I move amendment No. 30:
In page 8, lines 18 to 20, to delete subsection (1) and substitute the following:
"(1) On an application for registration being made in compliance with section 9 the Registrar of Wards of Court shall, unless subsection (2) applies, register the instrument to which the application relates.".
This is a technical amendment.
Amendments Nos. 31 and 32 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 31:
In page 9, lines 5 to 8, to delete subsection (5) and substitute the following:
"(5) The county registrar and, on appeal, the court shall have the power to register a power of attorney which does not comply with the provisions as to registration of this section and section 9 if, in the opinion of the county registrar or the court, the reasons for non-compliance or of a non-material nature.".
I proposed earlier that jurisdiction in these matters be given to the Circuit Court. It is a logical consequence of giving the Circuit Court jurisdiction that administrative rights must be given to the county registrar. I have already explained my reasons for that and a later amendment dealing with gifts. It follows therefore under this section that pending the making of other provisions an application under subsection (1) should be addressed to the county registrar if the Circuit Court is not in a position to deal with it.
Deputy Woods proposes that an enduring power which does not comply with the provisions of registration under sections 9 and 10 should be registered if the reasons for non-compliance are of a non-material nature. This provision would be in substitution for the existing subsection (5). Subsection (5) covers the situation being addressed by the Deputy. It is a general provision validating any enduring power which differs from the prescribed form only in a material respect in form or mode of expression.
The Deputy's amendment refers to non-material compliance with the provisions for registration in sections 9 and 10 but such compliance and non-compliance does not affect the validity of the enduring power. The registration procedure is very simple, involving only an application addressed to the registrar and the giving of notice to the donor and other persons. These forms will be prescribed. I am not convinced it is necessary to provide for non-material defects in these forms.
Subsection (5) taken in conjunction with the further amendment to section 10 made by amendment No. 30 should ensure that all non-contentious applications for registration are registered by the registrar of wards of court even if there is a material divergence from the prescribed form. Amendment No. 32 is designed to cater for cases where an enduring power which has a material defect which nevertheless would not justify frustrating the manifest intention of the donor to create an enduring power. For example, the enduring power may not contain the required statement that the donor has read the information in the document about the effect of creating the power or had it read to him or her whereas in fact that has been done and the solicitor can give evidence to that effect. The doctor's certificate may also be technically defective. The requirements of section 5 and the regulations are complex enough and there is a case for providing some kind of safety net as proposed in the amendment.
I move amendment No. 32:
In page 9, subsection (5), between lines 8 and 9 to insert the following:
"(b) The court may, notwithstanding that an instrument may not comply with the provisions of section 5 or regulations made thereunder, register the instrument as an enduring power if it is satisfied——
(i) that the donor intended the power to be effective during any mental incapacity of the donor,
(ii) that the power was not executed as a result of any fraud or undue pressure,
(iii) that the attorney is suitable to be the donor's attorney, and
(iv) that it is desirable in the interests of justice so to register the instrument."
