Assisted Decision-Making (Capacity) (Amendment) Act 2022

Assisted Decision-Making (Capacity) (Amendment) Act 2022 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2022 Assisted Decision-Making (Capacity) (Amendment) Act 2022 Assisted Decision-Making (Capacity) (Amendment) Act 2022 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Print Full ActPriontáil an tAcht Iomlán Number 46 of 2022 ASSISTED DECISION-MAKING (CAPACITY) (AMENDMENT) ACT 2022 CONTENTS PART 1 Preliminary and General Section 1. Short title, collective citation, construction and commencement 2. Definitions 3. Repeals PART 2 Amendment of Principal Act 4. Amendment of section 2 of Principal Act 5. Amendment of section 4 of Principal Act 6. Insertion of new section 4A into Principal Act 7. Amendment of section 8 of Principal Act 8. Amendment of section 9 of Principal Act 9. Amendment of section 10 of Principal Act 10. Amendment of section 11 of Principal Act 11. Amendment of section 13 of Principal Act 12. Amendment of section 14 of Principal Act 13. Amendment of section 15 of Principal Act 14. Insertion of new section 15A into Principal Act 15. Amendment of section 16 of Principal Act 16. Amendment of section 17 of Principal Act 17. Amendment of section 18 of Principal Act 18. Amendment of section 20 of Principal Act 19. Amendment of section 21 of Principal Act 20. Amendment of section 22 of Principal Act 21. Amendment of section 24 of Principal Act 22. Amendment of section 25 of Principal Act 23. Amendment of section 26 of Principal Act 24. Amendment of section 27 of Principal Act 25. Amendment of section 28 of Principal Act 26. Amendment of section 29 of Principal Act 27. Amendment of section 30 of Principal Act 28. Amendment of section 31 of Principal Act 29. Insertion of new section 31A into Principal Act 30. Amendment of section 36 of Principal Act 31. Amendment of section 38 of Principal Act 32. Amendment of section 39 of Principal Act 33. Amendment of section 40 of Principal Act 34. Amendment of section 41 of Principal Act 35. Amendment of section 42 of Principal Act 36. Amendment of section 43 of Principal Act 37. Amendment of section 44 of Principal Act 38. Amendment of section 45 of Principal Act 39. Amendment of section 46 of Principal Act 40. Amendment of section 47 of Principal Act 41. Amendment of section 50 of Principal Act 42. Amendment of section 52 of Principal Act 43. Amendment of section 54 of Principal Act 44. Insertion of new section 54A into Principal Act 45. Amendment of section 55 of Principal Act 46. Insertion of new section 55A into Principal Act 47. Amendment of section 56 of Principal Act 48. Insertion of new section 57A into Principal Act 49. Amendment of section 58 of Principal Act 50. Insertion of new sections 58A and 58B into Principal Act 51. Amendment of section 59 of Principal Act 52. Amendment of section 60 of Principal Act 53. Amendment of section 65 of Principal Act 54. Amendment of section 66 of Principal Act 55. Amendment of section 67 of Principal Act 56. Amendment of section 68 of Principal Act 57. Amendment of section 69 of Principal Act 58. Amendment of section 71 of Principal Act 59. Insertion of new sections 71A to 71D into Principal Act 60. Amendment of section 72 of Principal Act 61. Amendment of section 73 of Principal Act 62. Insertion of new section 73A into Principal Act 63. Amendment of section 74 of Principal Act 64. Amendment of section 75 of Principal Act 65. Amendment of section 76 of Principal Act 66. Amendment of section 77 of Principal Act 67. Amendment of section 78 of Principal Act 68. Amendment of section 79 of Principal Act 69. Insertion of new section 79A into Principal Act 70. Amendment of section 80 of Principal Act 71. Amendment of section 81 of Principal Act 72. Amendment of section 82 of Principal Act 73. Amendment of section 84 of Principal Act 74. Amendment of section 85 of Principal Act 75. Amendment of section 88 of Principal Act 76. Amendment of section 89 of Principal Act 77. Amendment of section 92 of Principal Act 78. Amendment of section 95 of Principal Act 79. Insertion of new sections 95A and 95B into Principal Act 80. Amendment of section 96 of Principal Act 81. Insertion of new sections 96A and 96B into Principal Act 82. Amendment of section 97 of Principal Act 83. Amendment of section 98 of Principal Act 84. Amendment of section 99 of Principal Act 85. Amendment of section 100 of Principal Act 86. Amendment of section 101 of Principal Act 87. Amendment of section 102 of Principal Act 88. Amendment of section 103 of Principal Act 89. Amendment of section 107 of Principal Act 90. Amendment of section 108 of Principal Act 91. Amendment of section 136 of Principal Act 92. Amendment of section 139 of Principal Act 93. Amendment of section 143 of Principal Act 94. Amendment of section 145 of Principal Act 95. Amendment of section 146 of Principal Act PART 3 Amendments to Other Enactments 96. Amendment of Juries Act 1976 97. Amendment of Electoral Act 1992 98. Provisions regarding Courts and Court Officers Act 1995 99. Provisions regarding Credit Union Act 1997 100. Provisions regarding National Disability Authority Act 1999 101. Amendment of Disability Act 2005 102. Amendment of Nursing Homes Support Scheme Act 2009 103. Amendment of Irish Human Rights and Equality Commission Act 2014 104. Amendment of section 42 of Freedom of Information Act 2014 Acts Referred to Adoptive Leave Acts 1995 and 2005 Assisted Decision-Making (Capacity) Act 2015 (No. 64) Carer’s Leave Act 2001 (No. 19) Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (No. 13) Civil Service Regulation Acts 1956 to 2005 Companies Act 2014 (No. 38) Courts and Court Officers Act 1995 (No. 31) Credit Union Act 1997 (No. 15) Credit Union Acts 1997 to 2020 Criminal Law (Insanity) Act 2006 (No. 11) Data Protection Act 2018 (No. 7) Data Sharing and Governance Act 2019 (No. 5) Disability Act 2005 (No. 14) Electoral Act 1992 (No. 23) Ethics in Public Office Acts 1995 and 2001 Freedom of Information Act 2014 (No. 30) Garda Síochána Act 2005 (No. 20) Irish Human Rights and Equality Commission Act 2014 (No. 25) Juries Act 1976 (No. 4) Lunacy Regulation (Ireland) Act 1871 (34 & 35 Vict., c. 22) Maternity Protection Acts 1994 and 2004 Mental Health Acts 2001 to 2018 Minimum Notice and Terms of Employment Acts 1973 to 2005 National Disability Authority Act 1999 (No. 14) Nursing Homes Support Scheme Act 2009 (No. 15) Organisation of Working Time Act 1997 (No. 20) Parent’s Leave and Benefit Act 2019 (No. 35) Parental Leave Acts 1998 to 2019 Paternity Leave and Benefit Act 2016 (No. 11) Powers of Attorney Act 1996 (No. 12) Protection of Employees (Fixed-Term Work) Act 2003 (No. 29) Protection of Employees (Part-Time Work) Act 2001 (No. 45) Public Service Management (Recruitment and Appointments) Act 2004 (No. 33) Redundancy Payments Acts 1967 to 2014 Succession Act 1965 (No. 27) Terms of Employment (Information) Acts 1994 to 2014 Unfair Dismissals Acts 1977 to 2015 Number 46 of 2022 ASSISTED DECISION-MAKING (CAPACITY) (AMENDMENT) ACT 2022 An Act to give further effect to the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; for