(a) exercise any powers in relation to the settlement of any part of the property of the relevant person, whether for the relevant person’s benefit or for the benefit of others, or (b) exercise any power (including the power to consent) vested in the relevant person, whether beneficially or as trustee or otherwise.
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(4)Subject to the terms of any advance healthcare directive made by the relevant person and subject to relevant powers exercisable by any designated healthcare representative appointed under the directive, a decision-making representative for a relevant person shall not refuse consent to the carrying out or continuation of life-sustaining treatment or consent to the withdrawal of life-sustaining treatment for the relevant person.
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(5)A decision-making representative for a relevant person shall not do an act that is intended to restrain the relevant person unless there are exceptional emergency circumstances and— (a) the relevant person lacks capacity in relation to the matter in question or the decision-making representative reasonably believes that the relevant person lacks such capacity, (b) the decision-making representative reasonably believes that it is necessary to do the act in order to prevent an imminent risk of serious harm to the relevant person or to another person, and (c) the act is a proportionate response to the likelihood of the harm referred to in paragraph (b) and to the seriousness of such harm.
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(6)For the purposes of this section, a decision-making representative for a relevant person restrains the relevant person if he or she— (a) uses, or indicates an intention to use, force to secure the doing of an act which the relevant person resists, (b) intentionally restricts the relevant person’s liberty of voluntary movement or behaviour, whether or not the relevant person resists, (c) administers a medication, which is not necessary for a medically identified condition, with the intention of controlling or modifying the relevant person’s behaviour or ensuring that he or she is compliant or not capable of resistance, or (d) authorises another person to do any of the things referred to in paragraphs (a) to (c).
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(7)A decision-making representative for a relevant person who restrains a relevant person shall cease the restraint immediately upon the restraint no longer being necessary in order to prevent an imminent risk of serious harm to the relevant person or to another person.
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(8)Subsections (5) to (7) shall not be construed to prejudice the generality of section 69 of the Mental Health Act 2001 or of rules made under that section.
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Register of decision-making representation orders 45. (1) The Director shall establish and maintain a Register (in this Part referred to as “the Register”) of decision-making representation orders.
\n
(2)The Register shall be in such form as the Director considers appropriate.
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(3)The Director shall make the Register available for inspection by— (a) a body or class of persons prescribed by regulations made by the Minister for this purpose, and (b) a person who satisfies the Director that he or she has a legitimate interest in inspecting the Register.
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(4)The Director may issue an authenticated copy of a decision-making representation order, or part thereof, on the Register on payment of a fee prescribed by regulations made by the Minister to— (a) a body or class of persons prescribed by regulations made by the Minister for this purpose, and (b) a person who satisfies the Director that he or she has a legitimate interest in obtaining a copy.
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Reports by decision-making representative 46. (1) Subject to subsection (2), a decision-making representative shall, within 12 months after the making of the decision-making representation order appointing him or her, and thereafter at intervals of not more than 12 months, prepare and submit to the Director a report in writing as to the performance of his or her functions as such decision-making representative during the relevant period.
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(2)The court may direct that a report be submitted to the Director within such shorter period or within such shorter intervals than those specified in subsection (1).
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(3)Every such report submitted to the Director shall be in such form as may be prescribed by regulations made by the Minister and shall include details of all transactions relating to the relevant person’s finances which are within the scope of the decision-making representation order and details of all costs, expenses and remuneration claimed by or paid to the decision-making representative during the relevant period.
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(4)A decision-making representative who has restrained the relevant person at any time during the relevant period shall include in the report details of each such restraint and the date on which, and the place where, such restraint occurred.
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(5)Where a decision-making representation order authorises a decision-making representative to make decisions in relation to a relevant person’s property and affairs, the decision-making representative shall within 3 months of his or her appointment as decision-making representative, submit to the Director a schedule of the relevant person’s assets and liabilities and a projected statement of the relevant person’s income and expenditure.
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(6)Where a decision-making representation order authorises a decision-making representative to make decisions in relation to a relevant person’s property and affairs, the decision-making representative shall keep proper accounts and financial records in respect of the relevant person’s income and expenditure and shall— (a) submit the accounts and records as part of a report to the Director under this section, and (b) make available for inspection by the Director or by a special visitor, at any reasonable time, such accounts and records.
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(7)Where a decision-making representative fails to submit a report in accordance with this section or submits an incomplete report or fails to comply with subsection (5) or (6), the Director shall notify the decision-making representative of that failure or incompleteness and give the decision-making representative such period of time as is specified in the notification to comply or submit a complete report.
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(8)Where a decision-making representative fails to comply with a notification under subsection (7), the Director shall— (a) in the case of the submission of an incomplete report and following any necessary enquiries to satisfy himself or herself that the report is substantially in accordance with this section and regulations made by the Minister, accept the report as if it were in compliance with this section and the relevant regulations, or (b) make an application to the court for a determination as to whether the decision-making representative should continue as decision-making representative for the relevant person.
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(9)Pursuant to an application to it under subsection (8)(b), the court may determine that a decision-making representative who has not complied with this section shall no longer act as decision-making representative for the relevant person concerned.
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(10)In this section “relevant period” means the period of time to which the report relates which shall be the period of time between the date of the decision-making representation order or the date of submission of the previous report, as the case may be, and the date immediately preceding the date of submission of the report concerned.
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Complaints in relation to decision-making representatives 47. (1) A person may make a complaint in writing to the Director concerning one or more of the following matters: (a) that a decision-making representative has acted, is acting, or is proposing to act outside the scope of his or her functions as specified in the decision-making representation order; (b) that a decision-making representative is not suitable, having regard to the matters referred to in section 38
\n
(5), to be a decision-making representative.
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(2)Following the receipt of a complaint under subsection (1), the Director shall carry out an investigation of the matter which is the subject of that complaint and— (a) where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to a matter specified in the complaint, or (b) where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for same.
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(3)A person who receives a notification under subsection (2)(b) may, not later than 21 days after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.
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(4)The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an investigation and make an application to the court for a determination in relation to any matter specified in subsection (1).
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(5)The court may— (a) pursuant to an application to it under subsection (2)(a) or (4), or (b) pursuant to an appeal under subsection (3), make a determination in relation to a matter specified in subsection (1) and may, if it considers it appropriate, determine that a decision-making representative shall no longer act as such in relation to the relevant person concerned.
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Chapter 5
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Interim orders, reviews and expert reports Interim orders 48. (1) Where an application under this Part has been brought before the court but not determined, the court may make an interim order in relation to the relevant person the subject of the application if— (a) the matter to which the order relates is one in respect of which the court may make an order under this Part, (b) the court has reason to believe that the relevant person lacks capacity in relation to the matter, and (c) in the opinion of the court, it is in the interests of the relevant person to make the order without delay.
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(2)An order under this section shall— (a) limit the period of time for which the order shall have effect, and (b) limit the operation of the order to matters specified in the order, but the court may renew the order if it considers that it is in the interests of the relevant person to do so.
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(3)The court may vary or revoke an order made under this section, whether of its own motion or pursuant to an application to it by a person entitled by virtue of section 36 to make the application.
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(4)This section shall, with all necessary modifications, apply to a direction which the court may give under this Part as it applies to an order which it may make under this Part.
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Review of declaration as respects capacity 49. (1) Where the court makes a declaration under section 37(1), an application for a review of the declaration may be made to the court at any time by the relevant person or, with the consent of the court, by any of the persons referred to in any of paragraphs (b) to (i) of section 36
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(4).
\n
(2)Notwithstanding subsection (1), the court shall in every case review a declaration under section 37
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(1)at intervals specified by the court when making the declaration but in every such case at intervals of— (a) subject to paragraph (b), not more than 12 months, (b) not more than 3 years if the court is satisfied that the relevant person is unlikely to recover his or her capacity.
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(3)The periods of 12 months and 3 years referred to in subsection (2) shall run from the date on which the court made or last reviewed, as appropriate, the declaration referred to in that subsection.
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(4)(a) Where, having reviewed the capacity of a relevant person, the court is satisfied that the relevant person no longer lacks capacity to make one or more than one relevant decision, the court shall— (i) make an order revoking or amending, as appropriate, the declaration concerned under section 37
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(1), (ii) make an order varying or discharging, as appropriate, a decision-making order or decision-making representation order of which the relevant person is the subject, and (iii) give such directions as it thinks appropriate for the order or orders to have full effect. (b) Where, having reviewed the capacity of a relevant person, the court is satisfied that the relevant person continues to lack capacity to make one or more than one relevant decision, the court shall make an order confirming the declaration concerned under section 37
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(1).
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(5)This section shall not apply where the reason why the application to the court under this Part seeking a declaration under section 37
\n
(1)relating to capacity in respect of the relevant person the subject of the application was made is no longer of relevance.
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Expert reports 50. (1) In considering any application under this Part for a declaration, order or review, the court shall have all such powers as are necessary to assist it in making a decision.
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(2)For the purposes of an application referred to in subsection (1), the court may direct that such reports as the court considers necessary be furnished to it, including— (a) medical reports relating to the relevant person the subject of the application (including reports relating to the cognitive ability of that person), (b) reports relating to the circumstances of the relevant person (including financial reports and valuations of property in which the relevant person has an interest), and (c) reports from healthcare professionals, or other relevant experts, relating to the relevant person.
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Chapter 6
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Notification of Director of the Decision Support Service of declarations, etc., under this Part Notification of Director of the Decision Support Service 51. Where the court makes a declaration or an order under this Part, or gives a direction under this Part, the registrar of the court making the declaration or order, or giving the direction, shall in each case furnish a copy of the declaration or order, or the direction, as the case may be, to the Director as soon as is practicable after the declaration or order is made or the direction is given.
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Chapter 7
\n
Legal aid in respect of applications under this Part Amendment of Act of 1995 52. The Act of 1995 is amended— (a) in section 1 by inserting the following definition: “ ‘relevant person’ has the meaning it has in the Assisted Decision-Making (Capacity) Act 2015;”, (b) in section 26(3) — (i) in paragraph (a), by substituting “has already been given,” for “has already been given, and”, (ii) in paragraph (b), by substituting “section 28(9)(c), and” for “section 28(9)(c).”, and (iii) by inserting, after paragraph (b), the following: “(c) a party to an application under Part 5 of the Assisted Decision-Making (Capacity) Act 2015 shall qualify for legal advice.”, (c) in section 28 by inserting after subsection (3) the following: “(3A) Where the proceedings the subject matter of the application under this section concern an application under Part 5 of the Assisted Decision-Making (Capacity) Act 2015 relating to the matter referred to in section 37
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(1)of that Act— (a) paragraphs (c) and (e) of subsection (2) shall not apply, and (b) where the applicant is a relevant person, paragraph (a) shall not apply.”, (d) in section 28(5) — (i) in paragraph (d) by deleting “aid.” and substituting “aid, and”, and (ii) by inserting after paragraph (d) the following: “(e) who is a patient, within the meaning of the Mental Health Act 2001 , for the purpose of providing that person with legal representation before a tribunal in proceedings under that Act.”, (e) in section 33, by inserting after subsection (7) the following: “(7A) Where a legal aid certificate has been granted to an applicant who is a relevant person who does not satisfy the criteria in respect of financial eligibility specified in section 29, the Board may seek to recover some or all of the costs of providing the legal aid to the relevant person concerned.”, and (f) in section 37(2), by inserting after paragraph (fb) the following: “(fc) make provision for the mechanism for recovery of the costs referred to in section 33(7A);”.
