Select Committee on Legislation and Security debate -
Wednesday, 13 Mar 1996

SECTION 5.

Mr. Taylor

I move amendment No. 6:

In page 4, subsection (1), line 34, after "donor" where it firstly occurs to insert "to the effect".

This amendment is intended to cover a situation where a statement by the donor that he or she intends the enduring power to be effective during any mental incapacity of the donor may not follow the exact words in subsection (1) and, thus, give rise to doubts about the validity of a power. In practice, that can easily happen. Under the amendment, the statement by the donor need only be to the effect that he or she intends the enduring power to be effective in those circumstances. This element of flexibility is necessary to avoid unnecessary difficulties when it comes to registering the enduring power.

Amendment agreed to.

Mr. Taylor

I move amendment No. 7:

In page 4, subsection (1), line 35, to delete "notwithstanding any supervening" and substitute "during any subsequent".

This is purely a technical amendment.

Amendment agreed to.

Chairman

Amendments Nos. 8 to 10, inclusive are related and may be discussed together by agreement. Is that agreed? Agreed.

Dr. Woods

I move amendment No. 8:

In page 4, subsection (2), line 38, to delete "may" and substitute "shall".

Section 5(2) states:

The Minister may make provision by regulations in relation to any or all of the following matters concerning enduring powers of attorney—

(a) their form,

(b) their execution,

(c) ensuring that any document purporting to create an enduring power incorporates adequate information...

The Bill only states that the Minister "may" make provisions by regulations. It is important that the Minister "shall" make provisions by regulations. It must be mandatory for the Minister to make provisions governing the form and structure of powers of attorney.

My preference, as the Minister will remember, was for these matters to be included, or at least a substantial proportion of them, within the legislation so that the format could be set out in a schedule, which would not be very difficult to do. The rules governing wills are not set out in regulations but in the Succession Act, 1965. If the Minister wants to retain the regulating power, as stated in his reply on Second Stage, we need to know that the matters set out in section 5(2) of the Bill will all be included. These are not optional matters but matters about which the Minister will have to make regulations. I could see the Minister having the power to make other regulations or to cover other matters. However, these matters, which are termed in the Bill "characteristics of enduring power", must be covered. I see no reason, therefore, for the Minister not accepting this amendment.

Amendment No. 9 follows amendment No. 8. As well as making it mandatory to make provision, all the matters in the subsection should be covered. The Law Reform Commission in its very helpful report, LRC 31/1989, on which this legislation is based, set out on pages 23 to 26 a form of power of enduring attorney and a guide as to how it should be completed. The Minister will be aware of that precedent. While it is taken from existing British legislation, could he not have indicated to the House on Second Stage, or now on Committee Stage, what precise proposals he has in mind in relation to the form?

We would prefer if the Minister would set out the form in the Bill and if he then had power to make further amendments by regulation. We are concerned that the form should be simple, clear and easily used. I cannot see why the Minister will not do what was done in the Succession Act, 1965 and set out the form in the Bill.

Mr. L. Fitzgerald

The Minister has set out the characteristics of the enduring power clearly in the legislation but he has not decided, in view of the use of the word "may", whether he will or will not make the regulations. We often find the term "may" used in Bills rather than "shall". Almost invariably Members are concerned that the regulations should be clearly covered and that the word "shall" should be substituted for "may". Am I correct in saying that the Minister has not made up his mind that he will definitely introduce regulations? The Minister is smiling so perhaps that is a misinterpretation. I am baffled about the Minister's motivation in using the word "may". I support what Deputy Woods has said. I also support the view that the form should be set out in the legislation. I cannot understand why that is not possible. Surely it would make the Minister's intent much clearer.

Mr. O’Dea

I do not wish to anticipate the Minister but I suspect he will say that he intends to make these regulations. The matters to be dealt with by way of regulation are central to the Bill. We are talking about the format of the enduring powers of attorney and their method of execution. Questions about the donor having read the information and the involvement of doctors, solicitors and so forth are central to the enduring power of attorney we are creating. I cannot see this Bill being brought into effect without the regulations being in place. They run side by side. It would be meaningless to bring the Bill into force by a certain date and to say that the regulations will be implemented at an indeterminate time in the future.

