Assisted Decision-Making (Capacity) (Amendment) Act 2022
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Number 46 of 2022 | ||
ASSISTED DECISION-MAKING (CAPACITY) (AMENDMENT) ACT 2022 | ||
CONTENTS | ||
Preliminary and General | ||
Section | ||
1. Short title, collective citation, construction and commencement | ||
Amendment of Principal Act | ||
50. Insertion of new sections 58A and 58B into Principal Act | ||
79. Insertion of new sections 95A and 95B into Principal Act | ||
81. Insertion of new sections 96A and 96B into Principal Act | ||
Amendments to Other Enactments | ||
100. Provisions regarding National Disability Authority Act 1999 | ||
103. Amendment of Irish Human Rights and Equality Commission Act 2014 | ||
104. Amendment of section 42 of Freedom of Information Act 2014 | ||
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Acts Referred to | ||
Adoptive Leave Acts 1995 and 2005 | ||
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) | ||
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 | ||
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) | ||
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 | ||
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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: | ||
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PART 1 Preliminary and General | ||
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Short title, collective citation, construction and commencement | ||
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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. | ||
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Definitions | ||
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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 . | ||
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Repeals | ||
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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. | ||
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PART 2 Amendment of Principal Act | ||
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Amendment of section 2 of Principal Act | ||
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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;”. | ||
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Amendment of section 4 of Principal Act | ||
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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.”. | ||
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Insertion of new section 4A into Principal Act | ||
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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.”. | ||
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Amendment of section 8 of Principal Act | ||
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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,”. | ||
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Amendment of section 9 of Principal Act | ||
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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)”. | ||
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Amendment of section 10 of Principal Act | ||
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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.”. | ||
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Amendment of section 11 of Principal Act | ||
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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,”. | ||
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Amendment of section 13 of Principal Act | ||
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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”. | ||
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Amendment of section 14 of Principal Act | ||
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12. Section 14(1)(b) of the Principal Act is amended by the substitution of “assist” for “advise”. | ||
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Amendment of section 15 of Principal Act | ||
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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.”. | ||
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Insertion of new section 15A into Principal Act | ||
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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.”. | ||
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Amendment of section 16 of Principal Act | ||
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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”. | ||
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Amendment of section 17 of Principal Act | ||
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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”. | ||
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Amendment of section 18 of Principal Act | ||
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17. Section 18(1)(g) of the Principal Act is amended by the substitution of “section 15A, 34,” for “section 34,”. | ||
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Amendment of section 20 of Principal Act | ||
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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”. | ||
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Amendment of section 21 of Principal Act | ||
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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”. | ||
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Amendment of section 22 of Principal Act | ||
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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.”. | ||
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Amendment of section 24 of Principal Act | ||
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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”. | ||
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Amendment of section 25 of Principal Act | ||
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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,”. | ||
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Amendment of section 26 of Principal Act | ||
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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”. | ||
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Amendment of section 27 of Principal Act | ||
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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.”. | ||
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Amendment of section 28 of Principal Act | ||
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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”. | ||
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Amendment of section 29 of Principal Act | ||
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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.”. | ||
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Amendment of section 30 of Principal Act | ||
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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.”. | ||
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Amendment of section 31 of Principal Act | ||
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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.”. | ||
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Insertion of new section 31A into Principal Act | ||
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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).”. | ||
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Amendment of section 36 of Principal Act | ||
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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.”. | ||
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Amendment of section 38 of Principal Act | ||
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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.”. | ||
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Amendment of section 39 of Principal Act | ||
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32. Section 39(1)(g) of the Principal Act is amended by the substitution of “section 15A, 34,” for “section 34,”. | ||
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Amendment of section 40 of Principal Act | ||
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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”. | ||
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Amendment of section 41 of Principal Act | ||
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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.”. | ||
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Amendment of section 42 of Principal Act | ||
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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).”. | ||
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Amendment of section 43 of Principal Act | ||
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36. Section 43 of the Principal Act is amended by the deletion of subsections (3) to (5). | ||
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Amendment of section 44 of Principal Act | ||
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37. Section 44 of the Principal Act is amended by the deletion of subsections (5) to (8). | ||
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Amendment of section 45 of Principal Act | ||
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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.”. | ||
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Amendment of section 46 of Principal Act | ||
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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”. | ||
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Amendment of section 47 of Principal Act | ||
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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 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.”. | ||
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Amendment of section 50 of Principal Act | ||
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41. Section 50(2)(a) of the Principal Act is amended by the deletion of the words “(including reports relating to the cognitive ability of that person)”. | ||
|
Amendment of section 52 of Principal Act | ||
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42. Section 52(b) of the Principal Act is amended— | ||
(a) in subparagraph (ii), by the deletion of the first instance of “and”, | ||
(b) in subparagraph (iii), by the substitution of “advice, and” for “advice.”. | ||
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Amendment of section 54 of Principal Act | ||
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43. Section 54 of the Principal Act is amended— | ||
(a) by the substitution of the following subsection for subsection (1): | ||
“(1) An application for a declaration under section 55(1) in respect of a ward who has attained the age of 18 years by the date of commencement of this Part may be made to the wardship court at any time— | ||
(a) by the ward, | ||
(b) by the committee of the ward, or | ||
(c) with the consent of the wardship court, by— | ||
(i) 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 | ||
(ii) such other person as appears to the wardship court to have a sufficient interest in, or expertise in relation to, the welfare of the ward.”, | ||
and | ||
(b) by the substitution, in subsection (2)(a), of “is 18 years or older” for “reaches the age of 18 years”. | ||
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Insertion of new section 54A into Principal Act | ||
