be disqualified under the Companies Act, 1990, such as company secretaries, auditors, receivers, liquidators and examiners.

Amendment No. 18 covers a situation which arises after the power has been created and in which an attorney is convicted of such an offence or is disqualified as a director. The conviction or disqualification will invalidate the power so far as the attorney is concerned or, if the power has already been registered, will cause it to cease to be in force. The amendment also makes it clear that if the donor appoints a substitute attorney, any subsequent disqualification of the original attorney will not cause the enduring power to lapse so that the substitute attorney can take the original attorney's place as envisaged by subsection (3) which is being inserted by amendment No. 15.

In the Bill as passed by the Seanad an owner of a nursing home in which the donor resides and persons residing with or employed by the owner were disqualified from acting as an attorney under an enduring power unless the attorney was a spouse, parent, child or sibling of the donor. Amendment No. 23 extends that disqualification by including in the definition of "owner" a person managing the nursing home or a director, shadow director or shareholder of a company which owns or manages the home.

With a view to simplifying court procedure, provision is being made by amendment No. 5 for all applications or references to the court in relation to enduring powers to be made in a summary manner. Amendment No. 30 makes it clear that all straightforward enduring powers will be automatically registered by the wards of court in a purely administrative procedure.

Amendment No. 21 amends section 5 (6) which invalidates an enduring power which is in favour of the donor's spouse if, subsequently, the marriage is annulled or the parties separate. Amendment No. 21 adds a further ground for invalidation, that is, that an order has been made under the Domestic Violence Act against the spouse on the application of the donor or vice versa.

Amendment No. 45 extends the categories of relatives who may be notified of an application to register an enduring power. At present these categories are limited to the donor's spouse, children, parents and siblings. The additional categories are widows or widowers of children of the donor and the donor's grandchildren, nephews and nieces.

The remaining amendments are of a drafting or technical nature but I shall be happy to give any explanations or clarifications Senators may wish on them or any other amendments.

The debates on this Bill in the Dáil and in this House were most constructive and have resulted in a much improved measure. I thank the Law Society and the Dublin Solicitors Bar Association who made many useful suggestions for the amendment of the Bill which are reflected in the amendments before the House. The Bar Association has had a particularly valuable input into the draft regulations, a revised version of which is being sent to it. I expect to have the regulations and the order bringing the legislation into operation made shortly after the Bill becomes law. I commend the amendments to the House.

Mr. Mulcahy

We are glad this legislation is being brought forward speedily. Many people become unable to deal with their personal and financial affairs through incapacitation. It is difficult to respond to all the amendments. I was not fully aware of the nature and extent of the amendment of the Bill. However, I agree with almost everything the Minister said.

Whether attorneys should be involved in the personal care decisions of the donor was not raised in the Seanad.

Dr. Henry

I raised it.

Mr. Mulcahy

I am sorry. It is an issue which should be dealt with carefully because it involves an attorney making lifestyle decisions on behalf of a donor. These are extremely personal and sensitive matters. I hope the Minister is satisfied that the ongoing policing and monitoring of these arrangements is adequately provided for in the Bill. Whenever a person is put in charge of the affairs of another, we must be extremely careful.

I expressed my concern that the power of attorney system would be misused, as it is in other countries, by what I referred to as the Al Capone syndrome. People could seek to divest themselves of their powers and, there-fore, their responsibilities so that they could avoid responsibility for their actions and live their lives through another person. I am happy that the monitoring procedures and the safeguards in the Bill are sufficient. As I said, personal care decisions are extremely sensitive.

There does not seem to be provision for the religious or spiritual life of the donor. I would have thought that would be an important personal care decision which an attorney might have had to see to on behalf of a donor. There could be other areas of an individual's personal life which could have merited attention by a donor that might not be covered by this list, and this draws attention to the fact — and I believe the Minister will agree — that it is dangerous to list things one can do.

An Cathaoirleach

We can only talk about the amendments before us.

Mr. Mulcahy

I am talking about amendment No. 4. The danger in specifying seven personal care issues means that if something else arises, the courts may feel excluded from dealing with them. Is the Minister satisfied that the courts would be in a position to consider other personal care decisions?

As regards amendment No. 30, I agree these applications should be registered with the wards of court office. I presume the purpose of that is to provide for a registration system which would be open to the public, including legal practitioners, and that is the only intended involvement of the wards of courts office in relation to this aspect of law. Perhaps the Minister will clarify that.

