Amendments Nos. 40 and 41 are alternatives and may be taken together. Is that agreed? Agreed.
SECTION 14.
I move amendment No. 40:
In page 12, subsection (1), line 9, after "severally" to insert "and in the absence of having a specific appointment to that effect it shall be presumed that the attorneys are appointed jointly".
This relates to the application to have joint or several attorneys. The Law Reform Commission recommended that where the power of attorney is silent as to whether joint attorneys act jointly or severally, there should be a presumption that they should be appointed jointly. That is why I propose this amendment. The Minister has picked up on this point, which I referred to on Second Stage.
My amendment was tabled to meet Deputy Woods's suggestion on Second Stage that if the instrument to appoint a number of attorneys remained silent as to whether they were to act jointly or jointly and severally, there should be a positive statement in the Bill that they should be presumed to act jointly. There is little distinction between my amendment and that tabled by Deputy Woods, except in the drafting.
I am happy to withdraw my amendment in favour of the Minister's alternative.
Amendment, by leave, withdrawn.
I move amendment No. 41:
In page 12, subsection (1), line 9, after "severally." to insert "In default, the attorneys shall be deemed to have been appointed to act jointly.".
Amendment agreed to.
Section 14, as amended, agreed to.
NEW SECTION.
I move amendment No. 42:
In page 13, before section 15, but in Part II, to insert the following new section:
"15. Any application made to the court pursuant to the provisions of sections 8, 9, 10, 12 and 14 of this Act shall be heard in camera.”.
It is generally accepted that this legislation governs the private regulation of the property of individuals and there is no reason such private matters, in which the public have no specific interest as distinct from a general legal interest, should be heard in public. Many representations have been made that applications to the court be heard in private, as is the case with wardship and applications by children under section 117 of the Succession Act, 1965. We should accede to these representations and provide for hearings in camera. This would not prevent or inhibit the publication of judgments provided the anonymity of the parties was protected.
This case was made by the Law Society to my Department and to the committee. It is an important matter because Article 34 of the Constitution provides that justice is to be administered in public in the courts save in such special and limited cases as are prescribed by law. The justification given by the Law Society for having private hearings is to prevent the publication of details of a donor's mental health or of his or her wealth. The donor's wealth would not normally be of relevance in court proceedings under the Bill.
The issues that are more likely to arise are the suitability or otherwise of the attorney based on objections to the registration of the enduring power; whether the donor has become mentally incapable; whether fraud or undue pressure was used to induce the donor to create the power; and whether a registration should be cancelled because of the attorney's unsuitability, fraud and so on.
When the proposal was first put forward by the Law Society I did not think the case had been fully made. The possibility that the conduct of attornies could be ventilated in open court would be a deterrent to any irregularities on their part. Probate applications are also heard in open court and bear some resemblance to these kinds of applications. On balance, I feel these applications should be left for hearing in open court.
The Minister mentions that probate cases are heard in open court but the person is dead at that stage. They are not there to be concerned, upset or embarrassed. The representations have been made because a substantial number of people feel it appropriate owing to the nature of the cases. In the case of those who suffer from Alzheimer's disease, what is the point in having all their affairs trotted out in public? Once they are heard in public they may appear in the media and people may be embarrassed.
I ask the Minister to look again at this issue. I appreciate he is sympathetic to the general intent of the amendment and the arguments made. The case of probate is different, however.
There are some similarities. I will consider the matter further between now and Report Stage. I am mindful of the constitutional provision in Article 34 that justice must be administered in public save in such special and limited cases as are prescribed by law. One has to be cautious about hearing cases in camera. The matter was put by the Law Society to the committee but I am not sure if the committee made any recommendations on that point.
No. There was a general acceptance of the point as reasonable. The hope was expressed by Deputy Woods that the matter might be taken on board.
I will consider it between now and Report Stage, without giving any commitment.
Amendment, by leave, withdrawn.
I move amendment No. 43:
In page 13, between lines 10 and 11, to insert the following subsection:
"(4) Every power of attorney shall be executed by the donee of the power.".
The explanatory memorandum to the Bill states that section 15 requires the power to be signed by the donee. No such requirement is set out in section 15 but I believe it is a valid requirement. I propose this amendment to give effect to such a provision.
The Deputy's proposal is to require every ordinary power of attorney to be signed by the donee. Such a requirement was contained in the Bill when initiated in the Seanad. It was represented that this could cause difficulties for powers of attorney in commercial transactions and the requirement was deleted. Enduring powers will have to be signed by the attorney.
Amendment, by leave, withdrawn.
Section 15 agreed to.
Sections 16 and 17 agreed to.