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44. The Principal Act is amended by the insertion of the following section after section 54: | ||
“Assistance to ward during proceedings | ||
54A. (1) The wardship court, on application being made to it under section 54(1), or in proceedings pursuant to section 54(2) or 54(3), may allow the ward, if he or she has not instructed a legal practitioner, and subject to section 100(13), to be assisted in court by a court friend for the ward unless, subject to sections 100(14) and 103(15A), there is another person (in this section referred to as a ‘court assistant’) in respect of whom the court, having regard to the known will and preferences of the ward, is satisfied that such person is suitable, willing and able to assist the ward during the course of the hearing. | ||
(2) Where, on an application being made to the wardship court under section 54(1), or in proceedings pursuant to section 54(2) or 54(3)— | ||
(a) the ward the subject of the application or proceedings has not instructed a legal practitioner, | ||
(b) there is no court friend for the ward, and | ||
(c) there is no court assistant in respect of the ward, | ||
the wardship court may direct the Director to appoint a court friend for the ward. | ||
(3) Proceedings under section 54 shall be conducted with the least amount of formality consistent with the proper administration of justice.”. | ||
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Amendment of section 55 of Principal Act | ||
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45. Section 55 of the Principal Act is amended— | ||
(a) in subsection (2)— | ||
(i) by the substitution of “person the subject of the declaration be” for “former ward be”, and | ||
(ii) by the substitution of “that person.” for “the former ward.”, | ||
(b) in subsection (3)— | ||
(i) by the substitution of “person the subject of the declaration be” for “former ward be”, and | ||
(ii) by the substitution of “that person.” for “the former ward.”, | ||
(c) in subsection (4)— | ||
(i) by the substitution of “wardship court makes” for “court makes”, | ||
(ii) in paragraph (a), by the substitution of “person the subject of the declaration after his or her discharge from wardship” for “former ward”, | ||
(iii) in paragraph (b), by the substitution of “person the subject of the declaration after his or her discharge from wardship” for “former ward”, | ||
(iv) in paragraph (i), by the substitution of “such orders and give such directions” for “such orders”, and | ||
(v) by the substitution of the following paragraphs for paragraph (ii): | ||
“(ii) discharge the ward from wardship upon the appointment of a decision-making representative in respect of him or her, and | ||
(iii) order that the property of the person the subject of the discharge under paragraph (ii) be returned to him or her upon the appointment of a decision-making representative in respect of him or her.”, | ||
(d) in subsection (5)— | ||
(i) in paragraph (a), by the substitution of “such orders and give such directions” for “such orders”, and | ||
(ii) by the substitution of the following paragraphs for paragraph (b): | ||
“(b) discharge the ward from wardship upon the appointment of a decision-making representative in respect of him or her, and | ||
(c) order that the property of the person the subject of the discharge from wardship under paragraph (b) be returned to him or her upon the appointment of a decision-making representative in respect of him or her.”, | ||
and | ||
(e) by the insertion of the following subsections after subsection (5): | ||
“(6) Where the wardship court is making an order or giving a direction under Part 5, to which subsection (4)(i) or subsection (5)(a) refers, subsections (4) to (12) and subsection (14) of section 38 shall apply with any necessary modifications, and as if the ward, or the person the subject of a discharge from wardship under subsection (4)(ii) or (5)(b), as the case may be, were a relevant person. | ||
(7) Sections 39 to 44 and sections 46 and 47 shall apply to decision-making representatives appointed, or to be appointed, by a wardship court under Part 5 as they apply to decision-making representatives appointed, or to be appointed, by a court under Part 5. | ||
(8) A reference in section 45 to a decision-making representation order includes a reference to a decision-making representation order made by a wardship court.”. | ||
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Insertion of new section 55A into Principal Act | ||
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46. The Principal Act is amended by the insertion of the following section after section 55: | ||
“Review of declaration by wardship court as respects capacity | ||
55A. (1) Where the wardship court makes a declaration under section 55(1)(b), the wardship court shall make an order that the capacity of the person the subject of the declaration be reviewed by the court— | ||
(a) subject to paragraph (b), not later than 12 months from the date on which the wardship court made the declaration, or | ||
(b) not later than 3 years from the date on which the wardship court made the declaration if the wardship court is satisfied that the person is unlikely to recover his or her capacity, | ||
and section 49(4) shall apply in respect of the review as it applies to the review of a declaration by a court under section 37(1), with the following modifications: | ||
(i) a reference in section 49(4) to the declaration made by the court under section 37(1) shall be read as a reference to the declaration made by the wardship court under section 55(1)(b); | ||
(ii) a reference in section 49 to the relevant person shall be read as a reference to the person the subject of the declaration of the wardship court under section 55(1)(b). | ||
(2) After the review referred to in subsection (1) has taken place, section 49 shall thereafter apply to the declaration by the wardship court under section 55(1)(b) as it applies to a declaration by a court under section 37(1), with the following modifications: | ||
(a) a reference in section 49 to a declaration made by the court under section 37(1) shall be read as a reference to a declaration made by the wardship court under section 55(1)(b); | ||
(b) a reference in section 49 to a relevant person shall be read as a reference to the person the subject of the declaration of the wardship court under section 55(1)(b); | ||
(c) a reference in section 49(1) to any of the persons referred to in any of paragraphs (b) to (i) of section 36(4) shall be read as a reference to any person who has attained the age of 18 years and who has a bona fide interest in the welfare of the person the subject of the declaration of the wardship court under section 55(1)(b).”. | ||
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Amendment of section 56 of Principal Act | ||
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47. Section 56 of the Principal Act is amended by the insertion of the following subsections after subsection (2): | ||
“(3) Notwithstanding its repeal by section 7(2), the Lunacy Regulation (Ireland) Act 1871 shall remain in force on and after the date of the coming into operation of this Part with regard to any proceedings in being on that date that were initiated under that Act before that date. | ||
(4) Subsections (1) and (2) shall apply to the proceedings referred to in subsection (3), or to an order made in such proceedings, as they apply to an order made before the coming into operation of this Part. | ||
(5) When, in proceedings referred to in subsection (3), the wardship court makes an order by virtue of which a person becomes a ward, it may in those proceedings and notwithstanding section 54, also make a declaration under section 55(1) in respect of the ward and the relevant provisions of the said section 55 shall then apply accordingly. | ||
(6) Nothing in this section shall prevent— | ||
(a) the appointment of a decision-making assistant under section 10 by, | ||
(b) the appointment of a co-decision-maker under section 17 by, | ||
(c) an application to the court under Part 5 in respect of, | ||
(d) the registration of an enduring power under the Act of 1996 under section 10 of that Act that was executed by, or | ||
(e) the registration of an enduring power under the Act of 1996, in accordance with regulations made under section 81(1A)(b), that was executed by, | ||
a person the subject of proceedings referred to in subsection (3). | ||
(7) Where— | ||
(a) an appointment referred to in subsection (6)(b) is made, | ||
(b) a person is appointed as a decision-making representative pursuant to an application under Part 5 referred to in subsection (6)(c), | ||
(c) an enduring power under the Act of 1996 is registered as referred to in paragraphs (d) or (e) of subsection (6), | ||
the proceedings referred to in subsection (3) shall be withdrawn as soon as practicable.”. | ||
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Insertion of new section 57A into Principal Act | ||
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48. The Principal Act is amended by the insertion of the following section after section 57 and in Part 6 of that Act: | ||
“Amendment of Act of 1995 regarding Part 6 | ||
57A. The Act of 1995 is amended— | ||
(a) in section 1(1)— | ||
(i) in the definition of ‘staff of the Board’, by the substitution of ‘Board;’ for ‘Board.’, and | ||
(ii) by the insertion of the following definition: | ||
‘“ward” has the meaning it has in Part 6 of the Assisted Decision-Making (Capacity) Act 2015 .’, | ||
(b) in section 26(3), by the insertion of the following paragraph: | ||
‘(d) a party to an application, or to any other proceedings, under Part 6 of the Assisted Decision-Making (Capacity) Act 2015 shall qualify for legal advice.’, | ||
(c) in section 28, by the insertion of the following subsection after subsection (3A) (inserted by section 52(c) of this Act): | ||
‘(3B) Where the proceedings the subject matter of the application under this section concern an application under subsection (1), or proceedings pursuant to subsection (2) or (3), of section 54 of the Assisted Decision-Making (Capacity) Act 2015 — | ||
(a) paragraphs (c) and (e) of subsection (2) shall not apply, and | ||
(b) where the applicant is a ward, paragraph (a) shall not apply.’, | ||
(d) in section 33, by the insertion of the following subsection after subsection (7A) (inserted by section 52(e) of this Act): | ||
‘(7B) Where a legal aid certificate has been granted to an applicant who is a ward 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 ward concerned.’, | ||
and | ||
(e) in section 37(2), by the insertion of the following paragraph after paragraph (fc) (inserted by section 52(f) of this Act): | ||
‘(fd) make provision for the mechanism for recovery of the costs referred to in section 33(7B);’.”. | ||
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Amendment of section 58 of Principal Act | ||
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49. Section 58 of the Principal Act is amended by the substitution of the following definition for the definition of “trust corporation”: | ||
“‘trust corporation’ has the same meaning as it has in paragraph (b) of the definition of ‘trust corporation’ in section 30(4) of the Succession Act 1965 .”. | ||
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Insertion of new sections 58A and 58B into Principal Act | ||
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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.”. | ||
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Amendment of section 59 of Principal Act | ||
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51. Section 59 of the Principal Act is amended— | ||
(a) in subsection (1)— | ||
(i) by the substitution of “sections 58A, 60” for “sections 60, 62”, and | ||
