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Select Committee on Enterprise and Economic Strategy debate -
Tuesday, 8 Apr 1997

SECTION 24.

I move amendment No. 23:

In page 26, subsection (1)(a), lines 28 and 29, to delete "through disorder or disability of mind of managing his own affairs" and substitute "by reason of a mental condition to manage and administer his own property".

The Department of Equality and Law Reform have drawn our attention to the fact that the definition of mental incapacity in paragraph (a) of subsection 24(1) differs from that in section 4(1) of the Powers of Attorney Act, 1996. Following consideration of the matter by the parliamentary draftsman, it has been decided to alter the definition in paragraph (a) to align it with that in the 1996 Act. The proposed amendment offers a wide expression of mental incapacity and is therefore recommended to the House.

Amendment agreed to.

I move amendment No. 24:

In page 26, subsection (1)(b), line 31, to delete "behalf." and substitute "behalf, whether by a court, pursuant to Part II of the Powers of Attorney Act, 1996, or otherwise.".

The amendment is being made for clarification purposes. Following discussions with the Department of Equality and Law Reform which was involved in the Powers of Attorney Act, 1996, it was decided that specific reference should be made here to that Act to make credit unions aware of their obligations. Given that it related closely to the subject matter of this section, the parliamentary draftsman has accordingly prepared the amendment for this purpose.

Amendment agreed to.

Amendments Nos. 25 and 26 are related and may be discussed together by agreement.

I move amendment No. 25:

In page 26, subsection (2), line 37, after "behalf" to insert "and who furnishes to the board such a statement as is referred to in subsection (3)".

In commenting on the Bill, the Department of Equality and Law Reform drew our attention to a recommendation in the 1995 English Law Commission report on mental incapacity which is not yet implemented in English or Irish law. The recommendation involved was designed to make a person receiving the property of the mentally incapable person aware he or she had serious obligations to properly manage that property on behalf of the mentally incapable person. The recommendation requires the recipient of the property to make a written statement to the effect that he understands it is his duty to properly apply the property he receives in the best interests of the person to whom it belongs, that he is aware he may incur civil or criminal liability if he misapplies the property and that he is not aware anyone else has been given authority to receive the whole or any part of that property, whether by an order of court, power of attorney or otherwise.

While my Department and the Department of Equality and Law Reform consider the issue involved relevant to a wide-ranging mental incapacity Bill, both Departments felt such a provision offered valuable guidance to the board of directors of a credit union in implementing this type of provision. It is a difficult and sensitive area and the parliamentary draftsman agreed to my Department's request that such a statement be required by a credit union from the person to whom it proposes to give the property of its mentally incapable member for safekeeping. Given this is a new provision in Irish law, my decision to deal with the matter here provides further evidence of my commitment to the development of a state of the art Credit Union Bill.

Amendment agreed to.

I move amendment No. 26:

In page 26, between lines 39 and 40, to insert the following subsection:

"(3) The statement mentioned in subsection (2) is one which certifies that the proposed recipient

(a) understands that it is his duty to apply the amount which is proposed to be paid in the best interests of the person to whom it belongs; and

(b) is aware that he may incur civil or criminal liability if he misapplies the whole or any part of that amount; and

(c) is not aware that any other person has authority to receive the whole or any part of that amount, whether by virtue of an order of a court, a power of attorney or otherwise.".

Amendment agreed to.
Section 24, as amended, agreed to.
Sections 25 and 26 agreed to.
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