I agree with amendment No. 31. If the courts note that an instrument may be technically faulty, the must have power to register it if provisions (1) to (iv) apply. If this was not the case, tragic circumstances could arise and what otherwise would have been a valid instrument could not be registered and an unfortunate person could be left without an attorney. This is undesirable.

I agree with amendment No. 16, but is the Minister happy it is sufficiently wide? The amendment states:

"has not been adjudicated bankrupt or convicted of an offence involving fraud or dishonesty or an offence against the person or property of the donor...

Some people make compositions with their creditors on a personal basis and yet are not adjudicated bankrupt. If somebody was to all intents and purposes bankrupt, but not declared so, one would not want such a person involved as an attorney. Are such circumstances covered by the amendment?

The phrase "an offence involving fraud or dishonesty" is unclear. Does it mean a conviction on indictment or a summary conviction for fraud or dishonesty? Is there a time limit? If somebody was convicted of an offence up to 40 years ago, are they debarred from acting as an attorney? I ask the Minister to address this point in his reply.

Regarding amendment No. 21, will the Minister clarify the position of an attorney or proposed attorney in circumstances where the parties separate or the marriage is annulled? Does the measure cover the concept of divorce as we might know it or will it be necessary to amend the Bill if divorce legislation is introduced? If so, a broader policy question arises. Why is somebody from whom one is separated or about to be divorced, or if one's marriage was annulled, considered an inappropriate attorney? I am not arguing the point, but perhaps the Minister will explain the rationale behind it. People could have separated or divorced in amicable circumstances and a donor might be happy to have that person act as an attorney on their behalf, notwithstanding the fact that they are separated or the marriage was annulled.

As on the previous occasion when this side welcomed the legislation, we hope the Bill will be passed. Many, if not all, the amendments made by the other House are worthy. I thank the Minister for his work and I hope the Bill will become law without delay. I look forward to examining the regulations, which I am sure will be laid before the Houses of the Oireachtas. The regulations will be most pertinent because they will cover the mechanics of applications and registrations. I ask the Minister to respond to my queries.

Mr. Neville

I welcome the Bill back to the House and congratulate the Minister for listening to the improvements suggested by the Seanad and the Dáil. The amendments strengthen the Bill and make it more effective and many people will be better off as a result.

I welcome especially the main provision which enables attorneys appointed under the enduring power to take certain personal care decisions on behalf of the donor. This is very progressive. It was discussed in this House and a good case was made for it. It will allow the attorney to intervene and make decisions of a personal nature and be concerned about the donors' personal difficulties. I agree with Senator Mulcahy that this must be handled delicately but it is also important to have it present when decisions have to be made. We all have experience of cases where interventions should be made. The lifestyle and quality of life of some people would be better if there was an attorney to intervene and make decisions on their behalf.

Amendment No. 4 lists matters which can arise in practice when a donor becomes mentally incapable — where a donor should live, applications for housing, social welfare which can be important, and dealing with health boards. These decisions are made regularly but when somebody becomes mentally ill and is incapable of making these decisions it is important that they are made for them so that their quality of life is the best possible. Giving an attorney the power to make such decisions will improve the quality of life for donors.

Amendment No. 25 ensures personal care decisions must be taken in the donor's best interest and guidance is given on how these interests are to be determined. This covers any concerns we might have about misuse of the donor's position when taking personal care decisions on their behalf. The Bill extends the number of persons to be consulted, where it is practicable and appropriate, to ensure their views on what the donors wishes and feelings might be are known. Anyone named by the donor is to be consulted on such matters as well as other persons engaged with caring for the donor or interested in the donor's welfare. A broad spectrum of people who have interests in the welfare of the donor must be consulted now under the Bill. This is further protection that all decisions in the personal care area are taken in the best interests of the donor with wide consultation between those who are concerned for the donor's welfare.

Amendment No. 22 provides that the power relating to personal care decisions will be invalidated only if the designated attorney is subsequently "convicted of an offence against the person of the donor" or becomes the owner of a nursing home in which the donor resides. The enduring power is not invalidated where the attorney's bankruptcy, conviction for fraud or dishonesty or disqualification as a director occurs. When dealing with financial situations it is surely important that that would invalidate the enduring power of attorney but in personal care areas, it could be a close member of the family who, despite any difficulties they experience in life elsewhere, will continue to be caring, concerned and effective in making decisions in the personal care of the donor. I agree with the Minister that the amendments in this area will strengthen the position of attorneys who must care for those who become mentally ill.