that and other purposes to amend the Assisted Decision-Making (Capacity) Act 2015 ; to amend the Juries Act 1976 , the Electoral Act 1992 , the Courts and Court Officers Act 1995 , the Credit Union Act 1997 , the National Disability Authority Act 1999 , the Disability Act 2005 , the Nursing Homes Support Scheme Act 2009 , the Irish Human Rights and Equality Commission Act 2014 and the Freedom of Information Act 2014 ; and to provide for related matters. [17th December, 2022] Be it enacted by the Oireachtas as follows: PART 1 Preliminary and General Short title, collective citation, construction and commencement 1. (1) This Act may be cited as the Assisted Decision-Making (Capacity) (Amendment) Act 2022. (2) Section 99 and the Credit Union Acts 1997 to 2020 may be cited together as the Credit Union Acts 1997 to 2022 and shall be construed together as one. (3) Section 100 and the National Disability Authority Act 1999 may be cited together as the National Disability Authority Acts 1999 and 2022 and shall be construed together as one. (4) Section 74 and section 91 and the Mental Health Acts 2001 to 2018 may be cited together as the Mental Health Acts 2001 to 2022 and shall be construed together as one. (5) Subject to subsection (6), this Act shall come into operation on such day or days as the Minister, after consultation with the Minister for Health, may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions. (6) Sections 72 to 77 shall come into operation on such day or days as the Minister for Health, after consultation with the Minister, may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions. Definitions 2. In this Act, unless the context otherwise requires— “Minister” means the Minister for Children, Equality, Disability, Integration and Youth; “Principal Act” means the Assisted Decision-Making (Capacity) Act 2015 . Repeals 3. The following provisions of the Principal Act are repealed: (a) section 57; (b) section 61; (c) section 62; (d) section 70; (e) section 93; (f) section 144. PART 2 Amendment of Principal Act Amendment of section 2 of Principal Act 4. Section 2(1) of the Principal Act is amended— (a) in the definition of “intervener”, by the substitution of “(d), (da), (db)” for “(d)”, (b) in the definition of “intervention”— (i) in paragraph (d), by the substitution of “general visitor,” for “general visitor, or”, and (ii) by the insertion of the following paragraphs after paragraph (d): “(da) a court friend, or (db) a person to whom section 36(8)(b) applies,”, (c) by the substitution of the following for the definition of “Minister”: “‘Minister’, other than in Part 8, means the Minister for Children, Equality, Disability, Integration and Youth;”, (d) in the definition of “personal welfare”, by the insertion of the following paragraph after paragraph (e): “(ea) participation by the relevant person in healthcare research and social care research except in relation to clinical trials of medicinal products for human use or clinical investigations undertaken to assess the safety or performance of medical devices;”, (e) in paragraph (i) of the definition of “property and affairs”, by the substitution of “for the needs of other persons” for “of other persons”, and (f) by the insertion of the following definition: “‘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;”. Amendment of section 4 of Principal Act 5. Section 4 of the Principal Act is amended— (a) in subsection (1)— (i) by the substitution of “sections 37” for “sections 37, 85(6)(b)”, (ii) by the substitution of “in which the following persons are residing or carrying on business at the time the application or appeal concerned is made, or have resided at any time during the period of 3 years immediately prior to the making of the application or the lodging of the appeal concerned:” for “in which—”, and (iii) by the substitution of the following paragraphs for paragraphs (a) and (b): “(a) the relevant person (including a ward) the subject of an application under this Act; (b) in the case of proceedings under section 15, the decision-making assistant appointer, whose decision-making assistant or decision-making assistance agreement is the subject of an application or appeal under that section; (c) in the case of proceedings under Part 4, the co-decision-maker appointer, whose co-decision-maker or co-decision-making agreement is the subject of an application or appeal under that Part; (d) in the case of proceedings under section 46 or 47, the relevant person, whose decision-making representative is the subject of an application or appeal under the section concerned; (e) in the case of proceedings under Part 7— (i) the donor, whose attorney, enduring power of attorney or instrument creating an enduring power of attorney, or (ii) the donor under the Act of 1996, whose attorney under the Act of 1996, enduring power under the Act of 1996 or instrument creating an enduring power under the Act of 1996, is the subject of an application or appeal under that Part; (f) in the case of proceedings under section 88 or 89, the directive-maker, whose designated healthcare representative is the subject of an application under the section concerned; (g) in the case of proceedings under section 125 or 127, the adult the subject of the measure that is the subject of an application under the section concerned.”, and (b) by the insertion of the following subsection after subsection (4): “(5) Nothing in this Act shall affect the inherent jurisdiction of the High Court to make orders for the care, treatment or detention of persons who lack capacity.”. Insertion of new section 4A into Principal Act 6. The Principal Act is amended by the insertion of the following section after section 4: “Regulations 4A. (1) The Minister may make regulations for the purposes of this Act (other than Part 8) including regulations prescribing any matter or thing which is referred to in this Act (other than Part 8) as prescribed or to be prescribed or to be the subject of regulations made by him or her or for the purpose of enabling any provision of this Act (other than Part 8) to have full effect. (2) Regulations under this Act (other than Part 8) may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.”