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PART 6
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Wards Definitions — Part 6 53. In this Part— “ward” means a relevant person in the wardship of a wardship court; “wardship court” means the High Court or Circuit Court exercising its jurisdiction under this Part and, in relation to a ward, means that court which made the order by virtue of which the ward is a ward.
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Review of capacity of wards who are adults 54. (1) An application for a declaration under section 55
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(1)in respect of a ward who has attained the age of 18 years by the date of commencement of this Part may, with the consent of the wardship court, be made to the wardship court at any time by— (a) the ward, (b) a relative or friend of the ward who has had such personal contact with the ward over such period of time that a relationship of trust exists between them, or (c) such other person as appears to the wardship court to have a sufficient interest or expertise in the welfare of the ward.
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(2)Notwithstanding subsection (1), the wardship court shall, within 3 years from the date of commencement of this Part, make a declaration under section 55
\n
(1)in respect of a ward who— (a) reaches the age of 18 years by that date, or (b) reaches the age of 18 years within 2 years and 6 months from that date.
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(3)Where a ward reaches the age of 18 years after the period specified in subsection (2)(b), the wardship court shall, within 6 months of the ward reaching that age, make a declaration under section 55
\n
(1)in respect of the ward.
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Declarations following review and discharge from wardship 55. (1) The wardship court, on an application being made to it under section 54
\n
(1),or pursuant to section 54
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(2)or (3), shall— (a) declare that the ward does not lack capacity, or (b) make one or more than one of the following declarations: (i) that the ward lacks capacity, unless the assistance of a suitable person as a co-decision-maker is made available to him or her, to make one or more than one decision; (ii) that the ward lacks capacity, even if the assistance of a suitable person as a co-decision-maker were made available to him or her.
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(2)Where the wardship court makes a declaration pursuant to subsection (1)(a), it shall immediately discharge the ward from wardship and shall order that the property of the former ward be returned to him or her and give such directions as it thinks appropriate having regard both to the discharge and the circumstances of the former ward.
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(3)Where the wardship court makes a declaration pursuant to subsection (1)(b)(i), it shall, on registration of a co-decision-making agreement, discharge the ward from wardship and shall order that the property of the former ward be returned to him or her and give such directions as it thinks appropriate having regard both to the discharge and the circumstances of the former ward.
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(4)Where the court makes a declaration pursuant to subsection (1)(b)(i) but— (a) there is no suitable person to act as co-decision-maker for the former ward, or (b) a co-decision-making agreement in respect of the former ward is not registered in accordance with Part 4 within a period set down by the wardship court, the wardship court shall (subject to it allowing for any extension of the period set down by it)— (i) as if it had made a declaration under subsection (1)(b)(ii), make such orders under Part 5 as it considers appropriate as if the wardship court were the court under Part 5, and (ii) order that the property of the former ward be returned to him or her upon the appointment of a decision-making representative in respect of the former ward.
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(5)Where the wardship court makes a declaration pursuant to subsection (1)(b)(ii), it shall— (a) make such orders as it considers appropriate under Part 5 as if the wardship court were the court under Part 5, and (b) order that the property of the former ward be returned to him or her upon the appointment of a decision-making representative in respect of the former ward.
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Saver 56. (1) The repeal of the Lunacy Regulation (Ireland) Act 1871 by section 7 shall not affect the validity of any order— (a) made by the wardship court within its jurisdiction, and (b) which was in force immediately before the commencement of this Part.
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(2)Pending a declaration under section 55
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(1), the jurisdiction of the wardship court as set out in sections 9 and 22
\n
(2)of the Courts (Supplemental Provisions) Act 1961 shall continue to apply.
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Director and wards who are adults 57. The wardship court may, after consultation with the Director, in respect of— (a) a ward— (i) who was a ward immediately before the commencement of this section, and (ii) who has attained the age of 18 years, or (b) a class of wards— (i) who were wards immediately before the commencement of this section, and (ii) each member of which has attained the age of 18 years, direct the Director to exercise his or her functions in relation to that ward, or that class of wards, as the case may be, as if the ward or class of wards were the subject of a declaration under section 37
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(1)(b) that the ward, or the wards who fall within that class, lacked capacity, and the wardship court may, in order to give effect to its direction, give such other directions as it thinks appropriate having regard to the circumstances of the ward or the members of that class of wards, as the case may be.
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PART 7
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Enduring Powers of Attorney Interpretation — Part 7 58. (1) In this Part— “disqualified”, in relation to an attorney, means the attorney becomes a person referred to in section 66 or a person that the court determines under this Part shall no longer act as attorney for the donor concerned; “donor” has the meaning given to it in section 59
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(1); “donor under the Act of 1996” means a person who has created an enduring power under the Act of 1996; “prescribed” means prescribed by regulations made by the Minister under section 79 ; “trust corporation” has the meaning it has in section 30 of the Succession Act 1965 but shall not include a designated centre or mental health facility in which the donor resides.
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(2)In this Part “person”, in relation to an attorney, includes a trust corporation but only to the extent that the authority conferred under the enduring power of attorney relates to property and affairs.
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Enduring power of attorney — general 59. (1) Subject to the provisions of this section and sections 60 , 62 and 63 , a person who has attained the age of 18 years (in this Act referred to as “donor”) may appoint another person who has also attained that age (in this Act referred to as “attorney”) on whom he or she confers either or both of the following: (a) general authority to act on the donor’s behalf in relation to all or a specified part of the donor’s property and affairs; or (b) authority to do specified things on the donor’s behalf in relation to the donor’s personal welfare or property and affairs, or both; which may, in either case, be conferred subject to conditions and restrictions.
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(2)The authority referred to in subsection (1) shall be known as an enduring power of attorney and shall be conferred in writing in an instrument which is in compliance with this Part and regulations made under section 79 .
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(3)A donor may, in an enduring power of attorney, appoint a person who shall act as attorney for the donor in respect of the relevant decisions specified therein in the event that an attorney on whom authority is conferred dies or is unable to act or is disqualified from acting as attorney.
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(4)An enduring power of attorney shall not enter into force until— (a) the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power, and (b) the instrument creating the enduring power of attorney has been registered in accordance with section 69 .
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(5)Where an enduring power of attorney is expressed to confer general authority in respect of all or a specified part of the donor’s property and affairs, it operates to confer, subject to any restrictions provided in the power or in this Part, authority to do on behalf of the donor anything which the donor can lawfully do by attorney.
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(6)A person is suitable for appointment as an attorney if he or she is able to perform the functions of attorney as specified in the enduring power of attorney.
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Content of instrument creating an enduring power of attorney 60. (1) An instrument creating an enduring power of attorney shall include the following statements: (a) by the donor that he or she— (i) understands the implications of creating the power, (ii) intends the power to be effective at any subsequent time when he or she lacks capacity in relation to one or more relevant decisions which are the subject of the power, and (iii) is aware that he or she may vary or revoke the power prior to its registration; (b) by a legal practitioner that, after interviewing the donor and making any necessary enquiries, he or she— (i) is satisfied that the donor understands the implications of creating the power, (ii) is satisfied that the donor is aware that he or she may vary or revoke the power prior to its registration, and (iii) has no reason to believe that the instrument is being executed by the donor as a result of fraud, coercion or undue pressure; (c) by a registered medical practitioner that in his or her opinion at the time the power was executed, the donor had the capacity to understand the implications of creating the power; (d) by a healthcare professional of a class that shall be prescribed, that in his or her opinion at the time the power was executed, the donor had the capacity to understand the implications of creating the power; and (e) by the attorney, that he or she— (i) understands the implications of undertaking to be an attorney for the donor and has read and understands the information contained in the instrument, (ii) understands and undertakes to act in accordance with his or her functions as specified in the instrument creating the enduring power of attorney, (iii) understands and undertakes to act in accordance with the guiding principles, (iv) understands and undertakes to comply with the reporting obligations under section 75 , and (v) understands the requirements in relation to registration of the power.
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(2)An instrument creating an enduring power of attorney shall include the following: (a) the name, date of birth and contact details of the donor; (b) subject to subsection (3), the signature of the donor and the date that he or she signed the power; (c) the name, date of birth and contact details of the attorney; (d) the signature of the attorney and the date that he or she signed the enduring power of attorney; (e) the signatures of the 2 witnesses referred to in subsection (4)(a).
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(3)An instrument creating an enduring power of attorney may be signed on behalf of the donor by a person who has attained the age of 18 years and who is not the attorney or a witness referred to in subsection (4)(a) if— (a) the donor is unable to sign the instrument, (b) the donor is present and directs that the instrument be signed on his or her behalf by that person, and (c) the signature of the person is witnessed in accordance with subsection (4)(b).
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(4)(a) The donor, or the person signing on his or her behalf in accordance with subsection (3), and the attorney shall sign the instrument creating the enduring power of attorney in the presence of each other and in the presence of 2 witnesses— (i) each of whom has attained the age of 18 years, (ii) of whom at least one is not an immediate family member of the donor or the attorney, and (iii) neither of whom is an employee or agent of the attorney. (b) Each of the witnesses referred to in paragraph (a) shall witness the signature of the donor (or the person signing on his or her behalf) and the signature of the attorney by applying his or her own signature to the instrument creating the enduring power of attorney.
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(5)Where a donor proposes to remunerate an attorney for performing his or her functions as attorney, the instrument creating the enduring power of attorney shall specify the proposed remuneration and the functions to which it relates.
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(6)In this section, “immediate family member” means— (a) a spouse, civil partner, or cohabitant, (b) a child, son-in-law or daughter-in-law, (c) a parent, step-parent, mother-in-law or father-in-law, (d) a brother, sister, step-brother, step-sister, brother-in-law or sister-in-law, (e) a grandparent or grandchild, (f) an aunt or uncle, or (g) a nephew or niece.
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Notice of execution of an enduring power of attorney 61. (1) The donor shall, as soon as practicable after the execution of the instrument creating the enduring power of attorney, give notice, in such form as shall be prescribed, of such execution to the following persons: (a) a spouse or civil partner of the donor; (b) the cohabitant (if any) of the donor; (c) any children of the donor who have attained the age of 18 years; (d) any decision-making assistant for the donor; (e) any co-decision-maker for the donor; (f) any decision-making representative for the donor; (g) any designated healthcare representative for the donor; (h) any other attorney for the donor or attorney under the Act of 1996 in respect of the donor; (i) any other person or persons as may be specified by the donor in the instrument creating the enduring power of attorney as a person or persons to whom notice shall be given under this section and section 68
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(3).