I hope the Minister does not intend to have a gap between the implementation of this Bill and the production of the regulations. If that occurred we would have the ludicrous situation of every solicitor in the country having a different concept of enduring power of attorney, what he has to do and the precise format. Everybody would naturally be worried that if there was a slight error which did not properly convey the intent in the documentation to create an enduring power of attorney they would have to go to the High Court under section 12. The regulations are central and must accompany the Bill. Will the Minister confirm that? If the Minister intends to introduce regulations, why state that he "may" rather than "shall" introduce them? Why not say what is meant?

I am dubious about this procedure. As Deputy Woods said, the formality of wills is set out clearly in the relevant legislation, the Wills Act, 1837 and the Succession Act, 1965. They provide that people must sign in the presence of the testator who must also sign in their presence. This and other requirements are set out clearly by statute and that is how they should be set out. Are we legislating by regulation? That would be most undemocratic. Surely in matters that are central to the creation of an enduring power of attorney, such as the involvement of solicitors, doctors and so forth, Parliament should have an opportunity to debate them and to ensure that they are carried out properly.

The 19th century Irish parliamentarian and poet, T.M. Kettle, said that he would trust the Irish parliamentary draftsman to draft the ten commandments and I agree with him. The Minister has excellent draftsmen. I could not praise them highly enough and I worked with them when I was in office. Nevertheless, they are not so good that something they produce cannot be improved. Legislation is almost invariably improved in some measure as a result of discussion on Committee Stage, which is what this committee is about. If the Minister wishes to go another road he might as well abolish Committee Stage and abolish Parliament.

These matters cannot be dealt with in the same way as one would deal with a technical matter that is not central to the Bill. These matters are central to the Bill and we should have the opportunity to debate them. They should appear in the Bill and I want to know why they do not. Is this the start of a new process of legislating by regulation so that anything that is awkward, contentious or might take too much time can be dealt with by the Minister alone by way of regulation without giving Parliament the opportunity to debate it?

While I have every confidence in the parliamentary draftsmen, matters that are so central should be set out in the Bill in the same way as the formalities for wills are set out in legislation. These matters should be included in the Bill and we should have the opportunity to debate them and ensure they are right.

Mr. Taylor

I must disagree with the Deputies in so far as amendment No. 8 is concerned, although I will try to be more forthcoming on amendments Nos. 9 and 10. I am advised that "may" is correct in this context. The Minister is being given a power and a duty to make regulations without which, as Deputy O'Dea rightly pointed out, this part of the Bill cannot function. This is a somewhat esoteric area but I will see to it that the regulations are made shortly after the Bill becomes law. That is what the House and people outside the House with elderly relatives wish to see. The preparation of the regulations is already under way.

With regard to amendments Nos. 9 and 10, section 5 (2) allows the Minister to make provisions by regulation in relation to all or any of certain matters concerning enduring powers of attorney and one of these matters is the inclusion in the document creating the enduring power of any or all of certain statements. The flexibility provided by this more or less standard formula in relation to the matters to be covered in the regulations was designed to enable the Minister not to regulate one or more of these matters at a particular time or to cease to regulate matters that have already been regulated.

I have considered again these various matters and I am satisfied that provision for all of them should be made in the regulations. The same applies to the statements to be included in the document. Accordingly, amendments Nos. 9 and 10 are acceptable.

Dr. Woods

I will withdraw the amendment. One likes to see as much as one can in the Bill and there is a tendency to have things dealt with by regulations.

Mr. O’Dea

The Minister said he had a power as well as a duty to introduce the regulations. I can see where the power is provided for but I cannot see where the duty is provided for unless it is an implied duty. Will we see the regulations? Will this committee have an opportunity to debate the regulations, in view of the fact that they are central to the Bill? Will the Minister consider, between now and Report Stage, setting out the format of the enduring power of attorney and will he introduce it by way of amendment to the Bill? We have a format for a general power of attorney in the Schedule to the Bill yet we do not have the format for the enduring power of attorney, which is what the Bill is about. If the work on the regulations has started will the Minister consider producing that format for inclusion in the Bill on Report Stage?

Dr. Woods

All the regulations, under a later section in the Bill, must be laid before the House. Section 24 provides that every order and regulation made under this Bill shall be laid before each House of the Oireachtas as soon as may be after it is made.

Section 24 states that:

Every order and regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next subsequent twenty-one days...

It is up to the Oireachtas see if it agrees with them. They do not have to be agreed at that stage.