Amendment No. 31 enables the court to grant relief in an appropriate case even where there are material defects in the enduring power, but the court must be satisfied that the donor intended the power to be effective during his or her mental incapacity, that there was no fraud or undue pressure, that the attorney is suitable and that it is desirable in the interests of justice to register it. This adds further protection for the care of the donor.

I agree with the Minister that it is prudent to make provisions for such cases when one considers that the unfortunate donor will not be able to regularise the situation at the stage when the power is being registered. Safeguards will now be provided to ensure their wishes are given effect.

Section 5 will make provision for the keeping of accounts by attorneys. I see a reason for it as long as undue pressure, work or bureaucracy, is not put on the work of a donor. Of course, when one is dealing with the financial affairs of another, it is prudent and important that one keeps proper accounts and is seen to do so.

The Bill is much more effective as a result of these amendments. The last two lines of the Minister's speech are among the most important: "I expect to have the regulations and the order bringing the legislation into operation made shortly after the Bill becomes law.". Concern was expressed in this area to ensure that it was brought in immediately. Rumours — they are no more than that — suggested it may be months or even early next year before these regulations would be made. I welcome the Minister's statement that he will bring them in immediately after the Bill is brought into law.

I commend the Minister for listening to the debates in the Dáil and the Seanad. We have a much better Bill now.

Dr. Henry

Like other Senators, I congratulate the Minister and his officials on the Bill. The amendments he accepted from the Dáil have greatly improved and strengthened it.

When the Bill first came into the House I said that I would deem "affairs" as covering medical affairs; I see that my idea was scotched and only financial and business affairs are strictly laid down. I am sorry the Minister did not include "medical and allied matters" because these can be extraordinarily important to someone nearing the end of their life. There are difficulties in that area and I hope the Department will not forget about them.

A great deal of legislation regarding gender equality in legislation was introduced in the 1970s. We had the earliest and best legislation in this regard in Europe and it is continually being quoted in other European countries. This Bill will be examined by other countries as one which thoughtfully considers the donor's position and the grave responsibilities of whoever is their power of attorney. I like the way "the best interest of the donors" is constantly stressed throughout the Bill. This, after all, is the nub of the matter. We must ensure that, whatever legislation is put in place, it is in the best interest of the donor.

It is difficult, as Senator Mulcahy said, to enumerate personal care decisions, etc., and some matters which we would like to add may be left out. For example, I would like to have seen some directives, if possible, regarding a person with the power of attorney being able to give registered medical practitioners and other health care professionals instructions regarding the future health care of the person. This, of course, can cause extreme concern for elderly people who may feel strongly, for private and religious reasons, against using heroic measures to prolong their lives.

Living wills have not proved very satisfactory in other jurisdictions, particularly in the United States. We must examine health care in the power of attorney area and the Minister and his officials should continue to keep this in mind. We should try to grapple with the problem. It is not easy but there is no need for us to wait for anyone else to solve this problem. We are as able as anybody else to deal with such matters from an ethical and moral point of view in a compassionate way. I hope this will not be forgotten just because it is not in this Bill.

I compliment the Minister on amendment No. 25 and the great stress being put on "the need to permit and encourage the donor to participate, or to improve the donor's ability to participate, as fully as possible in any decision affecting the donor". Donors are likely to be elderly people and, as we all know, sometimes people may be more alert one day than another. There is no harm coming back another day to ask someone their views, if they feel they should be moved to another nursing home, if they are satisfied with the care they are receiving, etc. These considerations are very important.

Amendment No. 25 also states that "so far as ascertainable, the past and present wishes and feelings of the donor and the factors which the donor would consider if he or she were able to do so", this should be taken into account, and "any person named by the donor as someone to be consulted on those matters" should also be stressed. All these matters are extraordinarily important and it is good to see them being stressed in this legislation. It makes it humane and compassionate. I try not to comment on whether matters are legally and totally proper.

I congratulate the Minister and his officials on this Bill and in accepting these amendments.

Ms Gallagher

These amendments improve the Bill to a greater degree than when we first discussed it. The Minister has, as always, considered what was raised in the debate. We had a good debate on the last occasion.