. Amendment of section 8 of Principal Act 7. Section 8(7)(d) of the Principal Act is amended— (a) in subparagraph (i), by the substitution of “matter,” for “matter, and”, (b) by the substitution of the following subparagraph for subparagraph (ii): “(ii) any decision-making assistant, co-decision-maker, decision-making representative, attorney or attorney under the Act of 1996 for the relevant person,”, and (c) by the insertion of the following subparagraphs after subparagraph (ii): “(iii) any court friend or person to whom section 36(8)(b) applies, where the intervention relates to proceedings under Part 5, and (iv) a designated healthcare representative within the meaning of Part 8 for the relevant person, where the intervention relates to treatment and an advance healthcare directive within the meaning of Part 8 is applicable,”. Amendment of section 9 of Principal Act 8. Section 9 of the Principal Act is amended— (a) in the definition of “decision-making assistant”, by the substitution of “section 10(4) and specifications made under section 10(4A)” for “section 10(4)”, and (b) in the definition of “decision-making assistant appointer”, by the substitution of “section 10(4) and specifications made under section 10(4A)” for “section 10(4)”. Amendment of section 10 of Principal Act 9. Section 10 of the Principal Act is amended— (a) in subsection (1), by the substitution of “subsection (4) and specifications made under subsection (4A)” for “subsection (4)”, (b) in subsection (2), by the substitution of “subsection (4) and specifications made under subsection (4A)” for “subsection (4)”, (c) by the substitution of the following subsection for subsection (4): “(4) The Minister shall make regulations as respects decision-making assistance agreements, including— (a) prescribing procedures and requirements relating to the execution, variation and revocation of a decision-making assistance agreement, (b) specifying the personal welfare or property and affairs, or both, which may be specified in a decision-making assistance agreement, (c) providing for the giving by the appointer of notice of the execution, variation or revocation of a decision-making assistance agreement— (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.”, (d) by the insertion of the following subsection after subsection (4): “(4A) The Director may, with the consent of the Minister, specify in writing the following: (a) the form of a decision-making assistance agreement; (b) the information to be included in or annexed to a decision-making assistance agreement for the purpose of ensuring that any document purporting to create a decision-making assistance agreement incorporates adequate information as to the effect of making or accepting the appointment; (c) that the following statements shall be included in a decision-making assistance agreement: (i) by the appointer, that he or she has read and understands the information as to the effect of making the appointment or that such information has been explained to the appointer, by a person other than the proposed decision-making assistant; (ii) by the decision-making assistant, that he or she understands and undertakes to act in accordance with the functions of a decision-making assistant, including the duty to act in accordance with the guiding principles; (d) the form of attestation of the signatures of the appointer and decision-making assistant by a person other than the appointer or the proposed decision-making assistant; (e) the forms to be used in connection with the execution, variation and revocation of a decision-making assistance agreement; and (f) the form of notice to be given by the appointer of the execution, variation or revocation of a decision-making assistance agreement.”. Amendment of section 11 of Principal Act 10. Section 11(1) of the Principal Act is amended— (a) in paragraph (a), by the substitution of “her, or the person or property of a child of that person” for “her”, (b) in paragraph (b), by the substitution of “her, or a child of that person” for “her”, and (c) in paragraph (g), by the substitution of “section 15A, 34,” for “section 34,”. Amendment of section 13 of Principal Act 11. Section 13(4) is amended— (a) in paragraph (g), by the substitution of “section 15A, 34,” for “section 34,”, and (b) in paragraph (h), by the substitution of the following subparagraph for subparagraph (iii): “(iii) has an enduring power of attorney that is the subject of a notification that has been accepted by the Director under section 71C, or an enduring power under the Act of 1996 that has been registered, in respect of himself or herself, or”. Amendment of section 14 of Principal Act 12. Section 14(1)(b) of the Principal Act is amended by the substitution of “assist” for “advise”. Amendment of section 15 of Principal Act 13. Section 15 of the Principal Act is amended— (a) in subsection (1)— (i) by the substitution of “one or more of” for “one or both of”, (ii) in paragraph (a)— (I) by the substitution of “the scope of, or in breach of,” for “the scope of”, and (II) by the substitution of “agreement, or in breach of this Act” for “agreement”, and (iii) in paragraph (c), by the substitution of “to enter into, or to vary or revoke, the decision-making assistance agreement” for “to enter into the co-decision-making agreement”, (b) by the insertion of the following subsections after subsection (1): “(1A) Following the receipt of a complaint under subsection (1) the Director shall carry out such review or investigation of the matter the subject of the complaint as he or she considers appropriate and shall, subject to subsection (1B), form a view as to whether or not the complaint is well founded not later than 3 months after the date of his or her receipt of the complaint (in this section referred to as the ‘initial investigation period’). (1B) The Director may, before the date of expiry of the initial investigation period, extend the duration of his or her investigation by a period of up to 6 months from that date by sending written notice to the complainant, the person who is the subject of the complaint and the relevant person concerned giving reasons for the extension.”, (c) in subsection (2)— (i) by the substitution of “The Director shall, as soon as is practicable after having formed a view under subsection (1A)” for “Following the receipt of a complaint under subsection (1), the Director shall carry out an investigation of the matter which is the subject of the complaint and”, (ii) in paragraph (a), by the substitution of “complaint,” for “complaint, or”, and (iii) by the insertion of the following paragraph after paragraph (a): “(aa) notwithstanding paragraph (a), where he or she is of the view that the complaint is well founded and that— (i) the provision of clarification by him or her to the decision-making assistant regarding the role of the decision-making assistant would be an appropriate resolution, or (ii) the subject matter of the complaint could be appropriately resolved under section 96(4), the Director may, not later than 3 months after having formed a view under subsection (1A), provide the clarification referred to in subparagraph (i), or proceed to resolve the complaint as soon as possible under section 96(4), as the case may be, and”, (d) in subsection (3), by the substitution of “3 months” for “21 days”, (e) in subsection (4), by the substitution of “investigation, to which this section shall, with any necessary modifications, apply” for “investigation and make an application to the court for a determination in relation to any matter specified in subsection (1)”, (f) by the insertion of the following subsections after subsection (4): “(4A) Where subsection (2)(aa) applies and the Director has provided the clarification referred to in subparagraph (i) of that subsection or has resolved the complaint under section 96(4) as referred to in subparagraph (ii) of that subsection, the Director may— (a) request further information regarding the outcome of the