(ii) in paragraph (a), by the substitution of “donor’s personal welfare or property and affairs, or both;” for “donor’s property and affairs; or”, | ||
(b) in subsection (2), by the substitution of “this Part, regulations made under section 79 and specifications made by the Director under section 79A” for “this Part and regulations made under section 79”, | ||
(c) in subsection (3), by the substitution of “acting as attorney, or resigns from his or her role as attorney” for “acting as attorney”, | ||
(d) by the substitution of the following subsection for subsection (4): | ||
“(4) An enduring power of attorney shall not enter into force until— | ||
(a) the instrument creating the enduring power of attorney has been registered under section 69, | ||
(b) the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power, | ||
(c) the Director has been notified under section 71A of the matters in paragraph (b), and | ||
(d) the Director accepts the notification under section 71C.”, | ||
and | ||
(e) by the insertion of the following subsections after subsection (5): | ||
“(5A) Where an enduring power of attorney confers authority under paragraph (a) or (b) of subsection (1) in relation to the personal welfare of the donor, this shall not authorise the attorney to consent to or refuse treatment for the donor. | ||
(5B) A donor shall not, in an enduring power of attorney, purport to give a power to the attorney to consent to or refuse treatment for the donor and any provision of a power of attorney relating to such purported power shall be null and void.”. | ||
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Amendment of section 60 of Principal Act | ||
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52. Section 60(1) of the Principal Act is amended— | ||
(a) in paragraph (a)(iii), by the substitution of “registration, and on or after its registration until the attorney notifies the Director under section 71A that the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power of attorney and this notification has been accepted by the Director under section 71C” for “registration”, | ||
(b) in paragraph (b)(ii), by the substitution of “registration, and on or after its registration until the attorney notifies the Director under section 71A that the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power of attorney and this notification has been accepted by the Director under section 71C” for “registration”, | ||
(c) by the substitution of the following paragraph for paragraph (c): | ||
“(c) by— | ||
(i) 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, or | ||
(ii) 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;”, | ||
(d) by the deletion of paragraph (d), and | ||
(e) in paragraph (e)(v), by the substitution of “power, and in relation to notification of the Director under section 71A when the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power” for “power”. | ||
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Amendment of section 65 of Principal Act | ||
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53. Section 65(1) of the Principal Act is amended— | ||
(a) in paragraph (a), by the substitution of “attorney, or the person or property of a child of that person” for “attorney”, | ||
(b) in paragraph (b), by the substitution of “attorney, or a child of that person” for “attorney”, and | ||
(c) in paragraph (g), by the substitution of “section 15A, 34,” for “section 34,”. | ||
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Amendment of section 66 of Principal Act | ||
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54. Section 66(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 executed as a donor an enduring power of attorney that has been the subject of a notification under section 71A that has been accepted by the Director under section 71C or has executed as a donor an enduring power under the Act of 1996 that has been registered under that Act,”. | ||
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Amendment of section 67 of Principal Act | ||
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55. The Principal Act is amended by the substitution of the following section for section 67: | ||
“Function of court prior to acceptance of notification | ||
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 that has been registered under section 69 lacks capacity in relation to one or more relevant decisions, exercise any power which would become exercisable under section 77(3) on the acceptance by the Director under section 71C of a notification under section 71A and the court may do so whether or not the attorney concerned has so notified the Director.”. | ||
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Amendment of section 68 of Principal Act | ||
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56. Section 68 of the Principal Act is amended— | ||
(a) by the substitution of the following subsection for subsection (1): | ||
“(1) The donor, or, with the donor’s written consent, his or her attorney, shall, not later than 3 months after the date of the execution of an instrument creating an enduring power of attorney or the date of receipt of all completed supporting documentation, whichever is the later, make an application to the Director, in accordance with this Part and any regulations and specifications made thereunder, to register the instrument creating the enduring power of attorney.”, | ||
(b) in subsection (2), by the substitution of “form as specified by the Director under section 79A” for “form”, | ||
(c) in subsection (3)— | ||
(i) by the substitution of “donor, or, as the case may be, his or her attorney, shall” for “attorney shall”, | ||
(ii) by the substitution of “specified by the Director under section 79A” for “prescribed”, | ||
(iii) by the substitution of the following paragraph for paragraph (a): | ||
“(a) where the application was made by the attorney, the donor,”, | ||
(iv) by the insertion of the following paragraph after paragraph (a): | ||
“(aa) where the application was made by the donor, his or her attorney or attorneys, as the case may be,”, | ||
and | ||
(v) by the substitution of the following paragraph for paragraph (j): | ||
“(j) 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 71A(3) and where there are fewer than 3 persons to whom notice may be given pursuant to paragraphs (a) to (i), the donor shall so specify at least 2 persons.”, | ||
(d) by the insertion of the following subsections after subsection (3): | ||
“(3A) Subsection (3)(b) shall not apply— | ||
(a) in relation to the spouse of a donor, 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 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 application 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. | ||
(3B) 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 application 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.”, | ||
(e) in subsection (4), by the substitution of “A donor or attorney, as the case may be, may,” for “An attorney may,”, | ||
(f) by the deletion of subsections (5) and (6), | ||
(g) in subsection (7)— | ||
(i) by the deletion of paragraph (b), | ||
(ii) by the substitution of “donor” for “appointer” in paragraph (c), and | ||
(iii) by the substitution of the following paragraph for paragraph (e): | ||
“(e) where a trust corporation is named as an attorney, the information and documents specified by the Director under section 58A(2), and”, | ||
and | ||
(h) by the deletion of subsection (8). | ||
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Amendment of section 69 of Principal Act | ||
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57. Section 69 of the Principal Act is amended— | ||
(a) in subsection (1)— | ||
(i) in paragraph (a), by the substitution of “60 and” for “60, 62 and”, | ||
(ii) by the insertion of the following paragraph after paragraph (c): | ||
“(ca) where a trust corporation is named as an attorney, that it has complied with the requirements specified by the Director under section 58A,”, | ||
and | ||
(iii) in paragraph (d), by the deletion of “section 61 and”, | ||
(b) by the insertion of the following subsections after subsection (1): | ||
“(1A) Where the instrument creating the enduring power of attorney differs in an immaterial respect from the form specified by the Director under section 79A(1)(a), the Director may, notwithstanding such difference, treat the enduring power of attorney and the instrument creating it as being in accordance with the form specified by the Director under section 79A(1)(a), if he or she thinks it appropriate to do so. | ||
(1B) If the notice requirements under section 68(3) for registering an enduring power of attorney have not been complied with, the Director may, if he or she is satisfied that all reasonable efforts have been made to satisfy the notice requirements, treat the criteria under subsection (1)(d) as having been met.”, | ||
(c) in subsection (5), by the substitution of “A donor” for “An attorney”, | ||
(d) in subsection (8), by the substitution of “For the purposes of subsection (7), a document” for “A document”, and | ||
(e) by the insertion of the following subsection after subsection (8): | ||
“(9) Once the Director has registered or has refused to register under this section an instrument creating an enduring power of attorney, the donor concerned, or, with his or her written consent, his or her attorney, shall, as soon as practicable, give notice to the persons referred to in section 68(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 by the Director under section 79A.”. | ||
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Amendment of section 71 of Principal Act | ||
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58. Section 71 of the Principal Act is amended— | ||
(a) in subsection (2)— | ||
(i) by the substitution of “in such form as shall be specified by the Director under section 79A” for “in such form”, | ||
(ii) in paragraph (a), by the substitution of “60” for “60, 62”, | ||
(iii) in paragraph (b), by the deletion of “section 61 or”, and | ||
(iv) in paragraph (c), by the substitution of “lacks” for “does not lack”, | ||
(b) in subsection (3)— | ||
(i) in paragraph (b)— | ||
(I) by the substitution of “with the donor” for “with the attorney”, and | ||
(II) by the substitution of “with the attorney” for “the donor”, | ||
(ii) in paragraph (i), by the substitution of “notify the donor, the attorney and the person who made the objection” for “notify the person who made the objection”, and | ||
(iii) 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 donor, the attorney and the person who made the objection of his or her decision and refuse to register the enduring power of attorney.”, | ||
(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 instrument 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 69, whether the instrument creating the enduring power of attorney should be registered, taking the court’s declaration into account, or | ||
(ii) affirm the decision of the Director and declare that the instrument creating the enduring power of attorney should not be registered, | ||
or”. | ||
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Insertion of new sections 71A to 71D into Principal Act | ||
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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.”. | ||
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Amendment of section 72 of Principal Act | ||
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60. Section 72 of the Principal Act is amended— | ||
(a) in subsection (1), by the substitution of “attorney that have been registered by him or her under section 69” for “attorney”, | ||
(b) in subsection (2), by the substitution of “appropriate, but shall specify which instruments are, and which instruments are not, the subject of a notification under section 71A that has been accepted by the Director under section 71C” for “appropriate”, | ||
