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

SECTION 6.

Dr. Woods

I move amendment No. 26:

In page 7, subsection (5), line 16, after "estate" to insert "and that the aggregate value of gifts in any one year shall not, without the prior approval of the county registrar, exceed £500 or such larger sum as may be prescribed by the Minister in regulations made under this section from time to time".

This amendment relates to gifts and comes within the scope of authority under an enduring power. Section 6(5) states:

Without prejudice to subsection (4) but subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may, if specific provision to that effect is made in the instrument, dispose of the property of the donor by way of gift to the following extent but no further, that is to say, by making—

(a) gifts of a seasonal nature or at a time, or on an anniversary, of a birth or marriage, to persons (including the attorney) who are related to or connected to the donor, and

(b) gifts to any charity to which the donor made or might be expected to make gifts,

provided that the value of each such gift is not unreasonable having regard to all the circumstances and in particular the size of the donor's estate.

My amendment proposes "that the aggregate value of gifts in any one year shall not, without the prior approval of the county registrar, exceeded £500 or such larger sum as may be prescribed by the Minister in regulations made under this section from time to time". Its purpose is obvious — to ensure that the property of the donee is not given away too readily by the person who has the power of attorney.

Mr. Taylor

The effect of Deputy Woods's amendment would be to limit the total amount of gifts made out of the donor's property in any one year to £500 unless the appropriate court officer approves any excess beforehand. I appreciate the motivation behind this amendment. However, it does not pay sufficient regard to the restrictions on gifts already contained in subsection 5.

First, no such gifts may be made at all unless there is specific provision to that effect in the instrument creating the power. If there is, the amount and nature of the gifts and the persons to whom they may be made may be restricted or made subject to conditions in the instrument. Subject to any such restrictions or conditions, gifts may be made if they are of a seasonal nature or on a birthday or a marriage anniversary, but they can only be made to persons who are related to, or connected with, the donor.

Gifts may also be made to a charity but only to a charity to which the donor made or might be expected to make gifts. Over and above these conditions, there is the proviso that the value of each gift must not be unreasonable, having regard to all the circumstances, and in particular to the size of the donor's estate.

The attorney is bound to keep records of all such gifts and is subject to the jurisdiction of the court under section 12 on the application of any interested party. The court can require the accounting records to be produced and can cancel the registration of the enduring power if the attorney has abused the authority given to him or her in relation to gifts or any other matter.

It seems to me that these provisions are adequate to ensure a reasonable balance between an appropriate level of control over the attorney's activities in this area and the need to avoid undue formality. For these reasons, the amendment is not required.

Mr. O’Dea

Is the right given in the enduring power of attorney to confine gifts to relatives of the donor?

Mr. Taylor

No.

Mr. O’Dea

The donor can give the right to make gifts to anybody he or she wishes.

Mr. Taylor

That is right. They can place restrictions on them or parameters etc. in any way. The amount and category of people is entirely a matter for the donor.

Mr. O’Dea

There are various restrictions in that proviso in section 6 "provided that the value of each gift is not unreasonable having regard to all the circumstances and in particular the site of the donor's estate." That can be a matter of dispute. What is unreasonable to one attorney might not be to another. Successors in title may become worried at the extent of the gifts and the donee of the enduring power of attorney can say that it is provided for. He can say that he has been given a general power in the instrument and these gifts are not unreasonable, having regard to all the circumstances.

Will a person objecting to that have to go to the High Court? This is the case as it stands under the terms of section 12. Would it not be more reasonable for them to have that matter adjudicated on by somebody other than the High Court, such as the appropriate officer of the court? Can the Minister find some way between now and Report Stage to incorporate that element of the amendment? While I accept the Minister's point about the figures and the rights which the donor has in creating the instrument, if there is a dispute about "unreasonable having regard to all the circumstances and in particular the size of the donor's estate", it seems inappropriate to take it to a High Court judge. Maybe the appropriate court officer could be given the power to adjudicate upon that. It can always be appealed to the court itself.

Mr. Taylor

I will certainly consider it but I could foresee a difficulty in that it would be a judicial type function. I would have reservations as to whether it would be possible or appropriate.

Dr. Woods

I accept the points made by the Minister. While I realise there are many provisions in the subsection, nevertheless the Minister understands our concerns. He might have even greater concerns about it if he were on this side of the House and might be talking volubly and with great passion on this question. Perhaps he could examine this before Report Stage and see if there is any way in which it can be improved. If not, it will have to stay as it is.

Amendment, by leave, withdrawn.

Dr. Woods

I move amendment No. 27:

In page 7, between lines 16 and 17, to insert the following subsections:

"(6) Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power may exercise personal care and health decisions in relation to the donor.

(7) Without prejudice to any authority conferred on the attorney, the attorney shall at all times act in good faith.".

This is an important and far reaching amendment. I dealt with it in a series of questions on Second Stage. Since then the Minister has received representations in light of the experience in Britain and elsewhere. It seems to be utterly unreal to give the attorney power and control over the donor's property yet at the same time leave him or her powerless to make decisions regarding the welfare and care of the donor.