Mr. Taylor

It is a fairly standard negative——

Dr. Woods

There are two standard procedures. One is that within 21 days the Oireachtas can pass the orders or regulations if no objections to them are raised. The second is that Members who wish to raise objections have 21 days in which to do so and this is the procedure which applies here. This provides the Oireachtas with control and meets in part the point raised by Deputy O'Dea.

Mr. O’Dea

Does it generate a debate on the matter?

Dr. Woods

Not unless Members want a debate. In that case they would have to put down motions.

Chairman

We will deal with this when we come to that paragraph. Perhaps the Minister would like to comment on the earlier point made by Deputy O'Dea.

Mr. Taylor

The matters envisaged by the regulations are of a different calibre from the substance of the Bill. They are appropriate to regulations because they are matters of formality and they might have to be varied or altered from time to time. If we were to include in legislation all matters contained in regulations, we would have bulky and lengthy legislation. These are formal matters setting out the form and contents of the document, arrangements for its execution, the format for dealing with cases where more than one attorney is appointed and so on. I would not be prepared to have these items included in the Bill. It would be wrong and inappropriate and would mean that each time a variation had to be made, an amending Bill, rather than amending regulations, would be necessary.

Mr. O’Dea

I agree to differ from the Minister. However, I would like to see my last point about the format of the enduring power of attorney included in the Bill. Will the Minister consider drafting an amendment to deal with this for Report Stage?

Mr. Taylor

I cannot give any commitment that this would be ready. All I can say is that it is my expectation and intention to have the regulations put in place quickly after the Bill is passed. Work in the Department on their preparation is already under way. I cannot put it any stronger than this much as I would like to be helpful.

Amendment, by leave, withdrawn.

Dr. Woods

I move amendment No. 9:

In page 4, subsection (2), line 39, to delete "any or".

Amendment agreed to.

Dr. Woods

I move amendment No. 10:

In page 5, subsection (2) (d), line 4, to delete "any or".

Amendment agreed to.

Mr. Taylor

I move amendment No. 11:

In page 5, subsection (2) (d) (ii), line 11, to delete "obtaining any necessary reports" and substitute "making any necessary enquiries".

This is purely a drafting amendment.

Amendment agreed to.

Chairman

Amendment No. 13 is related to amendment No. 12, which is in the name of the Minister. Amendment No. 14 is an alternative to amendment No. 12. Therefore, amendments Nos. 12, 13 and 14 may be discussed together.

Mr. Taylor

I move amendment No. 12:

In page 5, subsection (2) (d) (iv), line 23, after "understands" to insert "the duties and obligations of an attorney and".

Amendment No. 12 provides for a statement to be made by each attorney in the document creating the enduring power that her or she understands the duties and obligations of an attorney. Amendment No. 13 will enable appropriate provisions to be made in the regulations for the keeping of accounts by the attorney and for the remuneration, if any, to be paid to the attorney. These amendments are being moved in response to representations from the Law Society.

Deputy Woods's amendment is also concerned with providing in the document creating the enduring power statements setting out attorneys' duties, including the obligation to keep accounts. Whereas subsection 2 (d) (c) already provides for ensuring that this document incorporates adequate information as to the effect of accepting an enduring power, under this provision the document will have to spell out the duties and obligations of attorneys. This reasonably meets the point made by the Deputy in his amendment.

Dr. Woods

My concern is that while the Bill confers obligations on an attorney, it does not oblige him specifically to keep accounts. I believe it should. I am not asking for detailed accounts but for a brief statement relating to income and expenditure. At present the committee of a ward of a court is obliged to maintain accounts and report to the Registrar of Wards of Court. In many ways this Bill proposes to privatise the law. This would simplify the law and enable it to be carried out on a more private basis. However, we should insist on basic accounts. The Minister has proposed a similar amendment which deals only with the maintenance of accounts. My amendment requires that the document should include a statement setting out the duties of the donee and not just an obligation to maintain accounts; I think this is necessary. While I accept the Minister has gone part of the way, my amendment proposes the inclusion in the document of a statement setting out the duties of a donee, including the obligation to maintain accounts.

Mr. O’Dea

I welcome the Minister's amendments as they will improve the situation considerably but our amendment goes much further. As I understand it, the Minister's amendment will provide for a situation where, if accounts are kept, this will have to be done in a certain way; regulations will state the format in which they must be kept. If Deputy Woods's amendment is accepted, there will be a duty to keep accounts in the first place and this is necessary.