(c) 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”, | ||
(d) in subsection (4), by the substitution of “instrument creating an enduring power of attorney that is the subject of a notification under section 71A that has been accepted by the Director under section 71C, or part thereof, and any variations to the enduring power or part thereof,” for “enduring power, or part thereof,”, and | ||
(e) by the insertion of the following subsection after subsection (4): | ||
“(4A) An authenticated copy of an instrument or part thereof, and, where applicable, any variations to the instrument or part, 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 instrument or part thereof, and where applicable, any variations to that instrument or part, as at the date and time indicated on the stamp.”. | ||
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Amendment of section 73 of Principal Act | ||
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61. Section 73 of the Principal Act is amended— | ||
(a) by the substitution of the following subsection for subsection (1): | ||
“(1) An enduring power of attorney that has been registered under section 69 may be varied or revoked by the donor where the instrument creating the enduring power of attorney has not been the subject of a notification under section 71A that has been accepted by the Director under section 71C.”, | ||
(b) in subsection (2), by the substitution of “specified by the Director under section 79A” for “prescribed”, | ||
(c) in subsection (4)— | ||
(i) by the deletion of paragraphs (c) and (d), and | ||
(ii) in paragraph (e), by the substitution of “in the case of a variation, that he or she is aware of the variation” for “that he or she is aware of the variation or revocation”, | ||
(d) by the insertion of the following subsections after subsection (4): | ||
“(4A) The donor shall, as soon as practicable after the revocation of an enduring power of attorney, give notice to the attorney, in the form specified by the Director under section 79A, of the revocation. | ||
(4B) A variation of an enduring power of attorney may be made— | ||
(a) subject to paragraph (b), at any time after the expiry of 6 months from the date of the registration of the instrument creating the enduring power under section 69, and | ||
(b) where more than one variation is made, at intervals of at least 12 months from the date of the previous variation, | ||
unless an earlier variation in the case of paragraph (a), or variation at more frequent intervals in the case of paragraph (b), is agreed by the Director.”, | ||
and | ||
(e) by the deletion of subsections (5) and (6). | ||
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Insertion of new section 73A into Principal Act | ||
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62. The Principal Act is amended by the insertion of the following new section after section 73: | ||
“Provisions regarding where donor regains capacity after acceptance by Director of notification | ||
73A. (1) The following persons: | ||
(a) the donor; | ||
(b) on the written request of the donor to act on his or her behalf, the attorney; | ||
(c) on the written request of the donor to act on his or her behalf, 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); | ||
(d) on the written request of the donor to act on his or her behalf, any other person who appears to the Director to have sufficient interest or expertise in the welfare of the donor, | ||
may, after the acceptance by the Director under section 71C of a notification under section 71A— | ||
(i) request the Director to rescind his or her acceptance as a result of the donor having regained capacity, or | ||
(ii) request the Director to rescind his or her acceptance as a result of the donor having regained capacity and to recognise the revocation by the donor of the instrument creating the enduring power. | ||
(2) A request under paragraph (i) or (ii), as the case may be, of subsection (1), shall be in the form specified by the Director under section 79A and shall be accompanied by— | ||
(a) a statement by the donor that he or she understands the implications of his or her request under paragraph (i) or (ii), as the case may be, of subsection (1), | ||
(b) a statement 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 a request being made to the Director under paragraph (i) or (ii), as the case may be, of subsection (1), and | ||
(ii) has no reason to believe that the request by the donor, or on his or her behalf, is the result of fraud, coercion or undue pressure on the donor, | ||
(c) a statement by each of 2 persons, each being either— | ||
(i) a registered medical practitioner, or | ||
(ii) such other healthcare professional of a class as shall be prescribed by the Minister by regulations under section 79, | ||
that in his or her opinion the donor no longer lacks capacity in relation to the relevant decisions that are the subject of the enduring power, | ||
(d) a statement by the attorney that he or she is aware of the request being made under paragraph (i) or (ii), as the case may be, of subsection (1) and undertakes to act accordingly, and | ||
(e) in the case of a request under subsection (1)(ii), a written notice of revocation by the donor of the instrument creating the enduring power of attorney in the form specified by the Director under section 79A. | ||
(3) Where the Director receives a request under paragraph (i) or (ii), as the case may be, of subsection (1) that is in accordance with subsection (2), he or she shall— | ||
(a) review the request, | ||
(b) consult with the attorney, | ||
(c) consult with the donor, and | ||
(d) consult with such other persons as he or she considers relevant, | ||
and shall— | ||
(i) where he or she is of the view that the request is not well founded, notify the donor, the attorney and any person who made the request on behalf of the donor at the donor’s request of his or her view, and provide reasons for that view, | ||
(ii) in the case of a request under subsection (1)(i), where he or she is of the view that the request is well founded— | ||
(I) notify the donor, the attorney and any person who made the request on behalf of the donor at the donor’s request of his or her view, | ||
(II) rescind his or her acceptance of the notification, and | ||
(III) modify the Register accordingly, | ||
or | ||
(iii) in the case of a request under subsection (1)(ii), where he or she is of the view that the request is well founded— | ||
(I) notify the donor, the attorney and any person who made the request on behalf of the donor at the donor’s request of his or her view, | ||
(II) rescind his or her acceptance of the notification, | ||
(III) recognise the donor’s revocation of the instrument creating the enduring power, and | ||
(IV) modify the Register accordingly. | ||
(4) A person who receives a notification under subsection (3)(i) may, not later than 21 days after the date of issue of the notification by the Director under subsection (3)(i), appeal the notification concerned to the court. | ||
(5) Upon an appeal under subsection (4), the court may— | ||
(a) in the case of a request under subsection (1)(i), require the Director to accept the request, rescind his or her acceptance under section 71C of the notification under section 71A and make the appropriate modifications to the Register, | ||
(b) in the case of a request under subsection (1)(ii), require the Director to rescind his or her acceptance under section 71C of the notification under section 71A, recognise the donor’s revocation of the enduring power of attorney and make the appropriate modifications to the Register, | ||
(c) affirm the notification by the Director under subsection (3)(i), or | ||
(d) make such other declaration or order as it considers appropriate. | ||
(6) Once the Director has accepted or has refused to accept under this section a request under paragraph (i) or (ii), as the case may be, of subsection (1), the donor concerned, or, with his or her written consent, his or her attorney, or former attorney, as the case may be, 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. | ||
(7) Where a request under subsection (1)(i) has been accepted by the Director, the enduring power of attorney shall be deemed to be a power of attorney that has been registered under section 69 and the provisions of this Part (other than section 71) shall apply accordingly.”. | ||
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Amendment of section 74 of Principal Act | ||
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63. The Principal Act is amended by the substitution of the following section for section 74: | ||
“Resignation by attorney | ||
74. (1) An attorney— | ||
(a) may resign from his or her role as attorney where the enduring power of attorney in which he or she has been appointed attorney has not been the subject of a notification under section 71A that has been accepted by the Director under section 71C, and | ||
(b) shall notify the donor, the Director and any other attorney appointed under the enduring power of attorney concerned of his or her resignation as soon as may be after it is made. | ||
(2) Where there is more than one attorney appointed under an enduring power of attorney and one or more of them resigns under subsection (1), the instrument creating the enduring power of attorney may be the subject of a notification, and enter into force, in respect of the remaining attorney or attorneys, as the case may be, unless the enduring power expressly provides to the contrary. | ||
(3) Where an instrument creating an enduring power of attorney has been the subject of a notification under section 71A that has been accepted by the Director under section 71C, an attorney may resign from his or her role as attorney under the enduring power created by the instrument only with the consent of the court.”. | ||
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Amendment of section 75 of Principal Act | ||
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64. Section 75 of the Principal Act is amended— | ||
(a) in subsection (1), by the substitution of “a notification having been made under section 71A that has been accepted by the Director under section 71C in relation to the enduring power” for “the registration of the instrument appointing him or her as attorney”, | ||
(b) in subsection (2)— | ||
(i) by the substitution of “shall, after a notification has been made under section 71A that has been accepted by the Director under section 71C in relation to the enduring power, keep” for “shall keep”, and | ||
(ii) in paragraph (b), by the substitution of “Director, by a general visitor” for “Director”, | ||
(c) in subsection (3), by the substitution of “a notification has been made under section 71A that has been accepted by the Director under section 71C in relation to the enduring power” for “registration of the instrument appointing him or her as attorney”, | ||
(d) in subsection (4)— | ||
(i) by the substitution of “specified by the Director under section 79A” for “prescribed by regulations made under section 79”, and | ||
(ii) by the substitution of “as are specified” for “as are prescribed”, | ||
(e) by the deletion of subsection (5), | ||
(f) by the substitution of the following subsection for subsection (7): | ||
“(7) Where an attorney fails to comply with a notification under subsection (6), 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 by him or her under section 79A, 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 (7A) and following consultation with the donor (in so far as the Director considers it appropriate) and the attorney, make a determination that the attorney shall, as soon as may be or from a date specified by the Director, no longer act as attorney for the donor concerned.”, | ||