At present the law is silent on these matters, except for the very limited number of people who have been taken into wardship. In the light of recent developments in taking care of, and having responsibility for, the weaker members of society, is it not time to identify who is responsible? Is the donor, having made the decision to grant the power of attorney and then to appoint a specific attorney, not then to be allowed to express confidence in the attorney by permitting that person to make these important decisions regarding personal care when the donor has become incapacitated?

It is a large and important area and the Minister should accept his obligation and responsibility and agree to this amendment. It is crucial that relatives — they will be the attorneys in the vast majority of cases — who are given certain powers should be able to exercise them for the benefit of their parents and loved ones, subject of course to the overriding supervisory role of the courts which is provided for in the Bill.

We have the benefit of the experience of the operation of similar legislation for over ten years in Great Britain. It should not be necessary for us to wait for Westminster to introduce an appropriate provision. Society is changing, people are living longer and children of elderly people are largely making decisions regarding their parents in a legal limbo. It is time that we, as responsible legislators, recognised these realities and assisted not only those creating the powers but also the people on whom serious obligations are being imposed.

The second part of the amendment follows what I have already stated. It requires that the attorney act in good faith at all times. This is a recommendation of the Law Reform Commission. It is simply stated and understood and will, I trust, be accepted by the Minister. I appreciate that personal care is a current issue and requires considerable discussion. Nevertheless, when passing this legislation, we should look to the future as much as possible and not wait for others to take steps. It is quite an important issue in terms of powers of attorney because these are the type of practical problems which arise on a continuous basis for someone caring for a person with Alzheimer's Disease. I will be interested to hear the Minister's response.

Mr. Taylor

The first subsection proposed by Deputy Woods to be inserted in section 6 would enable the attorney to exercise personal care and health decisions in relation to the donor. This matter was also raised in the Seanad during the debates on this Bill. The proposed extension of the powers of an attorney to personal care and health matters involve issues of the greatest sensitivity. It would be wrong to make any amendment to the law until the matter had been researched thoroughly and there had been extensive consultations. Even if there were agreement on all sides that such an extension would be desirable, major amendments to the present text would be necessary to deal with various situations that could arise, particularly in the area of healthcare. This would take time.

The amendment also proposes to provide specifically that the attorney must always act in good faith. Such a provision is unnecessary as the enduring power is a power of attorney and, under the general law, donees of such powers are in a fiduciary relationship with regard to their donors. I understand that the position in the UK is that the Government had initially proposed a draft Bill to allow personal care and healthcare decisions to be made by attorneys. However, it was recently decided not to proceed with that legislation but to hold further consultations, probably by way of a discussion paper. I understand Deputy Woods's argument but it would be premature to amend the Bill at this time.

Dr. Woods

In the meantime people must work in a kind of twilight zone in relation to routine care. I understand that some major decisions could be extremely sensitive and difficult but many others would not be in that category. Could a way not be found to separate these decisions so that a greater reality is reflected in what we are attempting to achieve? This issue relates to the reality of people's experience and the kind of decisions they must make in the normal course of events, about which they may have a great deal of concern.

I will consider the issue further for Report Stage to see if there is any way to provide for some of the main decisions which must be made in routine care. I will attempt to discover where difficulties arise because it is being set out in regulations how certain things can be done. It could be stated that the Minister may make provision for certain things within the regulations. For example, people are faced with frequent decisions regarding whether someone should be placed in a nursing home.

Decisions taken in this area can be difficult but the donees, those with the power of attorney, cannot have their hands tied and then be expected to make routine decisions without knowing whether they have the power to do so. They must not be placed in a position where they can be challenged by another family member who rarely takes an interest in the donor. It often happens that one family member is caring for somebody on a regular basis and, consequently, they will be concerned about decisions of this kind. As soon as a decision is made, another family member who is not involved in caring for the donor will offer many ideas about what should, could or will be done or will complain about the actions of the donee.

There is a great deal of merit in recognising the decisions that people must make in practice and providing them with support. I will withdraw the amendment if the Minister will consider some limited way of dealing with practical decisions before Report Stage.

Mr. Taylor

I am not unsympathetic to the general thrust of Deputy Woods's argument. However, I do not feel it would be possible to deal with this issue before Report Stage. It is a sensitive and complex matter. As I stated earlier, the UK Government referred the matter for consultation by way of a discussion paper. If the matter is to proceed we must consider something along those lines. I am not prepared to become involved in this area without access to thorough research and conducting an extensive consultation process with interested bodies. With the best will in the world, it will not be possible to make progress on this issue before Report Stage. I have some sympathy, however, with Deputy Woods's argument. The problem will have to be addressed in the near future.

Dr. Woods

I am much more concerned with daily practicalities and the issues which arise on that basis, rather than momentous decisions of a highly sensitive nature which probably prompted the British Government to refer the matter for consultation. It will be helpful if it is possible to specify any areas in the regulations. If it transpires that this is not feasible, we will have to travel a longer route.

Amendment, by leave, withdrawn.

Section 6, as amended, agreed to.

Sections 7 and 8, inclusive, agreed to.