His amendment goes further than the issue of accounts and sets out the duties of the donee, including the obligation to maintain accounts. At present, if somebody becomes mentally incapacitated, the matter is dealt with by the Wards of Court Office. This office appoints a committee, usually headed by a close relative, to look after the affairs of the person at local level. This committee is closely regulated and supervised by the Wards of Court Office, which insists on a number of things, including keeping accounts. I am dealing with one of these cases at present where there is a strict insistence on the keeping and maintenance of accounts and their production every year. If there is anything wrong with them, queries are raised and must be dealt with.

I agree with the Minister that we should move away from a public control system. There is an element of privatisation here.

Mr. Taylor

I would not be party to a privatisation.

Dr. Woods

Indirectly the Minister is.

Mr. O’Dea

Instead of obliging people to undertake this expensive, cumbersome and complex procedure which operates in the Wards of Courts Office, we are allowing people to do it themselves but there is very little supervision. There is provision in the legislation that if anything goes wrong, people can pay fees to the High Court for it to adjudicate on the matter. I can see many situations where there will be no reference to the High Court and people will do what they like. They will not spend money because of the risk of losing their cases in the High Court and there will be nobody to represent the incapacitated person, who is totally and exclusively dependent on the goodwill of the donee of the enduring power of attorney.

He or she should at least be obliged to maintain accounts. There should be a general statement about their duties and if they must act in a fiduciary capacity, they should realise that is a separate point. We are moving from a situation with tight regulations to one where somebody is free to do as he wishes unless someone wants to take the chance of dragging him or her into the High Court. The obligation to maintain a set of accounts is the least we should be entitled to expect in light of this fundamental change. Unlike the Minister and his party, I have no ideological hang ups about privatisation. It can be good in certain situations as can public enterprise. We are a pragmatic party. We are moving away as regards incapacitated people from the unnecessarily complex wards of court procedure which should be simplified. The least we should do is oblige the donee of an enduring power of attorney to keep rudimentary accounts.

Mr. Taylor

That is being done in amendment No. 13. We are making provisions for regulations on the keeping of accounts by the attorney in relation to the management and disposal of the donor's property. That is being specifically provided for. Deputy Woods's amendment seeks to set out the duties of the donee in the regulations. That is entirely inappropriate. What are the duties of the donee? The duties of the donee are set out in the document appointing the donee, the power being given by the owner of the property. His duty is to comply with the mandate given to him under the power executed by the donor. It would be inappropriate and unnecessary to reiterate that in regulations.

Deputy O'Dea was right when he said that the powers vested in the donee are substantial. It follows from that that a person considering granting an enduring power of attorney should exercise great care and caution when deciding whom to appoint as their attorney. There are provisions in the Bill about medical and legal advice being written into the procedure. Great care is required when appointing an attorney in the same way as great care is required when appointing an executor. Such designation is not appropriate to this kind of position.

Dr. Woods

That is in a general sense.

Mr. Taylor

Deputy O'Dea will agree with the probate executorship situation. The attorney is not put in place by an outside public or private agency but by the owner of the property. That is the person who chooses their attorney, in the same way as a testator chooses their executor. Both the attorney and the executor are in extremely powerful positions because the property is in their name and they can deal with it. We recognise that in this Bill and that is why we have gone to such lengths to provide safeguards and checks and balances to ensure that those functions freely deputed by the donor will be carried out in a proper manner. We must ensure that the maximum checks and balances are provided.

Mr. O’Dea

The Minister said that great care must be taken when giving the enduring power of attorney. One could also say that people must take great care when choosing a marriage partner, but it does not always work out. The Minister also mentioned executorships. The situation is not analogous because when someone is appointed an executor, his role comes into play when the person dies and the will goes to probate. If the executor is misbehaving or not doing his job properly, people with a vested interest will ensure that he carries out his duties. That situation does not apply here. A person is being given the power to manage the property of an incapacitated person and, if he fails to do so, relatives, the person's successors in title or someone who will benefit from his or her death will——

Mr. Taylor

That is probate.

Mr. O’Dea

No. A person can only make a will if they are giving property to a specific person. If the executor is not doing his job properly, that specific person will try to rectify that. However, that does not apply here.

Mr. Taylor

The functions of an executor can go on for years.

Mr. O’Dea

I realise that, but where there is an executor there is a beneficiary.

Mr. Taylor

This is the same thing.

Mr. O’Dea

Who is the beneficiary?

Mr. Taylor

The next of kin who would get the property.

Mr. O’Dea

There will not always be a next of kin.