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(2)Where there are fewer than 3 persons to whom notice may be given pursuant to subsection (1), the donor shall specify 2 persons in the instrument creating the enduring power of attorney as persons to whom notice shall be given under this section and section 68
\n
(3).
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Scope of authority — personal welfare decisions 62. (1) Where an enduring power of attorney confers authority in relation to personal welfare, the power does not authorise an attorney to do an act that is intended to restrain the donor unless there are exceptional emergency circumstances and— (a) the donor lacks capacity in relation to the matter in question or the attorney reasonably believes that the donor lacks such capacity, (b) the attorney reasonably believes that it is necessary to do the act in order to prevent an imminent risk of serious harm to the donor or to another person, and (c) the act is a proportionate response to the likelihood of the harm referred to in paragraph (b) and to the seriousness of such harm.
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(2)For the purposes of this section, an attorney restrains a donor if he or she— (a) uses, or indicates an intention to use, force to secure the doing of an act which the donor resists, (b) intentionally restricts the donor’s liberty of voluntary movement or behaviour, whether or not the donor resists, (c) administers a medication, which is not necessary for a medically identified condition, with the intention of controlling or modifying the donor’s behaviour or ensuring that he or she is compliant or not capable of resistance, or (d) authorises another person to do any of the things referred to in paragraph (a) to (c).
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(3)An attorney who restrains a donor shall cease the restraint immediately upon the restraint no longer being necessary in order to prevent an imminent risk of serious harm to the donor or to another person.
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(4)Subsections (1) to (3) shall not be construed to prejudice the generality of section 69 of the Mental Health Act 2001 or of rules made under that section.
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(5)A donor shall not, in an enduring power of attorney, include a relevant decision— (a) relating to refusal of life-sustaining treatment, or (b) which is the subject of an advanced healthcare directive made by him or her.
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(6)To the extent that an enduring power of attorney includes a relevant decision specified in subsection (5), the power shall be null and void.
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Scope of authority — property and affairs 63. (1) An attorney may act under an enduring power of attorney relating to property and affairs for the attorney’s benefit or that of other persons to the extent provided for in the power, where specific provision to that effect is made in the power and subject to any conditions or restrictions contained in the power.
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(2)An attorney may not dispose of the property of the donor by way of gift unless specific provision to that effect is made in the enduring power of attorney.
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(3)Where an enduring power of attorney authorises the disposal of the donor’s property by way of gift, the attorney’s power to make such gifts shall, in addition to being subject to any conditions or restrictions in the enduring power, be limited to— (a) gifts made on customary occasions to persons (including the attorney) who are related to or connected to the donor and in relation to whom the donor might be expected to make gifts, and (b) gifts to any charity to which the donor made or might be expected to make gifts, provided that the value of the gift is reasonable having regard to all the circumstances and in particular the extent of the donor’s assets and any financial obligations.
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Application to joint and joint and several attorneys 64. (1) A donor may, in an enduring power of attorney, appoint more than one attorney and may specify that the attorneys shall act— (a) jointly, (b) jointly and severally, or (c) jointly in respect of some matters and jointly and severally in respect of other matters, and, in default of the power so specifying, the attorneys shall be deemed to have authority to act jointly.
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(2)Where 2 or more persons have authority to act jointly as attorneys, then, in the case of the death, lack of capacity or disqualification of any one or more of them, the remaining attorney or attorneys may continue to act, whether solely or jointly, as the case may be, unless the enduring power expressly provides to the contrary.
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Persons who are not eligible to be attorneys 65. (1) A person shall not be eligible for appointment as an attorney under an enduring power of attorney if he or she— (a) has been convicted of an offence in relation to the person or property of the person who intends to appoint an attorney, (b) has been the subject of a safety or barring order in relation to the person who intends to appoint an attorney, (c) is an undischarged bankrupt or is currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty, (d) is a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, (e) is a person who is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Act of 2014, by virtue of that Chapter or any other provisions of that Act, (f) is a person who is— (i) the owner or the registered provider of a designated centre or mental health facility in which the intending donor resides, or (ii) residing with, or an employee or agent of, such owner or registered provider, unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the intending donor, or (g) has been convicted of an offence under section 34 , 80 , 90 or 145 .
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(2)Subsection (1)(c), (d) and (e) shall not apply where it is proposed to confer authority only in relation to personal welfare matters.
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Disqualification of attorney 66. (1) An attorney shall, with effect from the date on which an event specified in any of paragraphs (a) to (c) occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, and unless the instrument creating the enduring power of attorney provides otherwise, be disqualified from being an attorney for the donor where the attorney is the spouse of the donor and subsequently— (a) the marriage is annulled or dissolved either— (i) under the law of the State, or (ii) under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State, (b) a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect, (c) a written agreement to separate is entered into between the spouses, or (d) subject to section 2(2), the spouses separate and cease to cohabit for a continuous period of 12 months.
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(2)An attorney shall, with effect from the date on which an event specified in paragraph (a) or (b) occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, and unless the instrument creating the enduring power of attorney provides otherwise, be disqualified from being attorney for the donor where the attorney is the civil partner of the donor and subsequently— (a) the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either— (i) under the law of the State, or (ii) under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State, (b) a written agreement to separate is entered into between the civil partners, or (c) subject to section 2(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.
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(3)Subject to section 2(2), an attorney shall, at the expiry of the period referred to in this subsection, and unless the instrument creating the enduring power of attorney provides otherwise, be disqualified from being an attorney for the donor where the attorney is the cohabitant of the donor and subsequently the cohabitants separate and cease to cohabit for a continuous period of 12 months.
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(4)Subject to subsection (5), where, subsequent to the appointment of an attorney— (a) the attorney is convicted of an offence in relation to the person or property of the donor or the person or property of a child of the donor, (b) a safety or barring order is made against the attorney in relation to the donor or a child of the donor, (c) the attorney becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty, (d) the attorney becomes a person in respect of whom a declaration has been made under section 819 of the Act of 2014 or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, (e) the attorney becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter or any other provisions of that Act, (f) the attorney becomes— (i) the owner or the registered provider of a designated centre or mental health facility in which the intending donor resides, or (ii) a person residing with, or an employee or agent of, a person referred to in sub paragraph (i), unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the intending donor, (g) the attorney is convicted of an offence under section 34 , 80 , 90 or 145 , (h) the attorney— (i) enters into a decision-making assistance agreement as a relevant person, (ii) enters into a co-decision-making agreement as a relevant person, (iii) has an enduring power of attorney or an enduring power under the Act of 1996 registered in respect of himself or herself, or (iv) becomes the subject of a declaration under section 37
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(1), or (i) the attorney is a trust corporation and the trust corporation is dissolved, the attorney shall be disqualified from being an attorney for the donor with effect from the day on which the attorney falls within any of paragraphs (a) to (i).
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(5)Subsections (4)(c), (d) and (e) shall not apply to an attorney insofar as authority is conferred on him or her under the enduring power of attorney in relation to personal welfare matters.
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(6)Where an attorney becomes disqualified under this section, he or she, or in the case of disqualification pursuant to subsection (4)(h)(iii) or (iv), his or her attorney, decision-making representative or the court, as the case may be, shall notify the Director of such disqualification and the particulars relating thereto.
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(7)Where an attorney becomes disqualified, a relevant decision made solely by him or her after his or her disqualification shall be null and void.
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(8)Subsection (7) shall not operate to prevent a person who relied on a relevant decision referred to in that subsection from recovering damages in respect of any loss incurred by him or her as a result of that reliance.
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Function of court prior to registration 67. On application to it by any interested party, the court may, where it has reason to believe that the donor of an enduring power of attorney lacks capacity in relation to one or more relevant decisions, exercise any power which would become exercisable under section 77
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(3)on the registration of the instrument creating an enduring power of attorney and may do so whether or not the attorney concerned has made an application to the Director for registration of the instrument.
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Application for registration of instrument creating enduring power 68. (1) Where an attorney has reason to believe that the donor lacks capacity in relation to one or more relevant decisions which are the subject of the enduring power of attorney, the attorney shall, as soon as is practicable, make an application, in compliance with this Part and regulations made under section 79 , to the Director to register the instrument creating the enduring power of attorney.
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(2)An application to register an instrument under subsection (1) shall be made in such form and accompanied by such fee as shall be prescribed.
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(3)The attorney shall, at the same time as he or she makes an application under subsection (1), give notice, in such form as shall be prescribed, of the application and give a copy of the instrument creating an enduring power of attorney to the following persons: (a) the donor; (b) a spouse or civil partner (if any) of the donor; (c) the cohabitant (if any) of the donor; (d) any children of the donor who have attained the age of 18 years; (e) any decision-making assistant for the donor; (f) any co-decision-maker for the donor; (g) any decision-making representative for the donor; (h) any designated healthcare representative for the donor; (i) any other attorney for the donor or attorney under the Act of 1996 in respect of the donor; (j) any other person specified by the donor under section 61 .
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(4)An attorney may, before making an application to register an instrument creating an enduring power of attorney, apply to the court for a determination on any question as to the validity of the power.
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(5)Where an attorney has made an application to register an instrument creating an enduring power of attorney, then pending determination of the application, the attorney, or if more than one attorney has been appointed to act jointly or jointly and severally, as the case may be, any one of them, may take action under the power— (a) to maintain the donor or prevent loss to the donor’s assets, (b) to the extent permitted by the enduring power, to make a relevant decision which cannot reasonably be deferred until the application has been determined, or (c) to maintain the attorney or other persons in so far as that is permitted under the power.
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(6)Following the taking of an action pursuant to subsection (5), an attorney shall report to the Director— (a) what action he or she took, (b) the reasons as to why the action could not be deferred until after the registration of the instrument creating the enduring power of attorney, (c) any measures he or she took to encourage the donor to participate in the action taken, and (d) the outcome of the action.
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(7)An application to register an instrument creating an enduring power of attorney shall be accompanied by— (a) the instrument creating the enduring power of attorney, (b) a statement by a registered medical practitioner and a statement by such other healthcare professional of a class as shall be prescribed that in their opinion the donor lacks capacity in relation to one or more relevant decisions which are the subject of the enduring power, (c) details of any existing decision-making assistance agreement, co-decision-making agreement, decision-making order, decision-making representation order, power of attorney (whether an enduring power or otherwise and whether registered or not) or advance healthcare directive in respect of the appointer, (d) a copy of any notice given pursuant to subsection (3), (e) a copy of any notice given pursuant to section 61 , and (f) the prescribed fee.
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(8)Where there is more than one attorney appointed under an enduring power of attorney, any two or more of the attorneys may make a joint application to register the instrument.