clarification or resolution, as the case may be, or (b) request confirmation that the complaint has been resolved, from the complainant, the person who is the subject of the complaint or the relevant person, as the Director considers appropriate. (4B) If the Director is not satisfied, following the receipt of the information or confirmation referred to in subsection (4A), that the clarification or resolution referred to in that subsection has satisfactorily resolved the complaint, the Director may make an application to the court in accordance with subsection (2)(a) or may take such other steps as he or she considers appropriate in order to resolve the complaint.”, (g) in subsection (5)— (i) in paragraph (a), by the deletion of “or (4) ”, and (ii) in paragraph (b), by the substitution of “subsection (3) or (7)(b)” for “subsection (3)”, and (h) by the insertion of the following subsections after subsection (5): “(6) The Director shall, in accordance with this section, investigate a complaint under subsection (1) unless in his or her opinion there has been undue delay in making the complaint. (7) A decision by the Director under subsection (6) not to investigate a complaint— (a) shall be in writing, shall contain the reasons for the decision and shall be sent to the complainant as soon as possible after it is made, and (b) may be appealed by the complainant to the court not later than 3 months after the date of receipt by the complainant of the decision.”. Insertion of new section 15A into Principal Act 14. The Principal Act is amended by the insertion of the following section after section 15: “Offence in relation to decision-making assistance agreement 15A. (1) A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke a decision-making assistance agreement 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. (2) 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, vary or revoke a decision-making assistance agreement.”. Amendment of section 16 of Principal Act 15. Section 16 of the Principal Act is amended, in the definition of “co-decision-maker”, by the substitution of “this Part, regulations made under section 31 and specifications made under section 31A” for “this Part and regulations made under section 31”. Amendment of section 17 of Principal Act 16. Section 17 of the Principal Act is amended— (a) in subsection (1), by the substitution of “this Part, regulations made under section 31 and specifications made under section 31A” for “this Part and regulations made under section 31”, (b) by the insertion of the following subsection after subsection (1): “(1A) A person in relation to whom a decision-making representation order was made in circumstances where section 38(1)(a) or section 55(4) applied may appoint a co-decision-maker in accordance with this section, and this Part and the regulations and specifications made thereunder shall apply to that appointment with any necessary modifications.”, and (c) in subsection (3), by the substitution of “this section, regulations made under section 31 and specifications made under section 31A” for “this section and regulations made under section 31”. Amendment of section 18 of Principal Act 17. Section 18(1)(g) of the Principal Act is amended by the substitution of “section 15A, 34,” for “section 34,”. Amendment of section 20 of Principal Act 18. Section 20(6) of the Principal Act is amended— (a) in paragraph (g), by the substitution of “section 15A, 34,” for “section 34”, and (b) in paragraph (h), by the substitution of the following subparagraph for subparagraph (iii): “(iii) has an enduring power of attorney that is the subject of a notification that has been accepted by the Director under section 71C, or an enduring power under the Act of 1996 that has been registered, in respect of himself or herself, or”. Amendment of section 21 of Principal Act 19. Section 21 of the Principal Act is amended— (a) in subsection (2), by the substitution of “in such form as shall be specified under section 31A” for “in such form”, (b) in subsection (3), by the substitution of “specified under section 31A” for “prescribed by regulations made under section 31”, (c) by the insertion of the following subsections after subsection (3): “(3A) Subsection (3)(a) shall not apply— (a) in relation to the spouse of an appointer, where, at the time at which the application is made under subsection (2)— (i) a decree of judicial separation has been granted to either the appointer or his or her spouse by a court in the State or any decree has been so granted by a court outside the State and is recognised in the State as having like effect, (ii) a written agreement to separate has been entered into between the appointer and his or her spouse, or (iii) subject to section 2(2), the appointer and his or her spouse have separated and have ceased to cohabit for a continuous period of 12 months, and (b) in relation to the civil partner of an appointer, where, at the time at which the application is made under subsection (2)— (i) a written agreement to separate has been entered into between the appointer and his or her civil partner, or (ii) subject to section 2(2), the civil partners have separated and have ceased to cohabit for a continuous period of not less than 12 months. (3B) Subject to section 2(2), subsection (3)(b) shall not apply in relation to the cohabitant of an appointer where, at the time at which the application is made under subsection (2), the appointer and his or her cohabitant have separated and have ceased to cohabit for a continuous period of not less than 12 months.”, and (d) in subsection (4)— (i) in paragraph (f), by the substitution of— (I) “practitioner or” for “practitioner and”, and (II) “his or her” for “their”, and (ii) in paragraph (g), by the substitution of “specified under section 31A” for “prescribed by regulations made under section 31”. Amendment of section 22 of Principal Act 20. Section 22(7) of the Principal Act is amended— (a) in subsection (7), by the substitution of “For the purposes of subsection (6), a document” for “A document”, and (b) by the insertion of the following subsection after subsection (7): “(8) Once the Director has registered or has refused to register under this section a co-decision-making agreement, the applicants concerned shall, as soon as practicable, give notice to the persons referred to in section 21(3) (other than those to whom subsections (3A) and (3B) of that section relate) of that registration or refusal, as the case may be, in the form specified under section 31A.”