Mr. Taylor

There may not always be a next of kin in the probate situation either. The person appointing the attorney must take these factors into account before they make the appointment.

Mr. O’Dea

The person creating the power of attorney cannot anticipate everything that will happen in the future. We cannot anticipate what will happen tomorrow. The Minister draws an analogy with wills when it suits him, yet he also departs from the probate situation when it suits him. The formalities for making wills are set out in the legislation governing wills but the formalities for this situation are not set out in this Bill. The Minister says it is different, yet when it suits him he says it is analogous. I envisage a situation where a person, if he is going senile, grants the enduring power of attorney over his property for the rest of his life to an individual, if there is no next of kin or the next of kin does not want to get involved. The donee can do what he wants and no one will take him to task because they do not want to go to the High Court. I am not happy that there is adequate supervision in this regard. We are moving from total regulation and bureaucratic control to complete freedom of choice. There are not sufficient supervisory powers in this Bill and this will cause great hardship and suffering. It is not analogous to an executorship.

Mr. Taylor

The matter is well provided for in the Bill. The regulations will ensure that any document creating an enduring power incorporates adequate information as to the effect of creating or accepting the power. Any person can bring an application to the court if they feel that assets are not being administered properly. I am happy with the present format.

Chairman

There is a gulf between the Government and the Opposition on this matter.

Dr. Woods

I appreciate what the Minister has done in this regard. However, my amendment seeks to include an obligation to maintain accounts. We will support the Minister's amendments and withdraw that tabled in my name. I thank him for taking the points raised on Second Stage into consideration.

Amendment agreed to.

Mr. Taylor

I move amendment No. 13:

In page 5, subsection (2), between lines 24 and 25, to insert the following:

"(e) the keeping of accounts by the attorney in relation to the management and disposal of the donor's property,

(f) the remuneration, if any, to be paid to the attorney,".

Amendment agreed to.

Amendment No. 14. not moved.

Dr. Woods

I move amendment No. 15:

In page 5, subsection (2)(e), line 26, after "attorney" to insert "in the presence of two independent witnesses".

This brings home the point which we made earlier that this is really the bones of the operation of the power of attorney. It will be provided for in regulations and, consequently, we are concerned to see that the provision is adequate in every respect. Section 5(2)(e) refers to "the attestation of the signatures of the donor and the attorney" and my party suggests this should be done "in the presence of two independent witness". We ask the Minister to follow a well tried procedure, one which applies with regard to witnessing wills, for example, where all valid wills must be witnessed by two independent witnesses who cannot be beneficiaries.

Witnesses to a power of attorney should not be likely recipients of any payment made by the attorney or, indeed, any intended attorney. We ask the Minister to include this provision as a requirement and safeguard. We know that between 90 and 95 per cent of instances where people grant a power of attorney would be routine and should be executed in a simple manner without complications or other difficulties. Their routine nature in practice calls for a degree of care and certification to avoid a situation where a person can use undue influence. For this reason we propose that a similar arrangement should apply to that which applies in making wills. It cannot be difficult to have two independent witnesses present who would not be beneficiaries. It is important to ensure they are independent of the execution of the power of attorney also.

Mr. O’Dea

Again, the Minister has consistently used the analogy with wills. If the signature to a will must be attested by two independent witnesses who are not beneficiaries, I cannot see any logical reason for this not being done in the case of an enduring power of attorney. I suspect the Minister will say that the method of attestation will be dealt with in the regulations but as the Bill states that the involvement of a solicitor and a medical practitioner must be part of the regulations, it should state equally that the presence of two independent non-benefiting witnesses to the creation of the power should be part of the regulations. The Minister should provide for this provision to be included in the regulations.

I am worried slightly about the use of the word "independent". I think what Deputy Woods is trying to achieve is that the two indepentent witnesses do not benefit. The word "independent" might not be sufficient to cover the fact that the witnesses should not be beneficiaries or recipients of any gifts or donations from the estate.

Mr. Taylor

Deputy Woods proposes that the regulations should provide that the donor signature and that of the attorney or each attorney should be witnesses by two independent witnesses. I understand the case being made by him but I am not convinced it is necessary to insist on having two witnesses to those signatures. As Deputy O'Dea rightly points out I see some difficulty in defining which witnesses would be "independent". One witness should be sufficient and that is what I propose to provide for in the regulations.

