Amendment No. 2 is consequential on amendment No. 16 and both may be discussed together. Is that agreed? Agreed.
SECTION 4.
I move amendment No. 2:
In page 4, subsection (1), line 15, after "power" to insert "and includes a person acting in pursuance of section 5(3) and complying with the provisions of this Act and regulations made thereunder".
The object of these amendments is to make it clear that a doner may appoint a person to act as attorney if, for any reason, the attorney appointed by the doner cannot act or is unwilling to do so. The original attorney may die or become unable to act or be disqualified from acting or may disclaim. In any such circumstances, the enduring power will continue in force if the doner has utilised this provision.
It is true that a similar result could be achieved under the present text of the Bill if the doner were to appoint a number of persons to act as joint and several attorneys. In that case, the death or incapacity of one of the attorneys would not affect the standing of the remainder. However, some doners might not wish to give immediate authority to more than one attorney when the power comes into force and would prefer to have power over their property and affairs exercised by one person. For example, a doner might wish that only his or her spouse should exercise control over the property and that it would be only if the spouse could not act that, say, one or more of the children could take over. There would be other examples. My intention is that doners should have as much flexibility as possible. I trust the House will agree with this and accept these amendments.
Under section 5, the interpretation of "attorney" means the donee of an enduring power. It includes a person acting pursuant to section 5(3) and complying with the provisions of this Act and regulations made thereunder. The amendment is agreed.
Amendment agreed to.
Amendment No. 3 is in the name of Deputy Woods. Amendments Nos. 29, 33 and 34 are related so we will take amendments Nos. 3, 29, 33, and 34 together by agreement.
I move amendment No. 3:
In page 4, subsection (1), line 16, to delete "High Court" and substitute "Circuit Court".
In proposing this amendment I refer the Minister to my comments on Second Stage when I asked whether there was a case for empowering the Circuit Court to deal with many, if not all, the matters governed by the Bill. The Circuit Court has a concurrent jurisdiction in family law matters. It has been granted extensive powers under section 5 of the Competition Act, 1991, dealing with an abuse of a dominant position by an undertaking. The Circuit Court has virtually exclusive jurisdiction in criminal matters, save for murder, treason and rape. It deals with landlord and tenant matters where the rateable valuation of a property is less than £200 which in practice governs the vast majority of properties. Is there any reason it should not now be given jurisdiction in respect of property the subject of a power of attorney, especially as the Government now has the power and, I understand, intends to increase the number of Circuit Court judges?
We know that the number of Circuit Court judges will be increased, probably quite shortly and this would obviously make administration of this legislation easier from the Circuit Court's point of view. I assume the Government will provide the necessary range of facilities to enable all Circuit Court judges to carry out their existing and new functions so that there would be a sizeable change in the Circuit Court in relation to the functions and the provision of facilities to carry them out. By giving the Circuit Court power there will be quicker and more immediate access to the courts for all parties. The costs incurred, which would probably come out of the estate in any event should be substantially lower, so use of the Circuit Court would be a quicker and less expensive method.
There is also a very serious matter of principle involved here. The Minister did not reply to my views in relation to this on Second Stage, will he explain why he is making this new concept so centralised? Access to the court should be readily available to people all over the country, not just in Dublin. The other amendments are consequential on amendment No. 3 and cover the administrative side of the whole operation.
The main purpose of the legislation is to use the donor's property to the donor's benefit and not to the benefit of others. The forms that have to be completed by the attorney in Great Britain acknowledge that the attorney has only a limited power to use the donor's property to the benefit of persons other than the donor. Section 6 of the Bill limits the scope of the attorney but my proposal emphasises that the attorney should have only a very limited power to deal with the property and, therefore, a limit should be prescribed on the aggregate value of gifts the attorney might make in a given year. That issue comes up again in the legislation.
The reference to the county registrar follows the proposals contained in my first amendment to grant powers to the Circuit Court. This legislation should be administered at county level. If the Minister is agreeable in principle to accepting the limitation I have suggested, it would be ridiculous if the attorney, in making a gift which some might regard as unreasonable, had to apply to the registrar of the wards of court in Dublin for the necessary approval. Accessibility is an important matter and, therefore I suggest that the county registrar is given this very limited right. Amendment No. 29 provides that the county registrar will deal with it and it is part of the whole concept of dealing with these issues at county level. Amendments Nos. 33 and 34 are similar.
We want the whole scheme to be as accessible, simple and inexpensive as possible. On this basis we felt that the Circuit Court and county registrar would be preferable so that these matters could be administered at county level. There is always the danger that they are made into major issues when the vast majority will be relatively simple, can be dealt with locally and would only arise at a higher level on appeal. That is the purpose of these amendments. I ask the Minister to consider them as reasonable proposals.