. Amendment of section 24 of Principal Act 21. Section 24 of the Principal Act is amended— (a) in subsection (2), by the substitution of “in such form as shall be specified under section 31A” for “in such form”, (b) in subsection (3)— (i) in paragraph (i), by the substitution of “notify the appointer, the co-decision‑maker and the person who made the objection” for “notify the person who made the objection”, and (ii) by the substitution of the following paragraph for paragraph (ii): “(ii) where he or she is of the view that the objection is well founded, notify the appointer, the co-decision-maker and the person who made the objection of his or her decision and refuse to register the co-decision-making agreement.”, (c) by the deletion of subsection (4), (d) by the substitution of the following subsection for subsection (5): “(5) A person who has been notified under subsection (3) of the Director’s decision may, not later than 21 days after the date of issue of the notification by the Director, appeal the decision concerned to the court.”, and (e) by the substitution of the following paragraphs for paragraphs (a) and (b) of subsection (6): “(a) where the Director has made a decision to which subsection (3)(i) refers— (i) declare that the objection is well founded and require the Director to remove the co-decision-making agreement concerned from the Register, or (ii) affirm the decision of the Director, (b) where the Director has made a decision to which subsection (3)(ii) refers— (i) declare that the objection is not well founded and require the Director to proceed to consider, in accordance with section 22, whether the co-decision-making agreement should be registered, taking the court’s declaration into account, or (ii) affirm the decision of the Director and declare that the co-decision-making agreement should not be registered, or”. Amendment of section 25 of Principal Act 22. Section 25 of the Principal Act is amended— (a) in subsection (3)— (i) by the substitution of “The Director shall make such details of the Register as he or she shall specify” for “The Director shall make the Register”, and (ii) in paragraph (b), by the substitution of “inspecting those details of the Register” for “inspecting the Register”, (b) in subsection (4), by the substitution of “or part thereof, or, where applicable, a varied co-decision-making agreement or part thereof,”, for “or part thereof,”, (c) by the insertion of the following subsection after subsection (4): “(4A) An authenticated copy of a co-decision-making agreement or part thereof, or, where applicable, of a varied co-decision-making agreement or part thereof, that is issued by the Director under subsection (4) and stamped by the Director with a time and date stamp (which may be by automated means), shall be evidence of the contents of the agreement or part thereof as at the date and time indicated on the stamp.”, and (d) in subsection (5), by the substitution of “or part thereof, or, where applicable, a varied co-decision-making agreement or part thereof,”, for “or part thereof,”. Amendment of section 26 of Principal Act 23. Section 26(3) of the Principal Act is amended— (a) by the substitution of “a statement” for “statements”, and (b) in paragraph (a), by the substitution of “practitioner, or” for “practitioner, and”. Amendment of section 27 of Principal Act 24. Section 27 of the Principal Act is amended— (a) in subsection (2), by the substitution of— (i) “specified under section 31A” for “prescribed by regulations made under section 31”, and (ii) “as are specified under section 31A” for “as are prescribed”, (b) by the substitution of the following subsection for subsection (4): “(4) Where a co-decision-maker fails to comply with a notification under subsection (3), the Director— (a) may, 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 specifications made under section 31A, accept the report as if it were in compliance with this section and the relevant specifications, (b) may make such further directions with regard to the submission of the report in question as he or she considers appropriate, or (c) may, subject to subsection (4A) and following consultation with the appointer and the co-decision-maker, make a determination that the co-decision-maker shall, as soon as may be or from a date specified by the Director, no longer act as co-decision-maker for the appointer concerned.”, (c) by the insertion of the following subsections after subsection (4): “(4A) Where the Director has made a determination under subsection (4)(c) he or she shall notify the appointer and the co-decision-maker of his or her determination, provide reasons for that determination and update the Register accordingly. (4B) An appointer or a co-decision-maker who has been notified under subsection (4A) of the Director’s determination may, not later than 21 days after the date of issue of the notification by the Director, appeal the determination concerned to the court.”, and (d) by the substitution of the following subsection for subsection (5): “(5) Pursuant to an appeal to it under subsection (4B), the court may— (a) affirm the determination of the Director, (b) declare that the co-decision-maker shall continue to act as such for the appointer concerned and require the Director to update the Register accordingly, or (c) make such other declaration or order as it considers appropriate.”. Amendment of section 28 of Principal Act 25. Section 28 of the Principal Act is amended— (a) in subsection (3), by the substitution of “in such form as shall be specified under section 31A” for “in such form”, and (b) in subsection (4)— (i) by the substitution of “specified under section 31A” for “prescribed by regulations made under section 31”, and (ii) in paragraph (c), by the substitution of “practitioner or” for “practitioner and”. Amendment of section 29 of Principal Act 26. Section 29 of the Principal Act is amended— (a) in subsection (2), by the substitution of “specified under section 31A” for “prescribed by regulations made under section 31”, (b) in subsection (3), by the substitution of “and each such signature” for “and, in the case of a revocation by the appointer, his or her signature”, (c) in subsection (4), by the substitution of the following for “as the case may be”: “as the case may be, and the notification, which shall be in such form as shall be specified under section 31A, shall be accompanied by the following: (a) a statement in writing by the person making the revocation outlining his or her reasons for the revocation; (b) if the appointer is the person making the revocation, a statement by a registered medical practitioner or a statement by such other healthcare professional as shall be prescribed by regulations made under section 31 that in his or her opinion, the appointer has capacity to revoke the co-decision-making agreement; (c) details of the notice given pursuant to subsection (4A); (d) information on any change in the details provided pursuant to section 21(4)(e) in the application to register the co-decision-making agreement; (e) the appropriate fee, as prescribed by regulations made under section 31.”, (d) by the insertion of the following subsection after subsection (4): “(4A) The person making the revocation or revocation in part of a registered co-decision-making agreement shall, at the same time as notifying the Director under subsection (4), give notice of the revocation or revocation in part, in such form as shall be specified under section 31A, to the persons specified in section 21(3).”, and (e) in subsection (5)— (i) by the substitution of “extent of the revocation.” for “extent of the revocation,”, and (ii) by the deletion of “and in either case notify the persons specified in section 21(3) of the fact of the revocation or revocation in part, as the case may be.”