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

• Permanent Page URL

Insertion of new sections 58A and 58B into Principal Act

50. The Principal Act is amended by the insertion of the following sections after section 58:

“Provisions regarding trust corporations

58A. (1) The Director shall, with the consent of the Minister, specify from time to time the procedural requirements that a trust corporation shall be required to fulfil—

(a) on an application for registration of an instrument creating an enduring power of attorney in which the trust corporation is named as an attorney in order for the Director to be satisfied as to the suitability for appointment of the trust corporation as attorney, and

(b) on a notification by an attorney under section 71A.

(2) Without prejudice to the generality of subsection (1), the Director may, with the consent of the Minister, specify the following matters:

(a) the information and documents that are to be provided by the trust corporation to the Director on an application for registration of an instrument creating an enduring power of attorney, which may include—

(i) an affidavit, or a statement of truth within the meaning of section 21 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 , that the trust corporation can lawfully act as such and an undertaking to notify the Director forthwith if this changes at any time throughout the duration of the appointment as attorney,

(ii) information and supporting documents to demonstrate the internal management of the trust corporation and the supervision and controls operated by it, in particular with regard to—

(I) the decision making process of the trust corporation,

(II) the manner in which the trust corporation may hold a donor’s assets and funds, and

(III) the manner in which those assets and funds may be paid out,

(iii) the total amount of assets and funds of donors held by the trust corporation and the level of insurance cover that the trust corporation has and shall maintain in respect of loss, through dishonesty, breach of duty, negligence or any other cause, to the assets and funds, and

(iv) information regarding any additional regulation to which that the trust corporation is and will be subject,

(b) the information and documents required to be provided to demonstrate the identity and manner of authorisation of the persons authorised to carry out any or all of the actions referred to in subsection (3), and

(c) the information and documents to be provided to the Director on notification under section 71A, in particular regarding the authorisation of any further persons to whom paragraph (b) refers.

(3) Any officer authorised for the purpose by a trust corporation or the directors or governing body thereof (in this section referred to as an ‘authorised officer’) may, on behalf of the corporation, swear affidavits, give security and do any other act or thing which the Director or an enduring power of attorney may require, and the acts of an authorised officer shall be binding on the trust corporation.

(4) The requirement in section 59(1) regarding the minimum age of an attorney shall not apply to a trust corporation.

Liability of officers of trust corporation for offences

58B. (1) Where an offence under section 80 or section 145 has been committed by a trust corporation and the doing of the acts that constituted the offence has been authorised, or consented to, or connived in, by a person, being a director, manager, chief executive officer, secretary, or other similar officer of the trust corporation, or a person who purports to act in any such capacity, that person as well as the trust corporation shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(2) Where a person is proceeded against as aforesaid for such an offence and it is proved that, at the material time, he or she was a director of the trust corporation concerned or a person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the trust corporation, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is proved, that that person consented to the doing of the acts by the trust corporation which constituted the commission by it of the offence concerned under section 80 or 145.

(3) Where the affairs of a trust corporation are managed by its members, subsections (1) and (2) shall apply in relation to the acts or defaults of a member in connection with his or her functions of management as if he or she were a director of the trust corporation.”.