This is important legislation. Many people fear growing old because they think they will go senile, lose their independence or lose control over their welfare, their choice and freedom. To be able to address this in some way through the power of attorney is critical and important. This is not to be underestimated. The abuse of putting many people into old folks' homes and relations wanting them to make their wills at a time when they may not be up to it is so widespread that this measure is badly needed. This is an undramatic Bill but it will be of great benefit to a large number of people.

I welcome the amendment that provides for personal care decisions. As Senator Henry said, it is important that one is permitted to obtain the wishes of and encourage the donor to decide, in so far as that is possible, what their choice might be on such matters. It is not a matter of somebody else taking control. Instead, deciding what is best for the individual concerned can be a shared decision in many ways. That amendment is most worthwhile.

Amendment No. 31 is also important. It allows the court to rule a power of attorney to be valid even when there might be a small technicality militating against it. As in the case of wills, the clear intention of the donor should be respected. If by virtue of a technicality it might not be considered a proper document, the court should be allowed to consider and decide the matter. It is also important to have the complete registration of the powers of attorney kept in the ward of court. The form of notices given with regard to that registration to various relatives as are listed in the amendment is also important. It is a matter of providing enough checks and balances and allowing people to be notified and have their say. Above all, we must remember that the donor has the ultimate power to decide; that is critical.

I welcome the amendments which add to the effectiveness of the Bill. It is important for people to be able to make decisions about important matters such as where they might wish to live and the medical care they wish to have. This Bill gives them a say in their future in that regard and I commend it to the House. I congratulate the Minister and his officials on their valuable work on this legislation.

Mr. Howard

I welcome the opportunity to comment on these amendments. This is an important Bill. The Minister and other Members of the House have been generous in their compliments to people and organisations involved in the processing of this legislation. The Minister said that many amendments were made to the Bill in its progress through the Oireachtas and he was satisfied that it was a better Bill as a result. He extended his compliments to the Law Society, the Bar Council and other bodies.

Members have congratulated the Minister on his willingness to listen to proposals. He deserves my congratulations as well. Too often we have had the experience of dealing with Ministers whose legislation was cast in tablets of stone. The strength, value or basis of an argument made about such legislation, by Members or by interested bodies, was immaterial; they simply were not taken on board. I welcome the Minister's reaction to such arguments in the context of this legislation and, indeed, in dealing with other legislation. It is a vindication of the role of the Houses of the Oireachtas when Ministers are willing to accept well argued amendments. It enhances and justifies the role of backbencher participation in the progress of legislation through the Oireachtas. I congratulate the Minister on his willingness to listen to reasoned argument. I hope it is an indication of what we can expect from Ministers in the future.

This is important legislation. It is a response to sad human situations which must be dealt with and which require legislation. It safeguards, in a substantial way, the interests of the donor and reduces, as is only right, the possibility that exploitation may arise as, unfortunately, has happened in the past. Amendment No. 4 relates to personal care decisions and paragraph (c) refers to "whom the donor should see and not see". When I read this first I was concerned and, although I might be about to answer my own query, I would appreciate the Minister's comments; my fears might be allayed by amendment No. 25 in so far as it gives certain powers to interested parties to take action.

I am concerned that amendment No. 4 might give an attorney the power to refuse a family member access to the donor. Amendment No. 25 might safeguard against that but I would like the Minister to confirm it. Of the seven personal care decisions that are within the power of the attorney, that one, from a humanitarian point of view, most concerned me.

I can offer a measure of support for the arguments made by Senator Mulcahy and Senator Henry. Senator Henry referred to the absence of provision for decision making about medical care. Senator Mulcahy said he would like to see provision in the Bill to safeguard or protect the religious beliefs and practices of the donor. Paragraph (g) of amendment No. 4 might provide the opportunity for the Minister to take account of the concerns of both Senators in drafting the regulations. The subsection refers to "housing, social welfare and other benefits for the donor". The phrase "other benefits" could be expanded to take account of the points raised by the Senators.

The regulations will be most important and I am glad no delay is likely to ensue following the passage of this legislation. The Minister has given the House that assurance. I welcome the fact that a much strengthened and improved measure has returned to the Seanad and I am happy to support it.

Minister for Equality and Law Reform (Mr. Taylor)

On behalf of myself and the officials in my Department who worked hard during the preparation of this Bill and the amendments relating to it, I thank all Senators who contributed for their helpful and constructive remarks.

