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

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Insertion of new sections 71A to 71D into Principal Act

59. The Principal Act is amended by the insertion of the following sections after section 71:

“Notification to Director by attorney

71A. (1) Where an attorney has reason to believe that a donor lacks capacity in relation to one or more relevant decisions that are the subject of an instrument creating an enduring power of attorney that was executed by the donor and registered under section 69, the attorney shall, as soon as is practicable, so notify the Director, in compliance with this Part and in the form specified by the Director under section 79A.

(2) A notification to the Director under subsection (1) shall be accompanied by—

(a) the fee prescribed by the Minister under section 79,

(b) a statement by each of 2 persons, each being either—

(i) a registered medical practitioner, or

(ii) such other healthcare professional of a class that shall be prescribed by the Minister under section 79,

that in his or her opinion the donor lacks capacity in relation to one or more relevant decisions which are the subject of the enduring power, and

(c) a copy of any notice given under subsection (3).

(3) The attorney shall, at the same time as he or she notifies the Director under subsection (1), give notice in the form specified by the Director under section 79A 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 or persons that were 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(3).

(4) Subsection (3)(b) shall not apply—

(a) in relation to the spouse of a donor, where, at the time at which the notification is made under subsection (1)—

(i) a decree of judicial separation has been granted to either the donor 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 donor and his or her spouse, or

(iii) subject to section 2(2), the donor 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 a donor, where, at the time at which the notification is made under subsection (1)—

(i) a written agreement to separate has been entered into between the donor 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.

(5) Subject to section 2(2), subsection (3)(c) shall not apply in relation to the cohabitant of a donor where, at the time at which the notification is made under subsection (1), the donor and his or her cohabitant have separated and have ceased to cohabit for a continuous period of not less than 12 months.

(6) An attorney may, before making a notification under subsection (1), apply to the court for a determination on any question as to the validity of the enduring power of attorney in question.

(7) Where an attorney has made a notification under subsection (1), then pending acceptance of the notification by the Director under section 71C, 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 enduring power of attorney in question—

(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 notification has been accepted, or

(c) to remunerate the attorney or other persons in so far as that is permitted under the power.

(8) Following the taking of an action pursuant to subsection (7), 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 acceptance by the Director of the notification,

(c) any measures he or she took to encourage the donor to participate in the action taken, and

(d) the outcome of the action.

(9) 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 notification under subsection (1).

Objections to acceptance by Director of notification

71B. (1) Any of the persons referred to in paragraphs (a) to (j) of section 71A(3) (other than those to whom subsections (4) and (5) of that section relate), 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 acceptance of the notification made under section 71A.

(2) An objection under subsection (1) shall be in such form as specified by the Director under section 79A 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 notification was not made in accordance with section 71A;

(b) that the notice requirements of section 71A(3) were not complied with;

(c) that the donor does not lack capacity;

(d) that a false statement is included in the notification to the Director.

(3) Where the Director receives an objection under subsection (1) that is in accordance with subsection (2) and that was made within the period specified in subsection (1), he or she shall—

(a) review the objection,

(b) consult with the attorney,

(c) unless he or she thinks it inappropriate to do so, consult with the donor, and

(d) consult with such other persons as he or she considers relevant,

and shall, where he or she decides that—

(i) the objection is not well founded, notify the donor, the attorney and the person who made the objection of his or her decision, provide reasons for that decision and proceed, subject to section 71C, to accept the notification of the instrument concerned and to register the acceptance in the Register, or

(ii) the objection is well founded, notify the donor, the attorney and the person who made the objection of his or her decision and refuse under section 71C to accept the notification.

(4) 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.

(5) Upon an appeal under subsection (4), the court may—

(a) where the Director has made a decision to which subsection (3)(i) refers—

(i) affirm the decision of the Director, or

(ii) require the Director to refuse to, or as the case may be, rescind, his or her acceptance of the notification under section 71C and to make any appropriate modifications to the Register,

(b) where the Director has made a decision to which subsection (3)(ii) refers—

(i) affirm the decision of the Director, or

(ii) declare that the objection was not well founded and require the Director to proceed to consider, in accordance with section 71C, the notification under section 71A, taking the court’s declaration into account,

or

(c) make such other declaration or order as it considers appropriate.

Acceptance by Director of notification

71C. (1) On receipt of a notification under section 71A, the Director shall review the notification and any objections received under section 71B and shall carry out such reasonable enquiries as he or she considers necessary in order to establish whether the following criteria are met:

(a) notice has been given in accordance with section 71A;

(b) the application is in accordance with section 71A.

(2) Where, after reviewing a notification under section 71A, the Director is satisfied that the notification is in order, he or she shall, subject to section 71B, accept the notification and note the fact of the acceptance on the Register.

(3) Where, after reviewing an application under section 71A, the Director forms the view that one or more of the criteria in paragraphs (a) and (b) 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.

(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) and (b) of subsection (1) are satisfied, accept, subject to section 71B, the notification and note the fact of the acceptance in the Register, or

(b) where he or she remains of the view that one or more of the criteria set out in paragraphs (a) and (b) of subsection (1) is not satisfied, refuse to accept the notification and notify the attorney and the donor of that fact and the reasons for his or her view.

(5) An attorney whose notification under section 71A is not accepted may, not later than 21 days after the date of issue of the notification by the Director under subsection (4)(b), appeal the refusal by the Director to accept the notification to the court.

(6) Upon an appeal under subsection (5), the court may—

(a) require the Director to accept the notification and note the acceptance in the Register,

(b) affirm the decision of the Director, or

(c) make such other order or declaration as it considers appropriate.

(7) Following acceptance by the Director of a notification, he or she shall send an authenticated copy of the instrument to the attorney and the donor.

(8) For the purposes of subsection (7), 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 notified.

(9) Once the Director has accepted or has refused to accept under this section a notification under section 71A, the attorney concerned shall, as soon as practicable, give notice to the persons referred to in section 71A(3) (other than those to whom subsections (4) and (5) of that section relate) of that acceptance or refusal, as the case may be, in the form specified by the Director under section 79A.

Effect and proof of acceptance by Director of notification

71D. (1) The effect of the acceptance by the Director under section 71C of a notification under section 71A is that—

(a) no purported revocation of the enduring power of attorney by the donor shall be valid unless the Director recognises a written notice of revocation under section 73A,

(b) no resignation by an attorney from his or her role as attorney under the enduring power shall be valid except on notice to the donor and with the consent of the court under section 74(3), and

(c) subject to section 73A, 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 acceptance by the Director under section 71C of a notification under section 71A 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.

(2) Subsection (1) applies for as long as the acceptance of the notification is in force.”.