(g) by the insertion of the following subsections after subsection (7): | ||
“(7A) Where the Director has made a determination under subsection (7)(c), he or she shall notify the donor and the attorney of his or her determination, provide reasons for that determination and update the Register accordingly. | ||
(7B) A donor or an attorney who has been notified under subsection (7A) 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.”, | ||
(h) by the substitution of the following subsection for subsection (8): | ||
“(8) Pursuant to an appeal to it under subsection (7B), the court may— | ||
(a) affirm the determination of the Director, | ||
(b) declare that the attorney shall continue to act as such for the donor concerned and require the Director to update the Register accordingly, or | ||
(c) make such other declaration or order as it considers appropriate.”, | ||
and | ||
(i) by the substitution of the following subsection for subsection (9): | ||
“(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 the attorney notified the Director that the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power or the date of submission of the previous report, whichever is the later, and the date immediately preceding the date of submission of the report concerned.”. | ||
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Amendment of section 76 of Principal Act | ||
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65. Section 76 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 “attorney, or in breach of this Act” for “attorney”, | ||
(ii) in paragraph (c), by the substitution of “attorney, to vary or revoke an enduring power of attorney under section 73, to make a request under section 73A(1)(i) or to make a request and written notice of revocation under section 73A(1)(ii);” for “attorney.”, and | ||
(iii) by the insertion of the following paragraphs after paragraph (c): | ||
“(d) that the donor did not, at the time the enduring power of attorney was executed, have the capacity to make an enduring power of attorney; | ||
(e) that the donor did not, at the time the enduring power of attorney was registered, have the capacity to register an enduring power of attorney.”, | ||
(b) by the insertion of the following subsections after subsection (2): | ||
“(2A) Following the receipt of a complaint under subsection (1) or (2) 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 (2B), 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’). | ||
(2B) 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 (3)— | ||
(i) by the substitution of “The Director shall, as soon as is practicable after having formed a view under subsection (2A)” for “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 the complaint and”, | ||
(ii) in paragraph (a)— | ||
(I) by the substitution of “well founded, and, in the case of a complaint under subsection (2), notwithstanding section 12 of the Act of 1996” for “well founded”, and | ||
(II) 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 attorney regarding the role of the attorney 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 (2A), 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 (4), by the substitution of “3 months” for “21 days”, | ||
(e) in subsection (5), 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) or (2)”, | ||
(f) by the insertion of the following subsections after subsection (5): | ||
“(5A) Where subsection (3)(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. | ||
(5B) If the Director is not satisfied, following the receipt of the information or confirmation referred to in subsection (5A), 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 (3)(a) or may take such other steps as he or she considers appropriate in order to resolve the complaint.”, | ||
(g) in subsection (6)— | ||
(i) in paragraph (a), by the deletion of “or (5) ”, | ||
(ii) in paragraph (b), by the substitution of “subsection (4) or (6B)(b)” for “subsection (4)”, | ||
(iii) in paragraph (i), by the substitution of “concerned, and that the Register shall be amended accordingly” for “concerned”, and | ||
(iv) in paragraph (ii), by the substitution of “1996, and that the registration of the instrument creating the enduring power under the Act of 1996 shall be cancelled, and such cancellation shall have the same effect as if the registration had been cancelled by the High Court under the Act of 1996.” for “1996.”, | ||
(h) by the insertion of the following subsections after subsection (6): | ||
“(6A) The Director shall, in accordance with this section, investigate a complaint under subsection (1) or (2) unless in his or her opinion there has been undue delay in making the complaint. | ||
(6B) A decision by the Director under subsection (6A) 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.”, | ||
(i) in subsection (7), by the substitution of “section 95” for “sections 95 and 96”, and | ||
(j) in subsection (8), by the substitution of “sections 95 and 99” for “sections 95, 96 and 99”. | ||
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Amendment of section 77 of Principal Act | ||
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66. Section 77(3) of the Principal Act is amended— | ||
(a) by the substitution of “the subject of a notification under section 71A that has been accepted by the Director under section 71C” for “registered”, and | ||
(b) by the substitution of the following paragraph for paragraph (c): | ||
“(c) consent to a resignation by the attorney of his or her role as attorney under the enduring power of attorney.”. | ||
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Amendment of section 78 of Principal Act | ||
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67. Section 78 of the Principal Act is amended— | ||
(a) in subsection (1)— | ||
(i) in paragraph (a), by the substitution of “section 73A” for “section 73(6) ”, and | ||
(ii) in paragraph (b), by the substitution of “disqualified, dies, resigns from his or her role as attorney or is unable to act” for “disqualified”, | ||
and | ||
(b) by the substitution of the following subsection for subsection (2): | ||
“(2) In the circumstances described in subsection (1)(b), where there is at least one attorney remaining due to— | ||
(a) the donor having appointed more than one attorney under an enduring power of attorney, or | ||
(b) the donor having specified a person to act as attorney for him or her in the event that the attorney on whom the authority is conferred is disqualified, dies, resigns from his or her role as attorney or is unable to act, | ||
the Director shall not remove the instrument from the Register, but shall note on the Register in connection with the power concerned the disqualification, death, resignation or inability to act, as the case may be.”. | ||
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Amendment of section 79 of Principal Act | ||
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68. The Principal Act is amended by the substitution of the following section for section 79: | ||
“Regulations - Part 7 | ||
79. (1) The Minister may make regulations for the purpose of giving this Part full effect. | ||
(2) Without prejudice to the generality of subsection (1), the Minister shall, having regard to the requirements of this Part, prescribe by regulations the following matters: | ||
(a) the class of healthcare professionals under sections 60(1)(c)(ii), 71A(2)(b)(ii) and 73A(2)(c)(ii); | ||
(b) the bodies or classes of persons under subsections (3)(a) and (4)(a) of section 72 who may inspect the Register and receive an authenticated copy of an enduring power of attorney; | ||
(c) the safeguards that shall apply in relation to consent and data protection in the conduct of health and social care research involving relevant persons; | ||
(d) the fees to be paid in connection with the operation of Part 7, including 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) a notification to the Director by an attorney under section 71A, | ||
(iv) an objection under section 71B(1), | ||
(v) the issue of an authenticated copy of an enduring power of attorney or part thereof under section 72(4), | ||
(vi) the variation of an enduring power of attorney, and | ||
(vii) the revocation of an enduring power of attorney, | ||
and | ||
(e) the circumstances in which the fees referred to in paragraph (d) may be waived by the Director. | ||
(3) In prescribing the matters referred to in paragraphs (d) and (e) of subsection (2), the Minister shall take into account the nature of the matter for which the fee is being charged, the costs associated with that matter and the need to ensure the protection of the assets and funds of a donor.”. | ||
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Insertion of new section 79A into Principal Act | ||
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69. The Principal Act is amended by the insertion of the following section after section 79: | ||
“Matters to be specified by Director in relation to enduring powers of attorney | ||
79A. (1) The Director may, with the consent of the Minister, specify in writing the following: | ||
(a) the form of an instrument creating an enduring power of attorney; | ||
(b) the form of application under section 68(2) to register an instrument; | ||
(c) the form of notice under section 68(3) of an application to register an instrument; | ||
(d) the form of notice by a donor, or, with his or her written consent, his or her attorney, under section 69(9); | ||
(e) the form of an objection under section 71(2) to the registration of an instrument; | ||
(f) the form under section 71A(1) to notify the Director 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 registered by the donor; | ||
(g) the form of notice under section 71A(3) of a notification to the Director; | ||
(h) the form of an objection under section 71B to the acceptance of a notification by the Director; | ||
(i) the form of notice by an attorney under section 71C(9); | ||
(j) the form of variation or revocation under section 73(2) of an enduring power of attorney; | ||
(k) the form of a request to the Director under section 73A(1)(i); | ||
(l) the form of a request to the Director under section 73A(1)(ii) and the accompanying written notice of revocation to which section 73A(2)(e) refers; | ||
(m) the form of notice under section 73(4A) of revocation of an enduring power of attorney; | ||
(n) the form of notice under section 73A(6); | ||
(o) the form of a report under section 75 to be submitted by an attorney to the Director, | ||
and the forms may contain such further information as the Director considers appropriate. | ||
(2) When making a specification under subsection (1), the Director shall— | ||
(a) take into account the guiding principles specified in section 8 and the other provisions of this Act, | ||
(b) ensure that the forms are easy to read and to understand, | ||
(c) ensure that the forms are made available in accessible formats, and | ||
(d) take into account the different persons or classes or persons that will be using or reading the forms.”. | ||
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Amendment of section 80 of Principal Act | ||
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70. Section 80(2) of the Principal Act is amended by the substitution of “such an application, or in a notification to the Director under section 71A or in connection with such a notification,” for “such an application,”. | ||
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Amendment of section 81 of Principal Act | ||
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71. Section 81 of the Principal Act is amended— | ||
(a) in subsection (1), by the substitution of “subsections (2) to (8) of section 76” for “sections 76(2), 76(3), 76(4), 76(5), 76(6), 76(7) and 76(8)”, and | ||
(b) by the insertion of the following subsection after subsection (1): | ||