Senators Mulcahy, Howard, Neville and others referred to the insertion into the Bill of the personal care decisions provision. Comments were also made with regard to whether the list involved was too broad or narrow, and one Senator was of the opinion that one provision is somewhat untoward. The crucial factor which must be borne in mind in relation to personal care provisions is that the donor is in the driving seat. There is no obligation on a donor to include all or any of these optional provisions. For example, Senator Howard referred to the provision relating to whom a donor should see and should not see. A donor may include that provision if they wish to grant such power to their attorney. They may inform their attorney that they will see certain people and will not see others. This is at the discretion of the donor and does not follow automatically from the granting of a power of attorney.

Personal care decisions can be excluded from or included in the power of attorney if the donor wishes. The donor is in the driving seat at all times. When constructing a power of attorney and giving instructions for its preparation, the donor makes a decision in advance about the extent to which personal care decisions should be delegated to the attorney. Nothing follows automatically and matters are entirely in the hands of the donor when preparing the power of attorney.

Senator Mulcahy inquired whether the power of attorney will be dissolved as a result of the annulment or dissolution of a marriage by a law outside the State. The provision is that, unless otherwise provided, the power of attorney will be invalidated. The person who granted a power of attorney can have it continue if they wish, notwithstanding an annulment or dissolution. This matter is on a par with the rule that a will is automatically revoked when a person marries. The change in marital status is very basic and a will is revoked by a subsequent marriage on the part of the person who made that will. A power of attorney would also be dissolved in the event of annulment of a marriage or dissolution under the law of another state.

Senator Mulcahy also inquired if the Bill would require amendment in the event of the introduction of divorce in Ireland. I must inform him that such amendments would be required. We cannot deal with the possibility of dissolution taking place in Ireland until that matter is fully resolved by the courts. It could not be dealt with under the Bill and an amendment would be required to cover local divorces, if and when they come into play.

Senator Mulcahy also raised the issue of whether personal care decisions will be policed. This problem will be tackled in two ways: prevention and supervision. Under prevention, safeguards are provided at the time the enduring power is executed. The provisions relating to solicitors and doctors must be met in accordance with the Bill and the regulations. With regard to supervision, the power of attorney cannot come into force until it is registered by the courts. It must be borne in mind that relatives can object at that stage, having been notified, as they must, under provisions laid down in the Bill. Following registration, any interested party can apply to the courts to have the power cancelled or annulled if there is a basis for doing so. The function of the registrar of wards of court is to register the enduring power. This is an administrative procedure and the register will be open to public inspection.

A person convicted of fraud or dishonesty will be debarred, irrespective of when the offence occurred. This is a reasonable precaution because the donor's financial affairs will be involved. If a person's offence involved other crimes, that might be a different matter. However, one would have to exercise great caution about granting power of attorney to someone convicted of fraud or dishonesty.

Mr. Mulcahy

Is that an exception to the general rule regarding long-term previous convictions?

Mr. Taylor

It is, but this is a special situation involving fraud and dishonesty. We are discussing the handing over of one's property to another person. The nature of the power of attorney must be kept in the forefront of one's mind at all times. It is a very major step to take and means that one is handing over one's property, lock, stock and barrel, into the hands of an attorney. For all practical purposes a person's property is placed in the name of the attorney, who can write cheques under the authority of the power of attorney granted to them. They are also entitled to sell a person's property, farm or public house. The provision is very extensive and far-reaching and great care is required. The Oireachtas would be remiss if it permitted someone with a conviction for fraud and dishonesty to be granted power of attorney.

A person who has made a composition will not be debarred when the enduring power is made. However, objection could be made when the attorney applies for registration. The court could refuse such an application in an appropriate case if grounds of unsuitability existed. Much would depend on the basis on which the composition was made. It could arise under differing types of circumstances but it is open for people to object at the registration stage. If the court finds that the person is unsuitable by reason of the composition, it is open to it to refuse the registration.

Senators referred to the list of personal care decisions. Any list can be open to criticism on the grounds that it is too narrow or too broad. I have included the decisions which seem most likely to occur in practice. I sought to avoid including any which could possibly be regarded as being controversial. This is an innovative step in the law and I am of the view that it is prudent to hasten slowly in this regard. When experience has been gained in its operation over a period, we may be in a better position to judge what would be the definitive list.

I believe I have dealt with the points raised by Senators. On my behalf and that of the staff of my Department, I thank them for their kind remarks and comments.

Question put and agreed to.

Question: "That the Bill do now pass", put and agreed to.