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Registration of an instrument creating an enduring power of attorney 69. (1) On receipt of an application under section 68 , the Director shall review the application and any objections received under section 71 and shall carry out such reasonable enquiries as he or she considers necessary in order to establish whether the following criteria are met: (a) the enduring power of attorney and the instrument creating it are in accordance with sections 59 , 60 , 62 and 63 ; (b) the attorney is a suitable person within the meaning of section 59
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(6); (c) the attorney is eligible for appointment within the meaning of section 65 or not disqualified by virtue of section 66; (d) notice has been given in accordance with section 61 and section 68
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(3); and (e) the application is in accordance with section 68 .
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(2)Where, after reviewing an application under section 68 , the Director is satisfied that the application is in order, he or she shall, subject to section 71 , register the instrument creating the enduring power of attorney.
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(3)Where, after reviewing an application under section 68 , the Director forms the view that one or more of the criteria in paragraphs (a) to (e) of subsection (1) are not satisfied, he or she shall notify the attorney and the donor of his or her view, provide reasons for that view and give the attorney and the donor an opportunity, within a reasonable timeframe specified by the Director, to respond.
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(4)Following a review of any response received pursuant to subsection (3), the Director shall— (a) where he or she is of the view that the criteria set out in paragraphs (a) to (e) of subsection (1) are satisfied, register, subject to section 71 , the instrument creating the enduring power of attorney, or (b) where he or she remains of the view that one or more of the criteria set out in paragraphs (a) to (e) of subsection (1) is not satisfied, refuse to register the instrument creating the enduring power of attorney and notify the attorney and the donor of that fact and the reasons for his or her view.
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(5)An attorney whose application under section 68 is refused may, not later than 21 days after the date of issue of the notification of refusal by the Director, appeal the refusal to the court.
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(6)Upon an appeal under subsection (5), the court may— (a) require the Director to register the instrument creating the enduring power of attorney, (b) affirm the decision of the Director, or (c) make such other order or declaration as it considers appropriate.
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(7)Following registration of an instrument creating an enduring power of attorney, the Director shall send an authenticated copy of the instrument to the attorney and the donor.
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(8)A document purporting to be a copy of an instrument creating an enduring power of attorney which has been authenticated by the Director shall be evidence of the contents of the instrument and the date upon which it was registered.
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Effect and proof of registration 70. (1) The effect of the registration of an instrument creating an enduring power of attorney is that— (a) no revocation of the enduring power of attorney by the donor shall be valid unless the court confirms the revocation under section 73
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(6), (b) no disclaimer of the enduring power shall be valid except on notice to the donor and with the consent of the court, and (c) the donor may not extend or restrict the scope of the authority conferred by him or her in the enduring power and no consent or instruction given by the donor after registration of the instrument shall, in the case of a consent, confer any right and in the case of an instruction, impose or confer any obligation or right on or create any liability of the attorney or other persons having notice of the consent or instruction.
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(2)Subsection (1) applies for so long as the instrument is registered whether or not the donor has for the time being capacity.
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Objections to registration 71. (1) Any of the persons referred to in section 68
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(3), or any other person who appears to the Director to have sufficient interest or expertise in the welfare of the donor, may, no later than 5 weeks from the date on which notice is given in accordance with that provision, notify the Director that he or she objects to the proposed registration.
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(2)An objection under subsection (1) shall be in such form and shall be accompanied by such fee as shall be prescribed by regulations made under section 79 and may be made on one or more of the following grounds: (a) that the enduring power of attorney or instrument creating it is not in accordance with section 59 , 60 , 62 or 63 ; (b) that the notice requirement of section 61 or section 68
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(3)was not complied with; (c) that the donor does not lack capacity; (d) that fraud, coercion or undue influence was used to induce the donor to execute the instrument creating the enduring power of attorney; (e) that a false statement is included in the instrument creating the enduring power of attorney or the application to register the instrument; (f) that the attorney is not a suitable person within the meaning of section 59
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(6).
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(3)Where the Director receives an objection in accordance with subsection (2), made within the period specified in subsection (1), he or she shall— (a) review the objection, (b) consult with the attorney and, where the Director considers it is appropriate to do so, the donor, and (c) consult with such other persons as he or she considers relevant, and shall— (i) where he or she is of the view that the objection is not well founded, notify the person who made the objection of his or her view, provide reasons for that view and proceed, subject to section 69
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(1), to register the instrument concerned, or (ii) where he or she is of the view that the objection is well founded, notify the person who made the objection of his or her view and make an application to the court for a determination on the matter and for a determination as to whether the enduring power should be registered.
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(4)The court, pursuant to an application made to it under subsection (3)(ii), may— (a) require the Director to register the instrument creating the enduring power of attorney, (b) declare that the instrument creating the enduring power of attorney should not be registered, or (c) make such other declaration or order as it considers appropriate.
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(5)A person who makes an objection under subsection (1) may, not later than 21 days after the date of issue of the notification by the Director under subsection (3)(i), appeal a decision to register the instrument concerned to the court.
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(6)Upon an appeal under subsection (5), the court may— (a) require the Director to remove the instrument concerned from the Register, (b) affirm the decision of the Director, or (c) make such other declaration or order as it considers appropriate.
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Register of enduring powers 72. (1) The Director shall establish and maintain a register (in this Part referred to as “the Register”) of instruments creating an enduring power of attorney.
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(2)The Register shall be in such form as the Director considers appropriate.
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(3)The Director shall make the Register available for inspection by— (a) a body or class of persons prescribed by regulations made under section 79 for this purpose, and (b) any person who satisfies the Director that he or she has a legitimate interest in inspecting the Register.
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(4)The Director may issue an authenticated copy of an enduring power, or part thereof, on the Register on payment of the prescribed fee to— (a) a body or class of person prescribed by regulations made under section 79 for this purpose, and (b) a person who satisfies the Director that he or she has a legitimate interest in obtaining a copy.
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(5)The Director shall keep a record of any body or person that has inspected the Register or received an authenticated copy from him or her.
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Revocation and variation of enduring power 73. (1) An enduring power of attorney may be varied or revoked by the donor, where the instrument creating the enduring power of attorney has not been registered and where the donor has capacity to make the variation or revocation, as the case may be.
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(2)A variation or revocation under subsection (1) shall be done in such form as shall be prescribed.
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(3)Subject to section 60
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(3), a revocation or variation of an enduring power of attorney shall be signed by the donor and his or her signature shall be acknowledged by 2 witnesses and section 60
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(4)shall apply with the necessary modifications.
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(4)A variation or revocation of an enduring power of attorney shall be accompanied by the following statements: (a) by the donor, that he or she understands the implication of varying or revoking the enduring power, as the case may be; (b) by a legal practitioner that, after interviewing the donor and making any necessary enquiries, he or she— (i) is satisfied that the donor understands the implication of varying or revoking, as the case may be, the enduring power, and (ii) has no reason to believe that the variation or revocation, as the case may be, is the result of fraud, coercion or undue pressure on the donor; (c) by a registered medical practitioner that in his or her opinion, at the time of the variation or revocation, as the case may be, the donor had the capacity to understand the implication of the variation or revocation; (d) by such other healthcare professional as shall be prescribed that in his or her opinion, at the time of the variation or revocation, as the case may be, the donor had the capacity to understand the implication of the variation or revocation; and (e) by the attorney, that he or she is aware of the variation or revocation and undertakes to act accordingly.
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(5)Subject to subsection (6) a donor may, after an instrument creating an enduring power of attorney has been registered, revoke the enduring power where he or she has capacity to do so.
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(6)A revocation referred to in subsection (5) is not valid unless an application is made to the court and the court is satisfied that— (a) the donor has done whatever is necessary in law to effect an express revocation of the enduring power of attorney and had capacity at the time of the purported revocation, and (b) the donor has given notice to the attorney of the revocation.
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Disclaimer by attorney 74. (1) An attorney may disclaim an enduring power of attorney where the instrument creating it has not been registered subject to his or her giving notice of such disclaimer to the donor.
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(2)Where an instrument creating an enduring power of attorney has been registered, the enduring power created by the instrument may only be disclaimed by an attorney with the consent of the court.
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Reports by attorney 75. (1) An attorney under an enduring power of attorney which confers authority in relation to property and affairs shall, within 3 months of the registration of the instrument appointing him or her as attorney, submit to the Director a schedule of the donor’s assets and liabilities and a projected statement of the donor’s income and expenditure.
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(2)An attorney under an enduring power of attorney which confers authority in relation to property and affairs shall keep proper accounts and financial records in respect of the donor’s income and expenditure and shall— (a) submit such accounts and records as part of a report to the Director under this section, and (b) make available for inspection by the Director or by a special visitor, at any reasonable time, such accounts and records.
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(3)An attorney shall, within 12 months after registration of the instrument appointing him or her as attorney, and thereafter at intervals of not more than 12 months, prepare and submit to the Director a report in writing as to the performance of his or her functions as such attorney during the relevant period.
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(4)Every report submitted to the Director pursuant to this section shall be in such form as shall be prescribed by regulations made under section 79 and shall include details of all costs, expenses and remuneration paid to and claimed by the attorney in the relevant period together with such other matters as are prescribed.
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(5)An attorney who has restrained the donor at any time during the relevant period shall include in the report details of each such restraint and the date on which, and the place where, such restraint occurred.
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(6)Where an attorney fails to submit a report in accordance with this section or submits an incomplete report or fails to comply with subsection (1) or (2), the Director shall notify the attorney of that failure or incompleteness and give him or her such period of time as is specified in the notification to comply or submit a complete report.
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(7)Where an attorney fails to comply with a notification under subsection (6), the Director shall— (a) in the case of the submission of an incomplete report and following any necessary enquiries to satisfy himself or herself that the report is substantially in accordance with this section and regulations made under section 79 , accept the report as if it were in compliance with this section and the relevant regulations, or (b) make an application to the court for a determination as to whether the co-decision-maker should continue as attorney for the donor.
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(8)Pursuant to an application to it under subsection (7)(a), the court may determine that an attorney who has not complied with this section shall no longer act as attorney for the donor concerned.
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(9)In this section “relevant period” means the period of time to which the report relates which shall be the period of time between the date of registration of the instrument creating the enduring power of attorney or the date of submission of the previous report, as the case may be, and the date immediately preceding the date of submission of the report concerned.
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Complaints in relation to attorneys 76. (1) A person may make a complaint in writing to the Director concerning one or more of the following matters: (a) that an attorney has acted, is acting, or is proposing to act outside the scope of his or her functions as specified in the instrument creating the enduring power of attorney; (b) that an attorney is not a suitable person within the meaning of section 59
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(6); (c) that fraud, coercion or undue pressure was used to induce a donor to appoint an attorney.
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(2)A person may, in respect of an attorney under the Act of 1996, make a complaint in writing to the Director concerning one or more of the following matters: (a) that an attorney under the Act of 1996, is acting or is proposing to act outside the scope of the enduring power under the Act of 1996; (b) that an attorney under the Act of 1996 is unable, for whatever reason, to perform his or her duties and obligations as construed in accordance with that Act; (c) that fraud, coercion or undue pressure was used to induce a donor under the Act of 1996 to appoint an attorney under the Act of 1996.