“(1A) Notwithstanding subsection (1), an application may, where the Minister has made regulations under paragraph (b), be made for the registration of an instrument creating an enduring power under the Act of 1996 that has not been registered under section 10 of that Act and— | ||
(a) sections 68 and 69 shall not apply in relation to the application, | ||
(b) the Minister may make regulations to provide for the registration process for the instrument, and to specify any requirements for registration, and | ||
(c) the Director may waive any or all fees under this Part in connection with that registration.”. | ||
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Amendment of section 82 of Principal Act | ||
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72. Section 82 of the Principal Act is amended by the deletion of the definition of “treatment”. | ||
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Amendment of section 84 of Principal Act | ||
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73. Section 84 of the Principal Act is amended— | ||
(a) in subsection (12)— | ||
(i) in paragraph (a), by the substitution of “advance healthcare directive, or any revocation or alteration thereof,” for “advance healthcare directive”, and | ||
(ii) by the substitution of the following paragraph for paragraph (b): | ||
“(b) subject to subsection (12A), requiring the Director to establish and maintain a register (in this section referred to as the ‘register’) of advance healthcare directives and any revocations or alterations thereof, that are so notified to him or her and that are made in accordance with this section.”, | ||
and | ||
(b) by the insertion of the following subsections after subsection (12): | ||
“(12A) The Director shall arrange for the review of advance healthcare directives, or any revocation or alteration thereof, that are notified to him or her in accordance with regulations made under subsection (12), in order to verify that they comply with this section and once compliance has been so verified, such directives, revocations or alterations may be included in the register. | ||
(12B) The register shall be in such form as the Director considers appropriate. | ||
(12C) The Director shall make such details of the register as he or she shall specify available for inspection— | ||
(a) by or on behalf of healthcare professionals, where such inspection is necessary to obtain information about a person’s treatment choices for the purpose of the treatment of the person, | ||
(b) by a designated healthcare representative of a person who has made an advance healthcare directive, in relation to that advance healthcare directive, and | ||
(c) by or on behalf of any other person who, on having provided a reasoned request to the Director, satisfies the Director that he or she has a legitimate interest, having regard to the purposes of this Part, in inspecting those details of the register. | ||
(12D) The Director may issue an authenticated copy of an advance healthcare directive to— | ||
(a) healthcare professionals, where receipt of an authenticated copy is necessary to obtain information about a person’s treatment choices for the purpose of the treatment of the person, | ||
(b) a designated healthcare representative of a person who made an advance healthcare directive, and | ||
(c) any other person who, on having provided a reasoned request to the Director, satisfies the Director that he or she has a legitimate interest, having regard to the purposes of this Part, in receiving the authenticated copy. | ||
(12E) 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. | ||
(12F) An authenticated copy of an advance healthcare directive, and, where applicable, any alterations thereof, that is issued by the Director under subsection (12D) 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 directive, and, where applicable, any alterations thereof, as at the date and time indicated on the stamp.”. | ||
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Amendment of section 85 of Principal Act | ||
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74. Section 85 of the Principal Act is amended— | ||
(a) by the deletion of subsection (6), and | ||
(b) in subsection (7), by the substitution of the following paragraph for paragraph (a): | ||
“(a) Subject to subsections (1) to (5) and paragraph (b), an advance healthcare directive shall, insofar as provided for by this Part, be complied with unless, at the time when it is proposed to treat the directive-maker— | ||
(i) his or her treatment is regulated by Part 4 of the Act of 2001, other than where he or she is detained under that Act on the grounds that he or she is suffering from a mental disorder within the meaning of section 3(1)(b) of that Act, or | ||
(ii) he or she is the subject of a conditional discharge order under section 13A of the Criminal Law (Insanity) Act 2006 , | ||
and sections 56, 57, 59 and 60 of the Act of 2001 shall be construed accordingly.”. | ||
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Amendment of section 88 of Principal Act | ||
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75. Section 88(4) of the Principal Act is amended by the substitution of the following for paragraph (b): | ||
“(b) The Director— | ||
(i) shall review any complaint referred to in paragraph (a) and shall, if satisfied that the complaint has substance, conduct an investigation into the matter, or | ||
(ii) may, notwithstanding that no complaint has been received, on his or her own initiative conduct an investigation in relation to the way in which a designated healthcare representative is exercising his or her relevant powers.”. | ||
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Amendment of section 89 of Principal Act | ||
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76. Section 89(3)(b)(ii) of the Principal Act is amended by the substitution of “her pregnancy” for “the unborn”. | ||
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Amendment of section 92 of Principal Act | ||
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77. Section 92(3) of the Principal Act is amended by the substitution of the following paragraph for paragraph (h): | ||
“(h) an attorney or an attorney under the Act of 1996 for the directive-maker,”. | ||
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Amendment of section 95 of Principal Act | ||
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78. Section 95 of the Principal Act is amended— | ||
(a) in subsection (1), by the insertion of the following paragraph after paragraph (j): | ||
“(ja) to make recommendations to the Minister for Health on any matter relating to the operation of Part 8;”, | ||
(b) in subsection (3)— | ||
(i) by the substitution of “Save where the Minister is empowered under this Act to prescribe fees by regulations, the Director” for “The Director”, and | ||
(ii) by the substitution of “specify” for “prescribe by regulations”, | ||
(c) in subsection (4), by the substitution of “specify” for “prescribe”, and | ||
(d) by the substitution of the following subsection for subsection (5): | ||
“(5) In carrying out his or her functions, the Director may— | ||
(a) consult with any person who has any functions in relation to the care or treatment of a relevant person, and | ||
(b) request information relating to the carrying out of functions under this Act from decision-making assistants, co-decision-makers, decision-making representatives, attorneys, designated healthcare representatives or relevant persons.”. | ||
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Insertion of new sections 95A and 95B into Principal Act | ||
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79. The Principal Act is amended by the insertion of the following sections after section 95: | ||
“Regulations providing for disclosure of certain data by Director | ||
95A. (1) The Minister, following consultation with such other Minister of the Government as he or she considers appropriate and with the Data Protection Commission, may make regulations to provide for the disclosure by the Director of information lawfully obtained by him or her, which may include personal data in relation to a relevant person or another person, to a public authority or a public body specified under subsection (2)(b), and in particular may make regulations relating to where— | ||
(a) such disclosure is necessary to protect the vital interests of the relevant person or another person, | ||
(b) such disclosure is necessary to protect and safeguard the interests of a relevant person or another person in relation to his or her treatment or care, | ||
(c) such disclosure is necessary to protect and safeguard the assets of a relevant person, or | ||
(d) the Director comes into possession of information that discloses the commission or possible commission of a criminal offence. | ||
(2) Regulations made under subsection (1) shall specify— | ||
(a) the type of information that the Director may disclose, | ||
(b) the public authorities or public bodies to which the Director may disclose the information, | ||
(c) the purpose or purposes of the disclosure of the information, and | ||
(d) the conditions in accordance with which the information is to be disclosed. | ||
(3) Without prejudice to the generality of subsection (1), regulations made thereunder may provide for the sharing of special categories of personal data or data relating to the prevention, detection, investigation or prosecution of criminal offences in relation to a relevant person where this is necessary for reasons of substantial public interest, in which case the regulations shall identify— | ||
(a) the substantial public interest concerned, and | ||
(b) the suitable and specific measures to be taken to safeguard the fundamental rights and freedoms of data subjects in processing the personal data which is authorised by the regulations. | ||
(4) For the purposes of subsection (3)(b), subsections (2) to (8) of section 36 of the Data Protection Act 2018 shall apply in like manner to regulations to which subsection (3) of this section refers as they apply to regulations made under the said section 36. | ||
(5) The Minister, when making regulations under subsection (1), shall have regard to the need for the protection of individuals with regard to the processing of their personal data, and without prejudice to the generality of that need, have regard to— | ||
(a) the nature, scope and purposes of the processing, | ||
(b) the nature of the substantial public interest concerned, | ||
(c) any benefits likely to arise for the data subjects concerned, | ||
(d) any risks arising for the rights and freedoms of such subjects, and | ||
(e) the likelihood of any such risks arising and the severity of such risks. | ||
(6) Regulations made under subsection (1) shall— | ||
(a) respect the essence of the right to data protection, and | ||
(b) enable processing of such data only in so far as is necessary and proportionate to the aim sought to be achieved. | ||
(7) Regulations made under subsection (1) may, in specifying the conditions in accordance with which the information referred to in subsection (2) is to be disclosed under paragraph (d) of the said subsection (2), provide for information to be disclosed under and in accordance with a data sharing agreement within the meaning of section 2 of the Data Sharing and Governance Act 2019 . | ||
(8) In this section— | ||
‘Act of 2018’ means the Data Protection Act 2018 ; | ||
‘information’ includes data; | ||
‘personal data’ has the same meaning as it has in section 69(1) of the Act of 2018; | ||
‘public authority’ has the same meaning as it has in section 2(1) of the Act of 2018; | ||
‘public body’ has the same meaning as it has in section 2(1) of the Act of 2018; | ||
‘special categories of personal data’ has the same meaning as it has in section 2(1) of the Act of 2018. | ||