I support Deputy Woods's amendments. I will leave the legalistic side of things to the spokes-persons and the Minister. A very important fundamental principle, that of accessibility, is involved in this amendment. While I accept that there are many merits from the Minister's perspective in making the High Court central to the provisions of this Bill, there is a very strong case to be made — and Deputy Woods has made it — that the Circuit Court provides far greater accessibility for the donor to exercise his rights under the provisions of the Bill. I, therefore, earnestly encourage the Minister to consider the case so forcefully put by Deputy Woods. Geographic location and accessibility is of greater importance to the layman than to the professionals. When an ordinary person considers using this legislation, the question of the geographic location and the whole concept of the High Court is very important.
The High Court has connotations of inaccessibility and complexity, although I know that is not the Minister's intention. There is a local understanding and ease of accessibility about the Circuit Court and from all those points of view, I earnestly encourage the Minister to favourably consider the amendment put forward by Deputy Woods.
I support the case made by my colleagues. I saw this list of amendments for the first time this morning and I noticed that the next amendment, in the name of the Minister, is that applications or reference to the court should be made in a summary manner. The Minister will explain his reasons for introducing the amendment, but I suspect one purpose is to reduce costs and complexity in relation to court applications, which I welcome. In this amendment the Minister has accepted much of the logic underlying our case.
An application for registration must be made to the High Court, but, if any questions arise later, it will give rise to people returning to the High Court to determine them. As the Minister is aware, that is a very expensive procedure. It can result in the rapid dissipation of the property of the incapacitated person. Deputy Woods mentioned the extensive jurisdiction of the Circuit Court, which extends to property matters up to a considerable level. I cannot recall the actual PLV cut off point but it is very extensive. On the criminal side, the importance of the Circuit Court is best illustrated by the fact that if Mr. Nick Leeson, for example was an Irish national and engaged in activities which resulted in the dissipation of hundreds of millions of pounds, the Circuit Court would try the case. There is no logical reason to refer these matters to the High Court.
Deputies Woods and Fitzgerald mentioned the importance of localisation in these matters. For example, matters pertaining to wills and the registration of wills are dealt with in the local probate office in each Circuit Court area. There is no logic and it is unnecessarily costly to designate the High Court as the appropriate court to deal with the registration of the power of attorney. This should be handled by the offices of county registrars. The local county registrar could act under the general guidance and direction of the Circuit Court Judge to whom appropriate matters could be referred. There is no reason whatsoever to take it as far as the High Court.
What happens if somebody disagrees with a decision of the High Court in any of the questions which can be referred to it? Must somebody appeal to the Supreme Court? This is taking the matter to ludicrous lengths. Given that the Minister is making a genuine effort in amendment No. 4 to reduce costs, will he accept the logic of our case and leave this matter to be determined by the Circuit Court?
The case made by Deputies Woods, Fitzgerald and O'Dea on the amendments is one with which I sympathise in principle. I have tried in much of the legislation for which I am responsible to give as much jurisdiction as possible to the lower courts. However, in this case, the procedure set out for registration of enduring power of attorney by the registrar of wards of court is correct.
We are dealing with an entirely new jurisdiction. It would be prudent to entrust it to the High Court and its officers, who have wide experience in the related area of mental incapacity. This will ensure that a consistent approach is adopted to all applications for registration and to questions arising from them. It will also mean there will be a centralised register of all enduring powers.
Regarding costs, as Deputy O'Dea correctly pointed out, I have provided that applications to the court are to be made in a summary manner. For ordinary, straightforward applications for registration, this will be a purely administrative procedure to be carried out by the registrar of wards of court. It is important that we do not take any chances when conferring this new jurisdiction so that the Act can be relied on to operate smoothly and consistently in fairness to the donors concerned and in the interest of ensuring as far as possible the proper management of their property while they are mentally incapable.
The Minister is concerned that, in practice, the safeguards would not be sufficient at Circuit Court level and it is therefore necessary to go to the High Court. There is scope to appeal to the High Court and in normal practice, the Circuit Court, as we suggested, would be capable of dealing with the issues normally involved.
I ask the Minister to reconsider this matter for Report Stage. We feel strongly about over centralising decisions. It often happens that when an exceptional idea or concept is raised it is decided that the issue must be dealt with by the High Court. As Deputy O'Dea said, this involves increased costs all round and the type of thinking involved results in everything being ultimately centralised. There must be a better way to deal with this matter which meets the Minister's concerns but also ensures the issues can be dealt with by the Circuit Court and on a more local basis. In practice, the exceptions will be rare and a more locally based administration would be preferable. I ask the Minister to reconsider this matter for Report Stage because it involves a fundamental question regarding the way the whole system is designed.