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(3)Following the receipt of a complaint under subsection (1) or (2), the Director shall carry out an investigation of the matter which is the subject of that complaint and— (a) where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to a matter specified in the complaint, or (b) where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for that view.
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(4)A person who receives a notification under subsection (3)(b) may, not later than 21 days after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.
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(5)The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an investigation and make an application to the court for a determination in relation to any matter specified in subsection (1) or (2).
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(6)The court may— (a) pursuant to an application to it under subsection (3)(a) or (5), or (b) pursuant to an appeal under subsection (4), make a determination in relation to a matter specified in subsection (1) or (2) and may, if it considers it appropriate, determine that— (i) an attorney shall no longer act as such in relation to the donor concerned, or (ii) an attorney under the Act of 1996 shall no longer act as such in relation to a donor under the Act of 1996.
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(7)The reference to “attorney” in sections 95 and 96 shall, for the purposes of this section, be construed as including an attorney under the Act of 1996.
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(8)The reference to “relevant person” in sections 95 , 96 and 99 shall, for the purposes of this section, be construed as including a donor under the Act of 1996.
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Applications to court 77. (1) Where the Director makes an application to the court for a determination on whether the instrument creating an enduring power of attorney should be registered, the court may, notwithstanding that— (a) the enduring power of attorney or the instrument creating it does not comply with section 59 or section 60 , or (b) the application to register the instrument was not in accordance with section 68 , register the instrument where it is satisfied that— (i) the donor intended the power to be effective during any period when the donor lacks capacity, (ii) fraud, coercion or undue pressure was not used to induce the donor to appoint an attorney, (iii) the attorney is suitable within the meaning of section 59
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(6)to be the donor’s attorney, and (iv) it is desirable in the interests of justice to register the enduring power.
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(2)In determining whether an attorney is suitable within the meaning of section 59
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(6), the court, in addition to any other matters which it considers relevant shall have regard to— (a) the relationship and degree of connection between the donor and the attorney, (b) the degree of involvement which will be required on the part of the attorney in the care of the donor, (c) the willingness of the attorney to carry out his or her functions under the enduring power, and (d) any conflict of interest which may arise.
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(3)Where an instrument creating an enduring power of attorney has been registered, the court may, whether on application by the donor, the attorney, the Director or an interested party— (a) determine any question as to the meaning or effect of the power, (b) give directions with respect to— (i) a relevant decision relating to the personal welfare of the donor made or about to be made by the attorney, (ii) the management or disposal by the attorney of the property and affairs of the donor, and (iii) the remuneration or expenses of the attorney, whether or not in default of or in accordance with any provision of the enduring power, including directions for the repayment of excessive, or the payment of additional, remuneration, and (c) consent to a disclaimer by the attorney of the enduring power.
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(4)Where the court gives a determination under subsection (3)(a), a direction under subsection (3)(b) or a consent under subsection (3)(c), it shall cause the Director to be notified of such direction or consent and the Director shall monitor the giving of effect by the attorney to such direction or consent as the case may be.
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Removal of instrument from the Register 78. (1) The Director shall remove from the Register an instrument creating an enduring power of attorney where— (a) there has been a revocation in accordance with section 73
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(6), or (b) subject to subsection (2), the attorney appointed under the instrument becomes disqualified.
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(2)Where there is more than one attorney appointed under an enduring power of attorney or where the donor has specified a person who shall act as attorney for him or her in the event that the attorney on whom the authority is conferred dies or is unable to act or is disqualified, then in the circumstances described in subsection (1), the Director shall note on the Register in connection with the power concerned the revocation or disqualification, as the case may be.
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Regulations 79. The Minister, having regard to the requirements of this Part, shall prescribe by regulations the following matters: (a) the form of an instrument creating an enduring power of attorney; (b) the form of notice under section 61 of execution of an instrument creating an enduring power of attorney; (c) the class of healthcare professionals under sections 60
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(1)(d), 68
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(7)(b) and 73
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(4)(d); (d) the form of application under section 68
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(2)to register an instrument; (e) the form of notice under section 68
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(3)of an application to register an instrument; (f) the form of a report under section 75 to be submitted by an attorney to the Director; (g) the form of an objection under section 71
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(2)to the registration of an instrument creating an enduring power of attorney; (h) the form of variation or revocation under section 73
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(2)of an enduring power of attorney; (i) the bodies or classes of persons under sections 72
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(3)and (4) who may inspect the Register and receive an authenticated copy of an enduring power of attorney; (j) the fees to be paid in connection with— (i) an application to register an enduring power of attorney, (ii) an objection to an application to register an enduring power of attorney, (iii) the issue of an authenticated copy of an enduring power of attorney.
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Offences in relation to enduring powers of attorney 80. (1) A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke an enduring power of attorney commits an offence and shall be liable— (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or (b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.
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(2)A person who, in an instrument creating an enduring power of attorney, in an application for registration of an enduring power of attorney, or in connection with such an application, makes a statement which he or she knows to be false in a material particular commits an offence and shall be liable— (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both, or (b) on conviction on indictment, to a fine not exceeding €15,000 or imprisonment for a term not exceeding 2 years, or both.
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(3)The reference in subsection (1) to coercion or undue influence includes any case where a person’s access to, or continued stay in, a designated centre or mental health facility, is contingent (whether in whole or in part) on the person having to, or being led to believe that he or she has to, create, vary or revoke an enduring power of attorney.
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Transitional provisions 81. (1) Subject to sections 76
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(2), 76
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(3), 76
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(4), 76
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(5), 76
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(6), 76
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(7)and 76
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(8), this Part shall not apply to— (a) an enduring power of attorney under the Act of 1996, (b) an attorney under the Act of 1996, and (c) a donor under the Act of 1996.
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(2)From the date of commencement of this Part— (a) a person shall not create an enduring power of attorney under the Act of 1996, and (b) the Act of 1996 shall not apply to an enduring power of attorney created after that date.
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PART 8
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Advance Healthcare Directives Definitions — Part 8 82. In this Part— “advance healthcare directive”— (a) in relation to a person who has capacity, means an advance expression made by the person, in accordance with section 84 , of his or her will and preferences concerning treatment decisions that may arise in respect of him or her if he or she subsequently lacks capacity, and (b) in relation to a designated healthcare representative, means the advance expression referred to in paragraph (a) under which the representative was designated as such representative, which has not been revoked pursuant to section 84
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(7); “applicable”, in relation to an advance healthcare directive, shall be construed in accordance with section 85 ; “designated healthcare representative”, in relation to a directive-maker, means the named individual designated, pursuant to section 87 , by the directive-maker, in his or her advance healthcare directive, to exercise the relevant powers; “directive-maker”— (a) in relation to an advance healthcare directive, means the person who made the directive, and (b) in relation to a designated healthcare representative, means the person who made the advance healthcare directive under which the representative was designated as such representative; “Minister” means the Minister for Health; “relevant powers”, in relation to a designated healthcare representative, means— (a) the power conferred on the representative under section 88
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(1)(a), and (b) the powers (if any) conferred on the representative in accordance with section 88
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(1)(b); “treatment”, in relation to a person, means an intervention that is or may be done for a therapeutic, preventative, diagnostic, palliative or other purpose related to the physical or mental health of the person, and includes life-sustaining treatment; “valid”, in relation to an advance healthcare directive, shall be construed in accordance with section 85 ; “writing” includes voice and video recording and speech recognition technologies.
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Purpose of this Part 83. (1) The purpose of this Part is to— (a) enable persons to be treated according to their will and preferences, and (b) provide healthcare professionals with information about persons in relation to their treatment choices.
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(2)A relevant person who has attained the age of 18 years and who has capacity is entitled to refuse treatment for any reason (including a reason based on his or her religious beliefs) notwithstanding that the refusal— (a) appears to be an unwise decision, (b) appears not to be based on sound medical principles, or (c) may result in his or her death.
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Making of advance healthcare directives, etc.
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84.(1) A person who has attained the age of 18 years and who has capacity may make an advance healthcare directive.
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(2)A refusal of treatment set out in an advance healthcare directive shall be complied with if the following 3 conditions are met: (a) at the time in question the directive-maker lacks capacity to give consent to the treatment; (b) the treatment to be refused is clearly identified in the directive; (c) the circumstances in which the refusal of treatment is intended to apply are clearly identified in the directive.
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(3)(a) A request for a specific treatment set out in an advance healthcare directive is not legally binding but shall be taken into consideration during any decision-making process which relates to treatment for the directive-maker if that specific treatment is relevant to the medical condition for which the directive-maker may require treatment. (b) Where a request for a specific treatment set out in an advance healthcare directive is not complied with in a decision-making process referred to in paragraph (a), the healthcare professional concerned, involved in that decision-making process, shall— (i) record the reasons for not complying with the request in the directive- maker’s healthcare record, and (ii) give a copy of those reasons as so recorded to the person’s designated healthcare representative (if any) as soon as is practicable after they have been recorded but, in any case, not later than 7 working days after they have been recorded.
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(4)An advance healthcare directive shall be in writing.
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(5)(a) An advance healthcare directive shall contain the following: (i) the name, date of birth and contact details of the directive-maker; (ii) subject to paragraph (b), the signature of the directive-maker, and the date that the directive-maker signed the directive; (iii) the name, date of birth and contact details of the designated healthcare representative (if any); (iv) the signature of the designated healthcare representative (if any) and the date that the representative signed the directive; (v) the signatures of the 2 witnesses referred to in subsection (6)(a). (b) An advance healthcare directive may be signed on behalf of the directive-maker by a person who has attained the age of 18 years and who is not one of the witnesses referred to in subsection (6)(a) if— (i) the directive-maker is unable to sign the directive, (ii) the directive-maker is present and directs that the directive be signed on his or her behalf by that person, and (iii) the signature of the person is witnessed in accordance with subsection (6)(b).
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(6)(a) The directive-maker, or the person signing on his or her behalf in accordance with subsection (5), and the designated healthcare representative (if any) shall sign the advance healthcare directive in the presence of each other (where applicable) and in the presence of 2 witnesses— (i) each of whom has attained the age of 18 years, and (ii) of whom at least one is not an immediate family member of the directive-maker. (b) Each of the witnesses referred to in paragraph (a) shall witness the signature of the directive-maker or the person signing on his or her behalf and the signature of the designated healthcare representative (if any) by applying his or her own signature to the advance healthcare directive.
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(7)(a) A directive-maker who has capacity may revoke his or her advance healthcare directive in writing. (b) Subject to paragraph (c), a directive-maker who has capacity may, in writing, alter his or her advance healthcare directive. (c) An alteration referred to in paragraph (b) of an advance healthcare directive is of no effect unless it is signed and witnessed in accordance with subsections (5) and (6) as if the alteration itself were an advance healthcare directive.