The regulations will require a statement by a solicitor to be included in the document to the effect that having made any necessary inquires, he or she has no reason to believe the document is being executed by the donor as a result of fraud or undue pressure or influence. There will also be statements by a doctor that the donor had the mental capacity to understand the effect of creating the power, and by the attorney that he or she understands the duties and obligations involved. The operation will, thus, be a great deal more formal than the execution of a will and one witness to each signature should be sufficient. Of course, an attorney will not be permitted to witness the donor signature but, subject to that, it can be left to the solicitor involved to see to it that there is nothing untoward in the execution of the enduring power by the attorney or the donor. For these reasons I regret I am not disposed to accept this particular amendment.

Amendment, by leave, withdrawn.

Mr. Taylor

I move amendment No. 16:

In page 5, between lines 33 and 34, to insert the following subsection:

"(3) The donor of an enduring power may in the document creating the power appoint one or more specified persons, being persons who are not disqualified, to act as attorney if an attorney appointed by the power disclaims or dies or is unable to act or is disqualified from acting as attorney.".

Amendment agreed to.

Chairman

Amendment No. 17 is in the name of the Minister. Amendment No. 18 is an alternative. Therefore, amendments Nos. 17 and 18 may be discussed together by agreement.

Mr. Taylor

I move amendment No. 17:

In page 5, subsection (3)(a)(i), lines 36 and 37, to delete "is not a bankrupt" and substitute "has not been adjudicated bankrupt or convicted of an offence involving fraud or dishonesty or is not—

(I) a person in respect of whom a declaration has been made under section 150 of the Companies Act, 1990, or

(II) a person who is or was subject or deemed subject to a disqualification order by virtue of Part VII of that Act".

Section 5(3)(a)(i) disqualifies a person from acting as attorney under an enduring power if he or she has not attained 18 years of age or is a bankrupt. Amendment No. 17 gives effect to a suggestion by Deputy Woods and Deputy O'Dea on Second Stage 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 the amendment also covers, in addition to disqualified company directors, other persons who may be disqualified under the Companies Act, 1990, such as company secretaries, auditors, receivers, liquidators and examiners.

Deputy Wood's amendment differs from my amendment in two respects. First, it disqualifies from acting as attorney a person who is of unsound mind at the time of execution of the power. I am not sure that as a practical matter it is necessary to make specific provision for such an eventuality but it is difficult to see how any donor would appoint such a person as attorney or that the solicitor concerned would allow it to happen.

The other change proposed by the Deputy would disqualify persons convicted on indictment of an offence whereas my amendment relates to convictions for offences involving fraud or dishonesty. I confined my amendments to those offences because they are the most relevant to carrying out management of the donor's affairs and because I believe a donor would not likely appoint as attorney a person who had convictions for other serious offences. I also consider that convictions for offences of fraud or dishonesty should not be confined to convictions on indictment.

For these reasons I prefer my amendment but I would like to hear the Deputy's contribution.

Dr. Woods

Here, again, the Minister has gone a long way to meet the points we raised on Second Stage. The difference is that my amendment covers all persons convicted of a criminal offence and not just one involving fraud or dishonesty, which is a point I raised on Second Stage. For instance, a person could be a drug dealer or involved in some other sort of criminal activity and my amendment was intended to cover all such persons.

In respect of company directors, my amendment proposed that not only should a person who had been disqualified under section 160 of the Companies Act, 1990, be barred from acting but also one in respect of whom a restriction for five years has also been made. While these are other aspects of the proposal I made in the first instance, I accept the Minister has gone a long way to meet us. The Bill has been considerably improved by his amendment which we will support. I will withdraw mine.

Mr. O’Dea

I thank the Minister for going so far. On this occasion I am ad idem with the Minister on one thing at least and, unfortunately, I must differ from my colleague Deputy Woods on one point. I have a fairly good knowledge of company law and I would not exclude those who are restricted. The grounds on which people can be restricted are quite narrow. Perhaps the Minister might look again at banning those convicted for fraud and dishonesty. While our amendment goes too far, the Minister will be aware that there is a huge number of things on which one can be convicted on indictment. That one commits an indictable offence does not necessarily mean it was a serious offence. Many minor offences can be tried on indictment. I would like the Minister to look at the possibility of including a few other categories of particularly heinous offences on Report Stage. Deputy Woods mentioned drug dealing, aggravated assault, murder and rape, etc. People convicted of such offences are not suitable to be given enduring powers of attorney. An indictable offence is too wide and I ask the Minister to look at categories of offences which are broader than fraud or dishonesty.