I will clarify an aspect of the operational arrangements that will be put in place for the new enduring power of attorney procedure, which may not be fully appreciated. The overwhelming majority of applications, perhaps 95 to 97 per cent, will not go to court at all. Many people may not be clear about this point. It would be exceptional if they went to court — as unusual as it would be for a probate application to end up before a judge. They will be dealt by the office of the wards of court which already has experience of dealing with the procedure relating to wards of court, property applications and those types of matters.
The matter will be referred to the judge in a summary manner only in rare and exceptional cases where there is some difficulty or where the proofs are not in order, etc. In the normal way cases will be dealt with by the office and I expect the costs in that regard will be relatively modest, comparable to the type of charge which applies to a probate application in terms of the probate office costs rather than the duty. The office is geared to deal with those applications. Circuit Court and county registrars' offices do not handle and have no experience of handling similar applications, but the registrar of wards of court has experience in this area. It would be a very new procedure to put in place in the county registrars' offices.
Taking all factors into account, I ask the Deputies to appreciate the point that the overwhelming majority of these matters will be formal applications sent to the county registrar's office. In most cases I imagine they will be sent by post or they could be dealt with by the town agents of the solicitors involved. It is comparable to probate applications which are all dealt with in the High Court probate office. However, this is coincidental; it is a court office where they would be handled. Regarding exceptional cases, I have made provision for the simple, cheap, straightforward summary procedure under which somebody can go before a judge. It is comparable to referrals to the probate judge where difficulties arise. Those are quite exceptional and will be so in this instance also. That is the basis of the reasoning, which I ask Members to accept.
I remind members we have had considerable debate on these amendments.
I take the Minister's point about experienced officials. However, I am mainly concerned about section 12 which states that in the unusual event of a problem arising the matter has to be referred to the High Court directly. Will the Minister compromise on this and say that registration has to be in the High Court office? As the Minister said, it will generally be dealt with in the office. The matter should be referred to the Circuit Court in the first instance. There is provision for an appeal to the High Court. Will the Minister consider that before Report Stage?
I will consider it but I foresee a technical problem because the registry of wards of court is an organ of the High Court, in the same way as the Probate Office is. However, I will look at it.
There is also the question of county administration. The Minister is making a strong case for central administration whereas we are trying to build up and rely on local or country administration as far as possible, which is in accordance with current public service thinking on bringing the decisions and administration as close to local communities as possible. That is why we suggested the county registrar, from an administrative point of view.
According to the Alzheimer Society, 25,000 people suffer from Alzheimer's disease alone. We are not talking about just a few hundred people. We are talking about a huge increase in the potential numbers. That is why it would be preferable to have it administered locally. I will leave it at that until Report Stage.
In the meantime, the Minister will have a look at the point raised by Deputy O'Dea.
Amendment, by leave, withdrawn.
Amendment No. 35 is consequential on amendment No. 4 and both may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 4:
In page 4, between lines 27 and 28, to insert the following subsection:
"(2) An application or reference to the court under this Part shall be made in a summary manner.".
Provisions are made in sections 8, 9(1), 12(1) and 12(3) for applications to the court on various matters relating to an enduring power, and section 9(3) provides for a reference to the court by an attorney under a power for determination of any question as to the validity of the power. This amendment makes it clear that all these applications, and any such reference, will be made in a summary manner, so as to simplify access to the court as much as possible.
Section 12(1) already provides that an application to determine any question arising after registration should be made in such a manner. In view of the general provision now being introduced for such applications, the reference in section 12(1) to the application being made in a summary manner is no longer necessary and is being deleted by amendment No. 35.
Amendment agreed to.
I move amendment No. 5:
In page 4, subsection (2), line 30, to delete ", unless the contrary is shown,".
Section 6(4) allows an attorney under an enduring power to provide for the attorney's needs or the needs of other persons out of the donor's property if the donor might be expected to provide for those needs, and to do whatever the donor might be expected to do to meet them. Section 6(5) allows an attorney to make gifts to any charity to which the donor made, or might be expected to make, gifts.
The section we are now dealing with provides in subsection (2) that when deciding what the donor might be expected to do in such circumstances, the text will not be what the donor might be expected to do in his or her mentally incapacitated state, but rather what the donor would do if he or she had full mental capacity. The reference to "unless the contrary is shown" is, therefore, inappropriate and is being deleted by this amendment.
Amendment agreed to.
Section 4, as amended, agreed to.