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(8)An advance healthcare directive made outside the State but which substantially complies with the requirements of this Part applicable to an advance healthcare directive shall have the same force and effect in the State as if it were made in the State.
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(9)The Minister may, for the guidance of persons wishing to make advance healthcare directives, specify forms of such directives, not inconsistent with this Part, that such persons may use or adapt in making their respective advance healthcare directives.
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(10)The Minister’s power under subsection (9) may be exercised in such a way as to specify forms of advance healthcare directives to provide for particular circumstances or particular cases, as the Minister thinks appropriate.
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(11)The Minister may publish any forms of advance healthcare directives that he or she has specified under subsection (9) in such manner that he or she thinks appropriate, including by the use of a website on the internet.
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(12)The Minister may make regulations as respects advance healthcare directives, including regulations relating to— (a) requiring the directive-maker to give notice of the making of an advance healthcare directive— (i) to the Director, and (ii) to other specified persons, and whether or not by reference to persons who, under this Act, are required to be notified of an application made under this Act, and (b) requiring the Director to establish and maintain a register of advance healthcare directives so notified to him or her.
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(13)In this section, “immediate family member” means— (a) a spouse, civil partner, or cohabitant, (b) a child, son-in-law or daughter-in-law, (c) a parent, step-parent, mother-in-law or father-in-law, (d) a brother, sister, step-brother, step-sister, brother-in-law or sister-in-law, (e) a grandparent or grandchild, (f) an aunt or uncle, or (g) a nephew or niece.
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Validity and applicability of advance healthcare directive 85. (1) An advance healthcare directive is not valid if the directive-maker— (a) did not make the directive voluntarily, or (b) while he or she had capacity to do so, has done anything clearly inconsistent with the relevant decisions outlined in the directive.
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(2)An advance healthcare directive is not applicable if— (a) at the time in question the directive-maker still has capacity to give or refuse consent to the treatment in question, (b) the treatment in question is not materially the same as the specific treatment set out in the directive that is requested or refused, or (c) at the time in question the circumstances set out in the directive as to when the specific treatment is to be requested or refused, as the case may be, are absent or not materially the same.
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(3)An advance healthcare directive is not applicable to life-sustaining treatment unless this is substantiated by a statement in the directive by the directive-maker to the effect that the directive is to apply to that treatment even if his or her life is at risk.
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(4)(a) An advance healthcare directive is not applicable to the administration of basic care to the directive-maker. (b) In paragraph (a) “basic care” includes (but is not limited to) warmth, shelter, oral nutrition, oral hydration and hygiene measures but does not include artificial nutrition or artificial hydration.
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(5)Where an ambiguity arises as to the validity or applicability of an advance healthcare directive— (a) the healthcare professional concerned shall, in an effort to resolve the ambiguity — (i) consult with the directive-maker’s designated healthcare representative (if any) or, if there is no designated healthcare representative, the directive-maker’s family and friends, and (ii) seek the opinion of a second healthcare professional, and (b) if, after the healthcare professional has complied with paragraph (a), the ambiguity still has not been resolved, the healthcare professional shall resolve the ambiguity in favour of the preservation of the directive-maker’s life.
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(6)(a) Where a directive-maker lacks capacity and is pregnant, but her advance healthcare directive does not specifically state whether or not she intended a specific refusal of treatment set out in the directive to apply if she were pregnant, and it is considered by the healthcare professional concerned that complying with the refusal of treatment would have a deleterious effect on the unborn, there shall be a presumption that treatment shall be provided or continued. (b) Where a directive-maker lacks capacity and is pregnant and her advance healthcare directive sets out a specific refusal of treatment that is to apply even if she were pregnant, and it is considered by the healthcare professional concerned that the refusal of treatment would have a deleterious effect on the unborn, an application shall be made to the High Court to determine whether or not the refusal of treatment should apply. (c) In determining an application under paragraph (b), the High Court shall have regard to the following: (i) the potential impact of the refusal of treatment on the unborn; (ii) if the treatment that is refused were given to the directive-maker, the invasiveness and duration of the treatment and the risk of harm to the directive-maker; (iii) any other matter which the High Court considers relevant to the application.
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(7)(a) Subject to subsections (1) to (6) and paragraph (b), an advance healthcare directive shall be complied with unless, at the time when it is proposed to treat the directive-maker, his or her treatment is regulated by Part 4 of the Mental Health Act 2001 or he or she is the subject of a conditional discharge order under section 13A (inserted by section 8 of the Criminal Law (Insanity) Act 2010 ) of the Criminal Law (Insanity) Act 2006 . (b) Notwithstanding paragraph (a), where a refusal of treatment set out in an advance healthcare directive by a directive-maker relates to the treatment of a physical illness not related to the amelioration of a mental disorder of the directive-maker, the refusal shall be complied with.
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Effect of advance healthcare directive 86. (1) A specific refusal of treatment set out in an advance healthcare directive is as effective as if made contemporaneously by the directive-maker when he or she had capacity to make that decision.
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(2)(a) Nothing in this Part shall be construed as imposing any civil or criminal liability on a healthcare professional who has complied, or purportedly complied, with a refusal of treatment set out in an advance healthcare directive and who, at the time in question, had reasonable grounds to believe, and did believe, that the advance healthcare directive was valid and applicable. (b) Nothing in this Part shall be construed as imposing any civil or criminal liability on a healthcare professional who has not complied with a refusal of treatment set out in an advance healthcare directive and who, at the time in question, had reasonable grounds to believe, and did believe, that the advance healthcare directive was not valid or applicable, or both.
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(3)Nothing in this Part shall be construed as imposing any civil or criminal liability on a healthcare professional who has, at the time in question, not acted in compliance with a refusal of treatment set out in an advance healthcare directive if— (a) he or she had, at that time, no grounds to believe that the directive existed, or (b) he or she had, at that time, grounds to believe that the directive existed but— (i) had no immediate access to the directive or its contents, and (ii) the urgency of the medical condition of the directive-maker was such that the healthcare professional could not reasonably delay taking appropriate medical action until he or she did have such access.
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(4)Nothing in this Part shall be construed as affecting any civil or criminal liability of a person that might otherwise arise under the common law or an enactment (other than this Act) as a result of a failure to comply with a valid and applicable advance healthcare directive.
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(5)Nothing in this Part shall be taken to affect— (a) the law relating to murder or manslaughter, or (b) the operation of section 2 of the Criminal Law (Suicide) Act 1993 .
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Designated healthcare representative 87. (1) (a) Subject to subsection (2), a directive-maker may designate, in his or her advance healthcare directive, a named individual to exercise the relevant powers. (b) If the designated individual agrees to exercise the relevant powers, he or she shall sign the advance healthcare directive to confirm his or her willingness to do so in accordance with the known will and preferences of the directive-maker as determined by reference to the directive.
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(2)Subject to subsection (3), an individual shall not be eligible to be a designated healthcare representative if— (a) the individual has not attained the age of 18 years, (b) the individual has been convicted of an offence in relation to the person or property of the directive-maker or the person or property of a child of the directive-maker, (c) a safety or barring order has been made against the individual in relation to the directive-maker or a child of the directive-maker, (d) the individual is— (i) the owner or the registered provider of a designated centre or mental health facility in which the directive-maker resides, or (ii) a person residing with, or an employee or agent of, such owner or registered provider, unless the individual is a spouse, civil partner, cohabitant, parent, child or sibling of the directive-maker, or (e) the individual provides personal care or healthcare services to the directive-maker for compensation unless the individual is— (i) a spouse, civil partner, cohabitant, parent, child or sibling of the directive-maker, or (ii) the primary carer of the directive-maker.
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(3)Where, subsequent to the designation of an individual as a designated healthcare representative— (a) the individual is convicted of an offence in relation to the person or property of the directive-maker or the person or property of a child of the directive-maker, (b) a safety or barring order is made against the individual in relation to the directive- maker or a child of the directive-maker, (c) the individual becomes— (i) the owner or the registered provider of a designated centre or mental health facility in which the directive-maker resides, or (ii) a person residing with, or an employee or agent of, such owner or registered provider, unless the individual is a spouse, civil partner, cohabitant, parent, child or sibling of the directive-maker, (d) the individual provides personal care or healthcare services to the directive-maker for compensation where the individual is not— (i) a spouse, civil partner, cohabitant, parent, child or sibling of the directive- maker, or (ii) the primary carer of the directive-maker, or (e) the individual is unable, for whatever reason, to exercise the relevant powers, that individual shall not, from the date on which he or she falls within any of paragraphs (a) to (e), be permitted to exercise relevant powers.
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(4)A designated healthcare representative acts as the agent of the directive-maker when he or she exercises the relevant powers.
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(5)Unless otherwise provided in the advance healthcare directive, a designated healthcare representative shall not, with effect from the date on which an event specified in any of paragraphs (a) to (c) occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, be permitted to exercise relevant powers where the representative is the spouse of the directive-maker and— (a) the marriage is annulled or dissolved either— (i) under the law of the State, or (ii) under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State, (b) either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect, (c) a written agreement to separate is entered into between the spouses, or (d) subject to section 2
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(2), the spouses separate and cease to cohabit for a continuous period of 12 months.
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(6)Unless otherwise provided in the advance healthcare directive, a designated healthcare representative shall not, with effect from the date on which an event specified in paragraphs (a) or (b) occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, be permitted to exercise relevant powers where the representative is the civil partner of the directive-maker and— (a) the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either— (i) under the law of the State, or (ii) under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State, (b) a written agreement to separate is entered into between the civil partners, or (c) subject to section 2
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(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.
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(7)Subject to section 2
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(2)and unless otherwise provided in the advance healthcare directive, a designated healthcare representative shall not, with effect from the expiry of the period referred to in this subsection, be permitted to exercise relevant powers where the representative is the cohabitant of the directive-maker and the cohabitants separate and cease to cohabit for a continuous period of 12 months.
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Functions and scope of authority of designated healthcare representatives 88. (1) (a) A designated healthcare representative has, by virtue of this paragraph, the power to ensure that the terms of the advance healthcare directive are complied with. (b) A directive-maker may, in his or her advance healthcare directive, confer on his or her designated healthcare representative one or both of the following powers: (i) the power to advise and interpret what the directive-maker’s will and preferences are regarding treatment as determined by the representative by reference to the relevant advance healthcare directive; (ii) the power to consent to or refuse treatment, up to and including life-sustaining treatment, based on the known will and preferences of the directive-maker as determined by the representative by reference to the relevant advance healthcare directive.
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(2)Nothing in this Part shall be construed as imposing any civil or criminal liability on a designated healthcare representative who, in exercising his or her relevant powers, acted in good faith and in accordance with what, at the time in question, he or she reasonably believed to be the will and preferences of the relevant directive-maker by reference to the relevant advance healthcare directive.
