Dáil Éireann Debate, Wednesday - 21 April 2021
1218. Deputy David Stanton asked the Minister for Children, Equality, Disability, Integration and Youth the changes he plans to make to the way in which a person with limited or no decision-making capacity can be represented by a person with power of attorney; and if he will make a statement on the matter. [18249/21]
View answerThe Assisted Decision-Making (Capacity) Act 2015 (the 2015 Act) provides a modern statutory framework to support decision-making by adults with capacity difficulties.
The 2015 Act includes a new part, Part 7, which relates to Enduring Powers of Attorney (EPA). This part has not been commenced yet. The timeline for commencement is June 2022. The following is a summary of provisions with regard to EPAs in the 2015 Act but should not be considered a legal interpretation.
- The relevant person (here called the donor) can appoint a person (here called an attorney) to have general authority to act on their behalf in relation to specified areas confirmed in writing (known as the EPA);
- The areas can include either property and affairs, personal welfare or both areas;
- EPAs under the Powers of Attorney Act 1996 cannot be made after commencement of the 2015 Act;
- The EPA does not enter into force until the donor lacks capacity in one or more areas in the EPA and the instrument has been registered by the attorney;
- The Director of the Decision Support Service (DSS), the agency charged with supervising EPAs, will maintain a register of EPAs and make it available for inspection to specified people. The Director can issue an authenticated copy to a specified person and will keep a record of who inspects the register and receives authenticated copies;
- Statements from the donor and his/her legal representative, medical practitioner, and healthcare professional must accompany the EPA confirming that the donor has the capacity to make the EPA and confirming that the donor has lost such capacity at point of registration of the EPA;
- The EPA cannot include a refusal of life-sustaining treatment or any decision in an Advance Healthcare Directive;
- The donor must give notice to the following people that an EPA has been executed: a spouse/civil partner, cohabitant, any of the donor's children over 18, a decision-making assistant, co-decision-maker, decision-making representative, a designated healthcare representative, any other attorney, any other person specified by the donor.
- There can be more than one attorney and they can act jointly, jointly and severally or jointly for some matters and severally for others.
The 2015 Act also includes provisions in relation to when a person cannot be an attorney; when an attorney can be disqualified; the annual reports the attorney must submit to the DSS; how complaints and objections can be raised with the DSS; and the offences related to EPAs.
