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.