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(3)A designated healthcare representative shall— (a) as soon as is practicable after making a relevant decision but, in any case, not later than 7 working days after making the decision, make and keep a record in writing of the decision, and (b) produce that record for inspection at the request of— (i) the directive-maker if he or she has regained capacity, or (ii) the Director.
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(4)(a) The Director shall receive and consider complaints and allegations in relation to the way in which a designated healthcare representative is exercising his or her relevant powers. (b) The Director shall review any complaint referred to in paragraph (a) and, if satisfied that the complaint has substance, shall conduct an investigation into the matter. (c) The Director may, following the completion of an investigation under paragraph (b), decide to, as appropriate— (i) take no further action, or (ii) make an application to the court.
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(5)The court may determine an application under subsection (4)(c) by— (a) if it is satisfied that the designated healthcare representative has behaved, is behaving or is proposing to behave in a manner outside the scope of his or her relevant powers, making an order prohibiting the representative from exercising those powers with effect from the date, or the occurrence of the event, specified in the order for the purpose, or (b) if it is not so satisfied, declining to make any such order.
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(6)(a) A designated healthcare representative may only exercise the relevant powers when and for so long as the directive-maker lacks capacity. (b) A designated healthcare representative shall not delegate any of the relevant powers and, accordingly, any instrument purporting to effect such a delegation is void.
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(7)A directive-maker may designate, in his or her advance healthcare directive, a named individual to be the directive-maker’s alternate designated healthcare representative if the original designated healthcare representative dies, or is unable, for whatever reason, to exercise the relevant powers, provided that the named individual is eligible to act as such under section 87 at the time concerned, and, accordingly, the other provisions of this Part shall, with all necessary modifications, be construed to take account of any such advance healthcare directive.
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Role of courts 89. (1) On an application (being an application that does not involve considerations relating to life-sustaining treatment) made to it by any interested party, the court may make a declaration as to whether— (a) an advance healthcare directive is valid, (b) an advance healthcare directive is applicable, or (c) a designated healthcare representative is acting in accordance with the relevant powers.
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(2)On an application (being an application that involves considerations relating to life-sustaining treatment) made to it by any interested party, the High Court may make a declaration as to whether— (a) an advance healthcare directive is valid, (b) an advance healthcare directive is applicable, or (c) a designated healthcare representative is acting in accordance with the relevant powers.
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(3)Whilst awaiting a decision of the High Court relating to an application under subsection (2), nothing in the advance healthcare directive concerned shall be construed to prevent a person from— (a) providing life-sustaining treatment to the directive-maker, or (b) doing any act which he or she reasonably believes to be necessary to prevent— (i) a serious deterioration in the health of the directive-maker, or (ii) if the directive-maker is a pregnant woman, a deleterious effect on the unborn.
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Offences in relation to advance healthcare directives 90. (1) A person who uses fraud, coercion or undue influence to force another person to make, alter or revoke an advance healthcare directive commits an offence and shall be liable— (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or (b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.
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(2)A person who knowingly creates, falsifies or alters, or purports to revoke, an advance healthcare directive on behalf of another person without that other person’s consent in writing when the other person has the capacity to do so commits an offence and shall be liable— (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or (b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.
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(3)The reference in subsection (1) to coercion or undue influence includes any case where a person’s access to, or continued stay in, a designated centre or mental health facility is contingent (whether in whole or in part) on the person having to, or being led to believe that he or she has to, make, alter or revoke an advance healthcare directive.
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Codes of practice 91. (1) In this section— “body concerned”, in relation to a person concerned, means the body responsible for hearing complaints about failures to maintain professional standards in respect of the profession practised by the person concerned; “code of practice” includes part of a code of practice and, in relation to a code of practice published under subsection (3), means such code as is in force from time to time under this section; “person concerned”, in relation to a code of practice, means a person for whom the code is providing guidance; “working group” means the working group established under subsection (2).
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(2)The Minister shall establish a multidisciplinary working group of suitable persons willing and able to make recommendations to the Director in relation to codes of practice.
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(3)The Director may prepare and publish a code of practice, based (whether in whole or in part) on recommendations made to him or her by the working group as to the contents of the code, for the purposes of the guidance of designated healthcare representatives or healthcare professionals, or both, or with respect to such other matters concerned with this Part as the Director thinks appropriate.
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(4)The Director shall, before publishing a code of practice pursuant to his or her power under subsection (3) — (a) make available, to the persons whom the Director considers appropriate having regard to the matters to which the code relates, in such manner as the Director considers appropriate, a draft of the code, (b) invite the persons to whom he or she has made the draft available to make representations in writing on it to the Director within a period determined by the Director, being a period of not less than 30 days from the date of making the draft available to those persons, (c) consider, jointly with the working group, the representations (if any) received, and (d) make, after consultation with the working group, any modifications that he or she considers appropriate to the draft.
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(5)The Director shall not publish a code of practice under subsection (3) except with the consent of the Minister.
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(6)Where the Director publishes a code of practice under subsection (3), he or she shall cause a notice to that effect to be published in Iris Oifigiúil and such notice shall specify— (a) the persons or classes of persons for whom the code is providing guidance, (b) the date from which the code has effect, and (c) the place where a copy of the code may be viewed, inspected or purchased.
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(7)The Director shall publish, on the website on the internet or by the other electronic means referred to in section 95
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(1)(j), a copy of each code of practice published under subsection (3), as each such code is in force from time to time, on and from the date on which each such code has effect.
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(8)The Director shall arrange for that part of the website on the internet or other electronic means referred to in section 95
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(1)(j), which contains a code of practice pursuant to subsection (7) to ordinarily be accessible by members of the public.
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(9)Subject to subsection (10), the Director may, after consultation with the working group, amend or revoke a code of practice published under subsection (3).
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(10)Subsections (4) and (5) shall, with all necessary modifications, apply to a code of practice that the Director proposes to amend or revoke under subsection (9) as subsections (4) and (5) apply to a code of practice that the Director proposes to publish under subsection (3).
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(11)Where the Director amends or revokes a code of practice published under subsection (3), the Director shall cause a notice to that effect to be published in Iris Oifigiúil specifying— (a) the code to which the amendment or revocation, as the case may be, relates and, if applicable, particulars of the amendment, (b) the persons or classes of persons in respect of whom the code is so amended or revoked, as the case may be, and (c) the date from which the amendment or revocation, as the case may be, shall have effect.
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(12)A document bearing the seal of the Mental Health Commission and purporting to be a code of practice published under subsection (3) or, where such a code has been amended under this section, the code as so amended, shall be admissible in any legal proceedings.
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(13)A person concerned shall have regard to a code of practice published under subsection (3) when performing any function under this Act in respect of which the code provides guidance.
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(14)Where it appears to a court, tribunal, or body concerned, conducting any proceedings that— (a) a provision of a code of practice published under subsection (3), or (b) a failure to comply with a code of practice published under subsection (3), is relevant to a question arising in the proceedings, the provision or failure, as the case may be, shall be taken into account in deciding the question.
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Persons who may make applications to relevant court under this Part, etc.
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92.(1) An application to the relevant court under this Part (other than an application by the directive-maker concerned) shall be made on notice to— (a) the directive-maker, (b) the persons referred to in paragraphs (c) to (i) of subsection (3) (other than any such person who is the applicant), and (c) such other persons as may be specified in rules of court.
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(2)Subject to subsection (3), an application to the relevant court under this Part shall not be made unless the person making the application has received the consent of the court to the making of the application, which consent may be sought by way of an ex parte application.
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(3)Subsection (2) shall not apply to an application to the relevant court under this Part made by— (a) the directive-maker, (b) the Director, (c) a spouse or civil partner of the directive-maker, (d) the cohabitant of the directive-maker, (e) a decision-making assistant for the directive-maker, (f) a co-decision-maker for the directive-maker, (g) a decision-making representative for the directive-maker, (h) an attorney for the directive-maker, (i) a designated healthcare representative for the directive-maker, or (j) a person specified for that purpose in an existing order of the court under this Part where the application relates to that order.
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(4)An application to the relevant court under this Part (including an ex parte application under subsection (2) ) shall state— (a) the applicant’s connection with the directive-maker, (b) the benefit to the directive-maker sought to be achieved by the application, and (c) the reasons why the application is being made, in particular— (i) the reason why the benefit to the directive-maker sought to be achieved has failed to be achieved in any other appropriate and practicable manner taken prior to the making of the application, and (ii) the reason why, in the opinion of the applicant, no other appropriate and practicable manner to achieve that benefit remains to be taken prior to the making of the application.
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(5)In every application to the relevant court under this Part, the applicant shall inform the court of the existence of— (a) any decision-making assistance agreement, co-decision-making agreement, power of attorney (whether an enduring power or otherwise and whether or not the power is registered) or advance healthcare directive created by the directive-maker, and (b) any decision-making order or decision-making representation order in respect of the directive-maker, which, to the applicant’s knowledge, still has any force or effect.
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(6)Rules of court shall make provision— (a) as to the manner and form in which proceedings under this Part are to be commenced, (b) as to the persons entitled to be notified of, and be made parties to, such proceedings, and (c) as to what may be received as evidence in such proceedings and the manner in which it is to be presented.
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(7)Hearings of applications under this Part shall— (a) be conducted with the least amount of formality consistent with the proper administration of justice, and (b) be heard and determined otherwise than in public.
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(8)In this section “relevant court” means the court or the High Court, as appropriate.
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Review of this Part 93. The Minister shall cause a review of the functioning of this Part to be carried out before the fifth anniversary of the date of commencement of this Part.
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PART 9
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Director of the Decision Support Service
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Chapter 1
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Appointment, functions and terms and conditions of Director Appointment of Director 94. (1) The Mental Health Commission shall appoint a person to be known as the Director of the Decision Support Service to perform the functions conferred on the Director by this Act.
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(2)The Director shall— (a) be appointed by the Mental Health Commission on the recommendation of the Public Appointments Service after a competition for that purpose under section 47 of the Public Service Management (Recruitment and Appointments) Act 2004 has been held, and (b) have the appropriate experience, qualifications, training and expertise to enable him or her to efficiently and effectively perform the functions conferred on him or her.
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(3)A person is not eligible for appointment as the Director if he or she— (a) is a member of either House of the Oireachtas, (b) is entitled under the rules of procedure of the European Parliament to sit in that Parliament, or (c) is a member of a local authority within the meaning of the Local Government Act 2001 .