. Amendment of section 30 of Principal Act 27. Section 30 of the Principal Act is amended— (a) in subsection (1)— (i) in paragraph (a)— (I) by the substitution of “the scope of, or in breach of,” for “the scope of”, and (II) by the substitution of “agreement, or in breach of this Act” for “agreement”, and (ii) in paragraph (e), by the substitution of “to enter into, or to vary or revoke,” for “to enter into”, (b) by the insertion of the following subsections after subsection (1): “(1A) Following the receipt of a complaint under subsection (1) the Director shall carry out such review or investigation of the matter the subject of the complaint as he or she considers appropriate and shall, subject to subsection (1B), form a view as to whether or not the complaint is well founded not later than 3 months after the date of his or her receipt of the complaint (in this section referred to as the ‘initial investigation period’). (1B) The Director may, before the date of expiry of the initial investigation period, extend the duration of his or her investigation by a period of up to 6 months from that date by sending written notice to the complainant, the person who is the subject of the complaint and the relevant person concerned giving reasons for the extension.”, (c) in subsection (2)— (i) by the substitution of “The Director shall, as soon as is practicable after having formed a view under subsection (1A)” for “Following the receipt of a complaint under subsection (1), the Director shall carry out an investigation of the matter which is the subject of the complaint and”, (ii) in paragraph (a), by the substitution of “complaint,” for “complaint, or”, and (iii) by the insertion of the following paragraph after paragraph (a): “(aa) notwithstanding paragraph (a), where he or she is of the view that the complaint is well founded and that— (i) the provision of clarification by him or her to the co-decision-maker regarding the role of the co-decision-maker would be an appropriate resolution, or (ii) the subject matter of the complaint could be appropriately resolved under section 96(4), the Director may, not later than 3 months after having formed a view under subsection (1A), provide the clarification referred to in subparagraph (i), or proceed to resolve the complaint as soon as possible under section 96(4), as the case may be, and”, (d) in subsection (3), by the substitution of “3 months” for “21 days”, (e) in subsection (4), by the substitution of “investigation, to which this section shall, with any necessary modifications, apply” for “investigation and make an application to the court for a determination in relation to any matter specified in subsection (1) ”. (f) by the insertion of the following subsections after subsection (4): “(4A) Where subsection (2)(aa) applies and the Director has provided the clarification referred to in subparagraph (i) of that subsection or has resolved the complaint under section 96(4) as referred to in subparagraph (ii) of that subsection, the Director may— (a) request further information regarding the outcome of the clarification or resolution, as the case may be, or (b) request confirmation that the complaint has been resolved, from the complainant, the person who is the subject of the complaint or the relevant person, as the Director considers appropriate. (4B) If the Director is not satisfied, following the receipt of the information or confirmation referred to in subsection (4A), that the clarification or resolution referred to in that subsection has satisfactorily resolved the complaint, the Director may make an application to the court in accordance with subsection (2)(a) or may take such other steps as he or she considers appropriate in order to resolve the complaint.”, (g) in subsection (5)— (i) in paragraph (a), by the deletion of “or (4)”, (ii) in paragraph (b), by the substitution of “subsection (3) or (7)(b)” for “subsection (3)”, and (iii) by the substitution of “concerned, and that the Register shall be amended accordingly” for “concerned”, and (h) by the insertion of the following subsections after subsection (5): “(6) The Director shall, in accordance with this section, investigate a complaint under subsection (1) unless in his or her opinion there has been undue delay in making the complaint. (7) A decision by the Director under subsection (6) not to investigate a complaint— (a) shall be in writing, shall contain the reasons for the decision and shall be sent to the complainant as soon as possible after it is made, and (b) may be appealed by the complainant to the court not later than 3 months after the date of receipt by the complainant of the decision.”. Amendment of section 31 of Principal Act 28. The Principal Act is amended by the substitution of the following section for section 31: “Regulations - Part 4 31. The Minister, having regard to the requirements of this Part, shall prescribe by regulations the following matters: (a) the bodies or classes of persons referred to in section 25(3)(a) and section 25(4)(a), who may inspect the Register or receive an authenticated copy of a co-decision-making agreement, as the case may be; (b) the class of healthcare professionals under section 21(4)(f), 26(3)(b), 28(4)(c) and 29(4)(b); (c) the fees to be paid in connection with— (i) an application to register a co-decision-making agreement or a varied co-decision-making agreement, (ii) an objection to an application to register a co-decision-making agreement or a varied co-decision-making agreement, (iii) the issue of an authenticated copy of a co-decision-making agreement or part thereof, and (iv) the notification to the Director of the revocation or revocation in part of a co-decision-making agreement; (d) the circumstances in which the fees referred to in paragraph (c) may be waived by the Director.”. Insertion of new section 31A into Principal Act 29. The Principal Act is amended by the insertion of the following section: “Matters to be specified by Director in relation to co-decision-making agreements 31A. The Director may, with the consent of the Minister, specify in writing the following: (a) the form of a co-decision-making agreement; (b) the form of an application under sections 21(2) and 28(3) to register a co-decision-making agreement and a varied co-decision-making agreement; (c) the form of notice under sections 21(3) and 28(4) of an application to register a co-decision-making agreement and a varied co-decision-making agreement; (d) the form of references under section 21(4)(g) as to the personal character of a co-decision-maker; (e) the form of notice by the applicants under section 22(8); (f) the form of an objection under section 24 to the registration of a co-decision-making agreement and a varied co-decision-making agreement; (g) the form of a report under section 27 to be submitted by a co-decision-maker to the Director; (h) the form of revocation, or revocation in part, under section 29(2) of a co-decision-making agreement; (i) the form of notice of the revocation, or revocation in part, of a registered co-decision-making agreement under section 29(4A) to the persons specified in section 21(3).”