Mr. Taylor

I will look at that.

Amendment agreed to.

Dr. Woods

I move amendment No. 18:

In page 5, subsection (3)(a)(i), line 37, after "bankrupt" to insert ",or of unsound mind, or a person convicted on indictment of a criminal offence, or a person in respect of whom an order has been made under section 150 of the Companies Act, 1990, or has been disqualified under section 160 of the Companies Act, 1990".

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 20 and 25 are related to amendment No. 19 and may be discussed together. Is that agreed? Agreed.

Dr. Woods

I move amendment No. 19:

In page 5, subsection (3) (b), line 41, after "owner" to insert "or the servant or agent of an owner".

I agree that the owner of a nursing home should not be entitled to act as an attorney, but neither should any person who works for or advises the owner of the home in which the donor resides. Amendment No. 19 seeks to insert "the servant or agent of an owner". I am trying to keep those with an influence over a person in a nursing home at bay by ensuring residents have an independent power of attorney.

Mr. Taylor

Amendment No. 25 proposes that the owner of a nursing home should include a shareholder in a company which owns a nursing home in which the donor resides. It was prompted by Deputy O'Dea who pointed out on Second Stage that disqualification of an owner of a nursing home acting as an attorney under an enduring power could be circumvented if the home was owned by a limited company in which the attorney was the majority shareholder. Since tabling the amendment, I notice the Law Society of Ireland representatives at their recent meeting with the committee suggested extending the disqualification to directors or shareholders in a company managing a nursing home. That is a useful suggestion which I propose to implement on Report Stage. Amendment No. 20 covers a point made by Deputy O'Dea. It makes clear that if a person is appointed attorney and subsequently becomes the owner or employee of a nursing home in which the donor resides, the enduring power will be invalidated or, if it is being registered, will cease to be in force.

Dr. Woods

The word "employee" covers my proposal. The Minister has gone some way to meet the point we made.

Amendment, by leave, withdrawn.

Mr. Taylor

I move amendment No. 20:

In page 6, subsection (5), line 4, after "dissolution" to insert "or on the attorney becoming a person referred to in subsection (3)(b)".

Amendment agreed to.

Chairman

Amendments Nos. 21 and 22 are consequential on amendment No. 23 and amendment No. 24 is related and all may be discussed together. Is that agreed? Agreed.

Mr. Taylor

I move amendment No. 21:

In page 6, subsection (6)(b), line 16, to delete "or".

Amendments Nos. 22 and 23 implement a suggestion made by the Law Society of Ireland for invalidating an enduring power if subsequently an order is made against the attorney under the Domestic Violence Act, 1996, on the application of the donor or vice versa. These are protection orders, interim or final barring orders and safety orders.

Dr. Woods

I recognise that the Minister has listened to points made on Second Stage. Amendment No. 24 seeks to include a barring, a protection or a safety order made against a spouse or any other order under the Domestic Violence Act, 1996, and that "the court shall for any good and sufficient reason so decide". From a practical view point, no great distinction will be made between people whose marriages have been annulled, who have obtained a judicial separation or who have entered into a separation agreement and cases where barring, protection or safety orders have been made in the interests of a spouse who, under this legislation, is given the power of attorney.

The Minister is ensuring that the beneficiaries of the provisions of section 5(6) will be middle class, while the poor who have not utilised or benefited from annulment in the past will rely on the District Court and the barring order mechanism in family disputes. Spouses against whom such orders have been made will not be entitled to act as an attorney. By including a protection order and interim barring or safety order, the Minister has gone some way to meet the requirements.

Amendment agreed to.

Mr. Taylor

I move amendment No. 22:

In page 6, subsection (6)(c), line 18, to delete "spouses." and substitute "spouses, or".

Amendment agreed to.

Mr. Taylor

I move amendment No. 23:

In page 6, subsection (6), between lines 18 and 19, to insert the following:

"(d) a protection order, interim barring order, barring order or safety order is made against the attorney on the application of the donor, or vice versa.".

Amendment agreed to.

Amendment No. 24 not moved.

Mr. Taylor

I move amendment No. 25:

In page 6, between lines 25 and 26, to insert the following subsection:

"(9) In subsection (3)(b) ‘owner' includes a shareholder in a company which owns a nursing home.".

Amendment agreed to.

Section 5, as amended, agreed to.