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Functions of Director 95. (1) The Director shall have, in addition to the functions assigned to him or her by any other provision of this Act, the following functions: (a) to promote public awareness of this Act and matters (including the United Nations Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006) relating to the exercise of their capacity by persons who require or may shortly require assistance in exercising their capacity; (b) to promote public confidence in the process of dealing with matters which affect persons who require or may shortly require assistance in exercising their capacity; (c) to provide information to relevant persons in relation to their options under this Act for exercising their capacity; (d) to provide information to decision-making assistants, co-decision-makers, decision-making representatives, designated healthcare representatives and attorneys in relation to the performance of their functions under this Act; (e) to supervise, in accordance with the provisions of this Act, compliance by decision-making assistants, co-decision-makers, decision-making representatives and attorneys in the performance of their functions under this Act; (f) to provide information in relation to the management of property and financial affairs to relevant persons and to decision-making assistants, co-decision-makers, decision-making representatives and attorneys; (g) to provide information and guidance to organisations and bodies in the State in relation to their interaction with relevant persons; (h) to provide information and guidance to organisations and bodies in the State in relation to their interaction with decision-making assistants, co-decision-makers, decision-making representatives, attorneys and designated healthcare representatives; (i) to identify and make recommendations for change of practices in organisations and bodies in which the practices may prevent a relevant person from exercising his or her capacity under this Act; (j) to establish a website on the internet or provide, or arrange for the provision of, other electronic means by which to disseminate information to members of the public relevant to the performance of the Director’s functions and which will, in the opinion of the Director, assist members of the public to understand the operation of this Act and the Director’s role in relation thereto; (k) to make recommendations to the Minister on any matter relating to the operation of this Act.
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(2)The Director shall have all such powers as are necessary or expedient for, or incidental to, the performance of his or her functions.
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(3)The Director, with the consent of the Minister, may, and if directed by the Minister to do so and in accordance with the terms of the direction, shall prescribe by regulations the fees to be paid to him or her and when they fall due in respect of— (a) the performance of functions, (b) the provision of services, and (c) the provision of information and guidance, by him or her under the Act.
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(4)Without prejudice to the generality of subsection (3), the Director’s power under that subsection to prescribe fees includes the power to provide for exemptions from the payment of fees, in different circumstances or classes of circumstances or in different cases or classes of cases.
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(5)In carrying out his or her functions, the Director may consult with any person who has any functions in relation to the care or treatment of a relevant person.
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Investigations by Director 96. (1) The Director may investigate, either on his or her own initiative or in response to a complaint made to him or her by any person, complaints in relation to any action of a decision-making assistant, co-decision-maker, decision-making representative, designated healthcare representative or attorney for a relevant person which may involve a breach of his or her functions as decision-making assistant, co-decision-maker, decision-making representative, designated healthcare representative or attorney, as the case may be, or a breach of a provision of this Act.
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(2)The Director may, to enable him or her to perform his or her functions under subsection (1) — (a) summon witnesses to attend before him or her, (b) examine on oath the witnesses attending before him or her, (c) require any such witness to produce to him or her any document in the power or control of the witness, (d) by notice in writing, require any person to provide him or her with such written information as the Director considers necessary to enable him or her to carry out his or her functions.
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(3)The Director may investigate a complaint even though the person making the complaint may be entitled to bring proceedings in any court with respect to the matter complained of.
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(4)The Director may seek resolution of complaints in such manner (including by any informal means) as the Director considers appropriate and reasonable.
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(5)The Director shall draw up procedures in relation to the making and investigation of complaints as he or she considers appropriate and shall cause the procedures to be published.
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(6)An investigation by the Director under this Act shall be conducted otherwise than in public.
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(7)A person who— (a) fails to comply with a requirement under this section, (b) hinders or obstructs— (i) the Director in the performance of his or her functions, or (ii) one or more of the Director’s staff duly authorised to act on behalf of the Director, shall be guilty of an offence and shall be liable on summary conviction to a class A fine.
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Terms and conditions of Director 97. (1) Subject to subsection (2), the Director shall hold office for a term of 6 years and may be re-appointed for a second or subsequent term.
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(2)The Director shall hold office on such terms and conditions as may be determined by the Mental Health Commission, with the consent of the Minister for Health given after consultation with the Minister for Public Expenditure and Reform, at the time of appointment or re-appointment.
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(3)A person appointed to be Director shall be a member of the staff of the Mental Health Commission.
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Chapter 2
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Staff of Director of the Decision Support Service Staff of Director of the Decision Support Service 98. (1) A person who is a member of the staff of the Director shall be a member of the staff of the Mental Health Commission and the provisions of Part 3 of the Act of 2001 shall apply to such staff.
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(2)The Director may delegate any of his or her functions to a specified member of the staff of the Mental Health Commission assigned for the time being to the Director (other than the power to delegate under this subsection and the functions specified in section 103 ), and, accordingly, references in this Act to the Director shall be construed, where appropriate having regard to any delegation made under this subsection, as including, as respects the matters so delegated, references to any person to whom such functions stand delegated.
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(3)The Director may revoke a delegation made pursuant to subsection (2).
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(4)The Mental Health Commission shall appoint such number of persons to be members of the staff of the Director as may be approved by the Minister for Health with the consent of the Minister for Public Expenditure and Reform.
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(5)The numbers and grades of staff to be appointed under this section and the conditions (including those relating to remuneration and allowances) of their appointment shall be determined by the Mental Health Commission with the approval of the Minister for Health given with the consent of the Minister for Public Expenditure and Reform.
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(6)The Mental Health Commission may, from time to time, engage such specialist advisers as the Director may consider necessary to assist him or her in the discharge of his or her functions under this Act.
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(7)Any fees due to an adviser engaged under subsection (6) shall be subject to the prior agreement of the Minister for Health, given with the consent of the Minister for Public Expenditure and Reform, and shall form part of the expenses of the Mental Health Commission.
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Chapter 3
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Special visitors, general visitors, court friends and panels Special visitors and general visitors 99. (1) The Director may, in accordance with this section, appoint a person to be a special visitor or general visitor.
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(2)A special visitor— (a) is a registered medical practitioner who has particular knowledge, expertise and experience as respects the capacity of persons, or (b) is a person who, although not a registered medical practitioner, is, in the opinion of the Director, a person who has particular knowledge, expertise and experience as respects the capacity of persons.
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(3)A general visitor is a person who, in the opinion of the Director, is a person who possesses relevant qualifications, or has other relevant expertise or experience, to assist the Director in performing his or her supervisory function referred to in section 95
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(1)(e).
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(4)An appointment of a person as a special visitor or general visitor shall be made subject to such terms and conditions (including those relating to remuneration and allowances) as the Minister for Health, with the consent of the Minister for Public Expenditure and Reform, may determine.
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(5)The Director may direct a special visitor or general visitor to visit— (a) a decision-making assistant, co-decision-maker, decision-making representative, designated healthcare representative or attorney for a relevant person, or (b) a relevant person for whom there is a decision-making assistant, co-decision-maker, decision-making representative, designated healthcare representative or attorney, or in respect of whom an order has been made under section 48 , and, subsequent to the visit, to submit to the Director a report on such matters concerning the person visited as the Director may specify in the direction.
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(6)Subject to subsections (7) and (8), for the purposes of enabling the Director to perform his or her functions, he or she may direct a special visitor or general visitor to— (a) at any reasonable time, examine and take copies of any health, personal welfare or financial record held in relation to a relevant person by any person, body or organisation, and (b) interview a relevant person in private or otherwise than in public.
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(7)Subsection (6) shall not entitle the Director to direct a general visitor to examine and take copies of any health record of a relevant person unless the general visitor is a registered medical practitioner.
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(8)Prior to taking an action pursuant to paragraph (a) of subsection (6), the special visitor or general visitor, as the case may be, shall seek the consent of the relevant person to the taking of such action, unless the Director dispenses with this requirement where— (a) there has been a declaration under section 37
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(1)(b) in respect of the person, or (b) an enduring power of attorney has been registered in respect of the person.
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(9)A special visitor or general visitor shall not— (a) attempt to obtain information that is not reasonably required for the purposes referred to in subsection (6), or (b) use such information for a purpose that is not in accordance with this section.
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(10)A special visitor or general visitor shall take reasonable steps to ensure that any information obtained pursuant to this section is— (a) kept secure from unauthorised access, use or disclosure, and (b) safely disposed of when he or she believes it is no longer required.
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(11)The Director shall, on an annual basis, carry out checks to ascertain if special visitors and general visitors are complying with subsections (9) and (10).
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Court friends 100. (1) The Director may or, where section 36
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(9)applies, shall, in accordance with this section, appoint a person to be a court friend for a relevant person.
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(2)(a) A court friend for a relevant person is a person who assists the relevant person in relation to an application under Part 5 in respect of which the relevant person is the subject. (b) The court, on the hearing of such application, may hear submissions from the court friend on behalf of the relevant person.
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(3)Subject to subsections (4) and (5), for the purposes of assisting a relevant person in relation to an application under Part 5, a court friend may— (a) at any reasonable time, examine and take copies of any health, personal welfare or financial record held in respect of the relevant person by any person, body or organisation, and (b) interview the relevant person in private or otherwise than in public.
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(4)Subsection (3) shall not entitle a court friend to examine and take copies of any health record of a relevant person unless the court friend is a registered medical practitioner.
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(5)Prior to taking an action pursuant to paragraph (a) of subsection (3), the court friend shall seek the consent of the relevant person to the taking of such action, unless the Director dispenses with this requirement where— (a) there has been a declaration under section 37
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(1)(b) in respect of the person, or (b) an enduring power of attorney has been registered in respect of the person.
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(6)A court friend shall not— (a) attempt to obtain information that is not reasonably required for the purposes referred to in subsection (3), or (b) use such information for a purpose other than provided for in that subsection.
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(7)A court friend shall take reasonable steps to ensure that any information obtained pursuant to this section is— (a) kept secure from unauthorised access, use or disclosure, and (b) safely disposed of when he or she believes it is no longer required.
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(8)The Director shall, on an annual basis, carry out checks to ascertain if court friends are complying with subsections (6) and (7).
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(9)A court friend for a relevant person shall assist and attend with the relevant person in court or, if the relevant person is not attending the hearing concerned, promote the interests and the will and preferences of the relevant person in court.
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(10)A court friend for a relevant person may attend and represent the relevant person at any meeting, consultation or discussion, in connection with an application under Part 5 in respect of which the relevant person is the subject, at which the interests or the will and preferences of the relevant person are being considered, whether or not the relevant person is attending the meeting, consultation or discussion, as the case may be.
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(11)A court friend for a relevant person may be appointed for such term and subject to such conditions, and may be paid such remuneration and allowances, as the Minister, with the consent of the Minister for Public Expenditure and Reform, may determine.
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(12)Subsections (2) to (10) shall, with all necessary modifications, apply to a person who falls within paragraph (b) of section 36(8) in respect of a relevant person and to the application under Part 5 which relates to the relevant person as those subsections apply to a court friend for a relevant person and to the application under Part 5 which relates to the second-mentioned relevant person.
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Panels to be established by the Director 101. The Director shall establish a panel of suitable persons willing and able to act as— (a) decision-making representatives for relevant persons in the circumstances to which section 38
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(7)applies, (b) special visitors, (c) general visitors, and (d) court friends.
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Chapter 4
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Reports by Director and codes of practice Reports by Director