Documents in electronic form | ||
95B. (1) The Director may specify— | ||
(a) that a relevant document, or class of relevant documents, may— | ||
(i) be in electronic form, | ||
(ii) be in a format that he or she may specify, and | ||
(iii) be sent to him or her, or submitted to him or her, in electronic form, | ||
and | ||
(b) the circumstances in which a specification under paragraph (a) shall or shall not apply. | ||
(2) The Director may certify a copy of— | ||
(a) a relevant document transmitted or received by the Director in electronic form in accordance with this section, or | ||
(b) a relevant document kept by the Director in electronic form where the relevant document was transmitted or received by the Director otherwise than in an electronic form and an electronic copy was made of the document, | ||
to be a true copy of that document. | ||
(3) In this section— | ||
‘electronic form’ means information that is generated, communicated, processed, sent, received, recorded, stored or displayed by electronic means and is capable of being used to make a legible copy or reproduction of that communicated information but does not include information communicated in the form of speech and such electronic means includes electrical, digital, magnetic, optical electro-magnetic, biometric, photonic and any other form of related technology; | ||
‘relevant document’ means— | ||
(a) an application, notice, notification, objection or complaint under any provision of this Act, | ||
(b) any document required to be provided by or to the Director in connection with an application, notice, notification, objection or complaint referred to in paragraph (a), | ||
(c) a report by or to the Director under this Act, or | ||
(d) any other document provided by or to the Director under this Act.”. | ||
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Amendment of section 96 of Principal Act | ||
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80. Section 96 of the Principal Act is amended— | ||
(a) by the substitution of the following subsection for subsection (1): | ||
“(1) This section shall apply to an investigation carried out by the Director under section 15, 30, 47, 76 or 88(4) and a reference in this section to an investigation is a reference to an investigation to which this section applies.”, | ||
(b) in subsection (2), by the substitution of “The Director may, when conducting an investigation” for “The Director may, to enable him or her to perform his or her functions under subsection (1)”, | ||
(c) in subsection (4), by the substitution of “complaints, or of investigations on his or her own initiative,” for “complaints”, | ||
(d) in subsection (5), by the substitution of “complaints, or to investigations on his or her own initiative,” for “complaints”, | ||
(e) in subsection (7), by the substitution of the following paragraph for paragraph (b): | ||
“(b) hinders or obstructs— | ||
(i) the Director in the carrying out of an investigation, or | ||
(ii) one or more of the Director’s staff to whom the Director has delegated one or more functions under section 98(2) with regard to the carrying out of an investigation,”, | ||
and | ||
(f) by the insertion of the following subsections after subsection (7): | ||
“(8) The Director may, if he or she thinks fit, pay to a witness summoned to attend before the Director under subsection (2)— | ||
(a) sums in respect of travelling and subsistence expenses properly incurred by the witness, or | ||
(b) allowances by way of compensation for loss of his or her time, | ||
that shall be calculated in accordance with such guidance and be paid subject to such conditions as may be determined by the Minister with the consent of the Minister for Public Expenditure and Reform. | ||
(9) In this section, ‘investigation’ includes a review referred to in sections 15(1A), 30(1A), 47(1A), 76(2A) and 88(4)(b)(i).”. | ||
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Insertion of new sections 96A and 96B into Principal Act | ||
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81. The Principal Act is amended by the insertion of the following sections after section 96: | ||
“Temporary prohibition order | ||
96A.(1) Where the Director considers, while he or she is conducting an investigation under section 15, 30, 47 or 76, as the case may be, that an immediate prohibition of a decision-making assistant, co-decision‑maker, decision-making representative or attorney for a relevant person from acting as such is necessary because of an immediate risk of harm to the relevant person or the property of the relevant person, he or she may make an application to the court for a temporary prohibition order under subsection (3) pending the resolution, by the Director or the court, as the case may be, of his or her investigation. | ||
(2) Where an application under subsection (1) for an order is made ex parte, it shall be grounded on an affidavit sworn by the Director or by a person to whom that function is delegated under section 98(2). | ||
(3) The court may, on an application under subsection (1), make an order (in this section referred to as a ‘temporary prohibition order’) prohibiting the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned from acting as such for the relevant person concerned for a period of time, or until the occurrence of an event, specified in the order where, having regard to the circumstances of the case, the court considers it necessary to do so for the protection of the relevant person or the property of the relevant person. | ||
(4) An order under this section— | ||
(a) may be made ex parte where, having regard to the circumstances of the particular case, the court considers it necessary or expedient to do so in the interests of justice, and | ||
(b) where it is made ex parte shall be for such period, not exceeding 14 working days, as is specified in the order unless on application by the Director and on notice to the relevant person concerned and the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned, as the case may be, the temporary prohibition order is confirmed within that period by order of the court. | ||
(5) Where a temporary prohibition order is made, the Director shall, as soon as is practicable, serve a copy of the order and of the affidavit referred to in subsection (2) on the relevant person concerned, the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned and on any other persons identified by the Director and approved by the court. | ||
(6) A temporary prohibition order— | ||
(a) shall take effect from the date of the service of a copy of the order referred to in subsection (5) on the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned, | ||
(b) subject to subsection (4), shall have effect for the period specified in the order, or on the occurrence of an event to which section 15, 30, 47 or 76, as the case may be, refers, and specified by the court in the order, and | ||
(c) subject to subsection (4), may contain such further directions or conditions as the court considers appropriate, including regarding the variation, renewal or discharge of the order. | ||
(7) During the period that a temporary prohibition order is in effect— | ||
(a) where the order is in relation to a decision-making assistant, the relevant person may appoint another decision-making assistant for that period or otherwise, | ||
(b) where the order is in relation to a co-decision-maker, the relevant person may appoint another co-decision-maker for that period or otherwise, | ||
(c) where the order is in relation to a decision-making representative, any relevant decisions that are required to be made during that period may be made by order of the court or, notwithstanding section 38(1), by a decision-making representative appointed by the court by order under section 38(2)(b) on behalf of the relevant person, or | ||
(d) where the order is in relation to an attorney and there is no other attorney appointed by the donor under the enduring power of attorney who may make any relevant decisions that are required to be made during that period, any such relevant decisions may be made by order of the court or, notwithstanding section 38(1), by a decision-making representative appointed by the court by order under section 38(2)(b) on behalf of the relevant person. | ||
(8) An application under subsection (1) shall be heard otherwise than in public unless the court considers it appropriate to hear the application in public. | ||
(9) A notice document that is required to be served on a person under this section shall be addressed to the person concerned by name and shall be served on the person in one of the following ways: | ||
(a) by delivering it to the person; | ||
(b) by leaving it at the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, at that address; | ||
(c) by sending it by post in a prepaid registered letter or by any other form of recorded delivery service to the address referred to in paragraph (b); or | ||
(d) by electronic means, in a case in which the person has given notice in writing to the person serving the document concerned of his or her consent to the document (or documents of a class to which the document belongs) being served on him or her in that manner. | ||
(10) For the purposes of this section, a company within the meaning of the Companies Act 2014 is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business. | ||
Power of Director to specify form of signature | ||
96B. The Director may specify the form of signature (including a signature in electronic format) of any person, including signatories and witnesses, to an agreement, instrument, directive or other document under this Act, including a decision-making assistance agreement, a co-decision-making agreement, an instrument creating an enduring power of attorney, an advance healthcare directive or any document specified by the Director, or prescribed by the Minister by regulations, under this Act.”. | ||
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Amendment of section 97 of Principal Act | ||
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82. Section 97(2) of the Principal Act is amended by the deletion of “for Health”. | ||
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Amendment of section 98 of Principal Act | ||
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83. Section 98 of the Principal Act is amended— | ||
(a) in subsection (4), by the substitution of “Minister after consultation with the Minister for Health and” for “Minister for Health”, | ||
(b) in subsection (5), by the substitution of “Minister after consultation with the Minister for Health and” for “Minister for Health given”, | ||
(c) in subsection (6), by— | ||
(i) the substitution of “Director” for “Mental Health Commission”, and | ||
(ii) the substitution of “he or she” for “the Director”, | ||
and | ||
(d) in subsection (7), by— | ||
(i) the substitution of “Minister” for “Minister for Health”, and | ||
(ii) the substitution of “Decision Support Service” for “Mental Health Commission”. | ||
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Amendment of section 99 of Principal Act | ||
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84. Section 99 of the Principal Act is amended— | ||
(a) by the substitution of the following subsection for subsection (2): | ||
“(2) A special visitor shall be— | ||
(a) a registered medical practitioner who has particular knowledge, expertise and experience as respects the capacity of persons, or | ||
(b) 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, | ||
who may assist the Director in performing his or her supervisory function referred to in section 95(1)(e), in performing his or her functions under section 96, or in undertaking assessments of capacity where the Director brings an application under Part 5 in relation to a declaration of capacity.”, | ||