. Amendment of section 36 of Principal Act 30. Section 36 of the Principal Act is amended— (a) in subsection (4)— (i) by the insertion of the following paragraphs after paragraph (c): “(ca) the cohabitant of the relevant person, (cb) a child of the relevant person who has attained the age of 18 years,”, (ii) by the substitution of the following paragraph for paragraph (g): “(g) an attorney or an attorney under the Act of 1996 for the relevant person,”, (iii) in paragraph (j)(ii), by the substitution of “person, and” for “person.”, and (iv) by the insertion of the following paragraph after paragraph (j): “(k) a person or body— (i) having reached the age of 18 years, if an individual, and (ii) having a bona fide interest in the welfare of relevant persons, as may be prescribed by the Minister by regulations.”, (b) in subsection (8)(b), by the substitution of “the court, having regard to the known will and preferences of the relevant person,” for “the court”, (c) by the insertion of the following subsections after subsection (10): “(10A) Nothing in this section shall operate to prohibit— (a) the preparation of a report of proceedings under this Part by— (i) a barrister or a solicitor, or (ii) a person falling within any other class of persons specified in regulations made under subsection (10B) for the purposes of this subsection, (b) the publication of a report prepared in accordance with paragraph (a), or (c) the publication of the decision of any court in such proceedings, in accordance with rules of court, provided that the report or decision does not contain any information that would enable the parties to the proceedings or any person to whom the proceedings relate to be identified and, accordingly, unless in the special circumstances of the matter the court, for reasons that shall be specified in the direction, otherwise directs, a person referred to in paragraph (a) may, for the purposes of preparing such a report— (i) attend the proceedings, and (ii) have access to any relevant court documents, subject to any directions the court may give in that behalf. (10B) The Minister may, after consultation with the Minister for Justice, make regulations specifying a class of persons for the purposes of subsection (10A) if the Minister is satisfied that the publication of reports prepared in accordance with subsection (10A)(a) by persons falling within that class is likely to provide information that will assist in the better operation of this Act.”, and (d) by the insertion of the following subsection after subsection (11): “(12) In this section— (a) a reference to a spouse of a relevant person shall not include a person where, at the time at which the application is made under subsection (1)— (i) a decree of judicial separation has been granted to either the relevant person or his or her spouse by a court in the State or any decree has been so granted by a court outside the State and is recognised in the State as having like effect, (ii) a written agreement to separate has been entered into between the relevant person and his or her spouse, or (iii) subject to section 2(2), the relevant person and his or her spouse have separated and have ceased to cohabit for a continuous period of 12 months, (b) a reference to a civil partner of a relevant person shall not include a person where, at the time at which the application is made under subsection (1)— (i) a written agreement to separate has been entered into between the relevant person and his or her civil partner, or (ii) subject to section 2(2), the civil partners have separated and have ceased to cohabit for a continuous period of not less than 12 months, and (c) subject to section 2(2), a reference to a cohabitant of a relevant person shall not include a person where, at the time at which the application is made under subsection (1), the relevant person and his or her cohabitant have separated and have ceased to cohabit for a continuous period of not less than 12 months.”. Amendment of section 38 of Principal Act 31. Section 38 of the Principal Act is amended by the insertion of the following subsection after subsection (8): “(8A) Notwithstanding subsection (2)(b), the court, in making a decision-making representation order in the circumstances where subsection (1)(a) or section 55(4) applies, shall— (a) in attaching any conditions under subsection (8)(c), take into account the application of section 41(3) to the decision-making representative, and (b) make provision for the decision-making representation order to cease to have effect on the date of registration of a co-decision-making agreement in relation to the relevant person under Part 4.”. Amendment of section 39 of Principal Act 32. Section 39(1)(g) of the Principal Act is amended by the substitution of “section 15A, 34,” for “section 34,”. Amendment of section 40 of Principal Act 33. Section 40(4) of the Principal Act is amended— (a) in paragraph (g), by the substitution of “section 15A, 34,” for “section 34,”, and (b) in paragraph (h), by the substitution of the following subparagraph for subparagraph (iii): “(iii) has an enduring power of attorney that is the subject of a notification that has been accepted by the Director under section 71C, or an enduring power under the Act of 1996 that has been registered, in respect of himself or herself, or”. Amendment of section 41 of Principal Act 34. Section 41 of the Principal Act is amended by the insertion of the following subsection after subsection (2): “(3) Notwithstanding subsection (2), a decision-making representative appointed in circumstances where section 38(1)(a) or section 55(4) applies shall ensure, in so far as is practicable, that he or she jointly makes decisions with the relevant person.”. Amendment of section 42 of Principal Act 35. Section 42 of the Principal Act is amended— (a) in subsection (1), by the substitution of “expenses as may be approved by the Director or otherwise provided for by way of regulations made by the Minister after consultation with the Director and with the consent of the Minister for Public Expenditure and Reform, and” for “expenses”, (b) in subsection (2), by the substitution of “reasonable remuneration in accordance with regulations made under subsection (4)” for “reasonable remuneration”, and (c) by the insertion of the following subsections after subsection (2): “(3) Subject to subsection (4), where a decision-making representative is appointed by the court in the circumstances to which section 38(7) applies and— (a) the court makes an order to which subsection (1) refers that the decision-making representative shall not be entitled to be reimbursed out of the assets of the relevant person in respect of his or her fair and reasonable expenses reasonably incurred in performing his or her functions, (b) the court has not made a direction under subsection (2), or (c) where paragraph (a) or (b) does not apply, but the assets of the relevant person are insufficient to pay