I move amendment No. 35:
In page 9, subsection (1), line 45, to delete "in a summary manner".
SECTION 12.
Amendment agreed to.
I move amendment No. 36:
In page 11, subsection (4), between lines 7 and 8, to insert the following:
"(h) for any other good and sufficient reason."
I intend to accept Deputy Woods's amendment. The amendment involves the insertion of a further paragraph and therefore some consequential amendments become necessary at the end of each of the two previous paragraphs to accommodate the new paragraph. I trust the House will agree to those being made to the text.
Amendment agreed to.
I move amendment No. 37:
In page 11, between lines 14 and 15, to insert the following subsection:
"(7) For the purposes of this section no enduring power of attorney shall be revoked except by another enduring power of attorney duly executed in the form prescribed or by some writing declaring an intention to revoke it and executed in the manner in which an enduring power is required to be executed or by the burning, tearing or destruction of it by the donor or by some person in his presence and by his direction, with the intention of revoking it.".
Section 12(4) sets out a number of good and valid circumstances in which a court may cancel the registration of a power. The danger is that the list of seven circumstances may be regarded as all inclusive. The courts should be given a general power to cancel if, in all the circumstances of the case and having considered the evidence, it believes there is good and sufficient reason to do so.
We already accepted that amendment.
This is amendment No. 37.
Deputy Woods is talking about addition of the phrase "good and sufficient reason" which was amendment No. 36 and we have accepted it.
Deputy Woods has moved amendment No. 37. Are you accepting that as well?
I pointed out that section 12(4) sets out a number of good reasons why the court may cancel the registration and I suggest that the court should be given a general power.
That does not relate to amendment No. 37. Will I respond to amendment No. 37?
Yes, if you wish.
This amendment proposes to specify in section 12 the conditions required for any revocation of enduring power to be valid. It provides the conditions that would apply for the purposes of that section. They are taken from section 85 of the Succession Act. An amendment of this kind is not appropriate in the context of section 12. That section deals with revocation of an enduring power only where the donor revokes it after it has been registered and where the revocation does not have effect unless the court confirms it under the section.
Subsection (3) provides that the court will confirm the revocation if it is satisfied that the donor has done whatever is necessary in law to effect and express revocation of the power and had the requisite mental capacity at the time to revoke a power of attorney. Revocation by act of a donor is covered by the general law on powers of attorney and seems to be a question of fact. If the Bill was to deal with revocation it should cover the revocation of all powers of attorney but I do not see the need for such a provision. Indeed, in so far as revocation of enduring powers is concerned, it would be desirable that no undue formality should be insisted upon having regard to the wide powers exercisable over the property of mentally incapacitated persons. For these reasons I regret I cannot go along with this amendment.
The problem was that section 12(3) mentions revocation but does not set out the steps needed to effect a valid revocation. The Act should deal with this point because of the importance of the power, which is why I proposed the amendment. Given the similarity, by analogy, between a power of attorney and a will, I proposed that the method of revocation be similar to that for a will and adopted the language of the Succession Act, 1965. The Minister has given reasons he feels this is not necessary, which I accept for the present. I will withdraw the amendment and look at it again.
Amendment, by leave, withdrawn.
Section 12, as amended, agreed to.