the relevant reimbursement or remuneration, as the case may be, the Director may— (i) reimburse the decision-making representative in respect of his or her fair and reasonable expenses reasonably incurred in performing his or her functions as decision-making representative, or (ii) pay such reasonable remuneration to the decision-making representative in relation to the performance of his or her functions as decision-making representative and which functions are carried out in connection with his or her trade or profession, or in other exceptional circumstances specified by the Director. (4) The reimbursement of fair and reasonable expenses referred to in subsection (3)(i) and the payment of reasonable remuneration referred to in subsections (2) and (3)(ii)— (a) shall be calculated in accordance with the methodology and any limits specified in, and (b) shall be paid subject to such conditions as may be prescribed by, regulations made by the Minister after consultation with the Director and with the consent of the Minister for Public Expenditure and Reform, and such regulations may also make provision for the circumstances in which the Director may authorise the reimbursement or payment, as the case may be, of expenses or remuneration in excess of the calculations or limits provided for in accordance with paragraph (a).”. Amendment of section 43 of Principal Act 36. Section 43 of the Principal Act is amended by the deletion of subsections (3) to (5). Amendment of section 44 of Principal Act 37. Section 44 of the Principal Act is amended by the deletion of subsections (5) to (8). Amendment of section 45 of Principal Act 38. Section 45 of the Principal Act is amended— (a) in subsection (3)— (i) by the substitution of “The Director shall make such details of the Register as he or she shall specify” for “The Director shall make the Register”, and (ii) in paragraph (b), by the substitution of “inspecting those details of the Register” for “inspecting the Register”, (b) in subsection (4), by the substitution of “or part thereof, or, where applicable, any variations to the order or part thereof,”, for “or part thereof,”, and (c) by the insertion of the following subsections after subsection (4): “(5) An authenticated copy of a decision-making representation order or part thereof, or, where applicable, any variations to the order or part thereof, that is issued by the Director under subsection (4) and stamped by the Director with a time and date stamp (which may be by automated means), shall be evidence of the contents of the order or part thereof, or where applicable, of any variations to the order or part thereof, as at the date and time indicated on the stamp. (6) The Director shall keep a record of any body or person that has inspected the Register or received an authenticated copy of a decision-making representation order, or part thereof, or where applicable, of any variations to the order or part thereof, from him or her.”. Amendment of section 46 of Principal Act 39. Section 46 of the Principal Act is amended— (a) in subsection (3), by the substitution of “specified by the Director, with the consent of the Minister,” for “prescribed by regulations made by the Minister”, (b) by the deletion of subsection (4), (c) in subsection (6)(b), by the substitution of “Director, by a general visitor” for “Director”, and (d) in subsection (8)(a)— (i) by the substitution of “specifications made by the Director under subsection (3)” for “regulations made by the Minister”, and (ii) by the substitution of “relevant specifications” for “relevant regulations”. Amendment of section 47 of Principal Act 40. Section 47 of the Principal Act is amended— (a) in subsection (1)— (i) by the substitution of “one or both of” for “one or more of”, and (ii) in paragraph (a)— (I) by the substitution of “the scope of, or in breach of,” for “the scope of”, and (II) by the substitution of “order, or in breach of this Act” for “order”, (b) by the insertion of the following subsections after subsection (1): “(1A) Following the receipt of a complaint under subsection (1) the Director shall carry out such review or investigation of the matter the subject of the complaint as he or she considers appropriate and shall, subject to subsection (1B), form a view as to whether or not the complaint is well founded not later than 3 months after the date of his or her receipt of the complaint (in this section referred to as the ‘initial investigation period’). (1B) The Director may, before the date of expiry of the initial investigation period, extend the duration of his or her investigation by a period of up to 6 months from that date by sending written notice to the complainant, the person who is the subject of the complaint and the relevant person concerned giving reasons for the extension.”, (c) in subsection (2)— (i) by the substitution of “The Director shall, as soon as is practicable after having formed a view under subsection (1A)” for “Following the receipt of a complaint under subsection (1), the Director shall carry out an investigation of the matter which is the subject of the complaint and”, (ii) in paragraph (a), by the substitution of “complaint,” for “complaint, or”, and (iii) by the insertion of the following paragraph after paragraph (a): “(aa) notwithstanding paragraph (a), where he or she is of the view that the complaint is well founded and that— (i) the provision of clarification by him or her to the decision-making representative regarding the role of the decision-making representative would be an appropriate resolution, or (ii) the subject matter of the complaint could be appropriately resolved under section 96(4), the Director may, not later than 3 months after having formed a view under subsection (1A), provide the clarification referred to in subparagraph (i), or proceed to resolve the complaint as soon as possible under section 96(4), as the case may be, and”, (d) in subsection (3), by the substitution of “3 months” for “21 days”, (e) in subsection (4), by the substitution of “investigation, to which this section shall, with any necessary modifications, apply” for “investigation and make an application to the court for a determination in relation to any matter specified in subsection (1)”, (f) by the insertion of the following subsections after subsection (4): “(4A) Where subsection (2)(aa) applies and the Director has provided the clarification referred to in subparagraph (i) of that subsection or has resolved the complaint under section 96(4) as referred to in subparagraph (ii) of that subsection, the Director may— (a) request further information regarding the outcome of the clarification or resolution, as the case may be, or (b) request confirmation that the complaint has been resolved, from the complainant, the person who is the subject of the complaint or the relevant person, as the Director considers appropriate. (4B) If the Director is not satisfied, following the receipt of the information or confirmation referred to in subsection (4A), that the clarification or resolution referred to in that subsection has satisfactorily resolved the …