(b) in subsection (3), by the substitution of “section 95(1)(e) and in performing his or her functions under section 96” for “section 95(1)(e)”, | ||
(c) in subsection (4), by the substitution of “Minister” for “Minister for Health”, and | ||
(d) in subsection (5)— | ||
(i) in paragraph (a), by the substitution of “person,” for “person, or”, | ||
(ii) in paragraph (b), by the substitution of “section 48, or” for “section 48”, and | ||
(iii) by the insertion of the following paragraph after paragraph (b): | ||
“(c) any other person specified in the direction (who may include a family member or a provider of a service) who the Director considers is necessary to visit to obtain further information about the relevant person,”. | ||
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Amendment of section 100 of Principal Act | ||
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85. Section 100 of the Principal Act is amended by the insertion of the following subsections after subsection (12): | ||
“(13) Where a court friend has been appointed for a ward of court by the Director pursuant to a direction of the wardship court under section 54A(2), subsections (2) to (11) of this section shall apply, with all necessary modifications, with regard to the court friend, and in particular— | ||
(a) a reference in those subsections to a relevant person shall be construed as a reference to the ward of court, and | ||
(b) a reference in those subsections to Part 5 shall be construed as a reference to Part 6. | ||
(14) Subsections (2) to (10) shall, with all necessary modifications, apply to a person referred to in section 54A as a ‘court assistant’ as they apply, in accordance with subsection (13), to a court friend to which the said subsection (13) refers.”. | ||
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Amendment of section 101 of Principal Act | ||
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86. Section 101 of the Principal Act is amended by the substitution of the following paragraph for paragraph (a): | ||
“(a) decision-making representatives for— | ||
(i) relevant persons in the circumstances to which section 38(7) applies, and | ||
(ii) persons the subject of a discharge from wardship under section 55(4)(ii) or 55(5)(b), as the case may be, in the circumstances to which section 38(7) applies by virtue of section 55(6),”. | ||
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Amendment of section 102 of Principal Act | ||
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87. Section 102 of the Principal Act is amended— | ||
(a) by the substitution of the following subsection for subsection (2): | ||
“(2) The Mental Health Commission shall cause a copy of a report submitted to it pursuant to subsection (1) to be forwarded to the Minister for Health and the Minister as soon as may be, but not later than 3 months after the date on which the Commission received the report.”, | ||
(b) in subsection (3)— | ||
(i) by the substitution of “Mental Health Commission shall” for “Director shall”, | ||
(ii) by the substitution of “Minister and the Minister for Health” for “Mental Health Commission”, and | ||
(iii) in paragraph (c), by the substitution of “Mental Health Commission considers would improve the effectiveness of the Director” for “Director thinks would improve his or her effectiveness”, | ||
(c) by the deletion of subsection (4), | ||
(d) in subsection (5), by the substitution of “Mental Health Commission shall submit to the Minister” for “Director shall submit to the Mental Health Commission”, | ||
(e) in subsection (6)— | ||
(i) by the deletion of “other”, and | ||
(ii) by the substitution of “Commission, the Minister and” for “Commission and”, in both places it occurs, | ||
and | ||
(f) in subsection (7), by the deletion of “for Health”. | ||
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Amendment of section 103 of Principal Act | ||
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88. Section 103 of the Principal Act is amended— | ||
(a) in subsection (2)— | ||
(i) in paragraph (i), by the substitution of “on supporting decision-making by relevant persons and, where appropriate, assessing” for “assessing”, | ||
(ii) by the insertion of the following paragraph after paragraph (x): | ||
“(xa) the guidance of committees and any other persons assisting a ward in court;”, | ||
and | ||
(iii) by the substitution of the following paragraph for paragraph (xi): | ||
“(xi) the guidance of other persons, including healthcare professionals, legal practitioners and financial service providers, in relation to their dealings with— | ||
(I) relevant persons, or | ||
(II) wards of court in relation to proceedings under Part 6;”, | ||
(b) in subsection (3)— | ||
(i) in paragraph (f), by the substitution of “professionals;” for “professionals.”, and | ||
(ii) by the insertion of the following paragraph after paragraph (f): | ||
“(g) persons who have a disability within the meaning of section 2 (1) of the Disability Act 2005 , their representative organisations, or any other persons with expertise in matters pertaining to disability.”, | ||
(c) in subsection (5)(a), by the deletion of “and the Minister for Health”, and | ||
(d) by the insertion of the following subsection after subsection (15): | ||
“(15A) To the extent that a code of practice published or approved of under subsection (2) is for the purposes of court friends, the provisions of the code shall, with all necessary modifications, apply to a person referred to in section 54A as ‘a court assistant’ in respect of a ward of court as those provisions apply to a court friend for a ward of court.”. | ||
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Amendment of section 107 of Principal Act | ||
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89. Section 107 of the Principal Act is amended by the insertion of the following subsection after subsection (3): | ||
“(3A) A person detained pursuant to a direction made under subsection (3) for a period exceeding 3 months (in this subsection referred to as a ‘renewal period’) or his or her committee or legal representative, may, after a period of 3 months has expired from the date the direction was made but before the expiry of the renewal period, make an application to have the person’s detention reviewed by the wardship court under subsection (3) and no more than one such application may be made in each renewal period.”. | ||
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Amendment of section 108 of Principal Act | ||
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90. Section 108 of the Principal Act is amended by the insertion of the following subsection after subsection (3): | ||
“(3A) A person detained pursuant to a direction made under subsection (3) for a period exceeding 3 months (in this subsection referred to as a ‘renewal period’) or his or her committee or legal representative, may, after a period of 3 months has expired from the date the direction was made but before the expiry of the renewal period, make an application to have the person’s detention reviewed by the wardship court under subsection (3) and no more than one such application may be made in each renewal period.”. | ||
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Amendment of section 136 of Principal Act | ||
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91. Section 136 of the Principal Act is amended— | ||
(a) by the substitution of “Act of 2001, unless the patient is a person detained under the Act of 2001 on the grounds that he or she is suffering from a mental disorder within the meaning of section 3(1)(b) of that Act” for “Act of 2001”, and | ||
(b) by the insertion of the following subsection after subsection (1): | ||
“(1A) Subject to subsection (1)— | ||
(a) a reference in section 56, 57, 59 or 60 of the Act of 2001 to a ‘patient’ in the context of the patient giving his or her consent shall include a decision-making representative appointed in respect of the patient and in respect of a matter to which the relevant consent relates, and | ||
(b) a patient shall not be regarded as incapable or unable to give consent for the purposes of section 57, 59 or 60, as the case may be, of the Act of 2001 where a decision-making representative is appointed in respect of the patient and in respect of a matter to which the relevant consent relates.”. | ||
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Amendment of section 139 of Principal Act | ||
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92. Section 139 of the Principal Act is amended by the insertion of the following subsection after subsection (1): | ||
“(1A) Subsection (1) shall, with all necessary modifications, apply to a review under Part 6 by the wardship court of the capacity of a ward as it applies to an application under Part 5, 7 or 8 to the court or High Court in respect of the relevant person the subject of the application.”. | ||
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Amendment of section 143 of Principal Act | ||
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93. Section 143 of the Principal Act is amended by the deletion of paragraphs (b) and (d). | ||
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Amendment of section 145 of Principal Act | ||
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94. Section 145 of the Principal Act is amended by the substitution of “attorney or designated healthcare representative for a relevant person” for “attorney for the relevant person, or designated healthcare representative”. | ||
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Amendment of section 146 of Principal Act | ||
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95. The Principal Act is amended by the substitution of the following section for section 146: | ||
“Review of this Act | ||
146. The Minister, after consultation with the Minister for Health shall, not later than 5 years after the date on which section 95 of the Assisted Decision-Making (Capacity) (Amendment) Act 2022 comes into operation, conduct a review of the operation and effectiveness of the Assisted Decision-Making (Capacity) Act 2015 and shall, not later than 6 months after the end of that period of 5 years, or on the completion of the review, whichever is the earlier, prepare a report, in writing, of the findings of the review and of the conclusions drawn from those findings and cause copies of the report to be laid before each House of the Oireachtas.”. | ||
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PART 3 Amendments to Other Enactments | ||
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Amendment of Juries Act 1976 | ||
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96. The Juries Act 1976 is amended— | ||
(a) in section 7— | ||
(i) by the designation of that section as subsection (1), and | ||
(ii) by the insertion of the following subsection: | ||
“(2) A person who is deaf shall not be ineligible for jury service by reason only of his or her requiring the services of a sign language interpreter for the purpose of enabling him or her to perform the duties of a juror effectively.”, | ||
and | ||
(b) under the heading “Other persons” in Part I of the First Schedule, by the substitution of: | ||
“A person who does not, in the opinion of the court, have sufficient mental or intellectual capacity to serve as a juror.” | ||
for | ||
“A person who suffers or has suffered from mental illness or mental disability and on account of that condition either— | ||
(a) is resident in a hospital or other similar institution, or | ||
(b) regularly attends for treatment by a medical practitioner.”. | ||
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Amendment of Electoral Act 1992 | ||
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97. Section 41 of the Electoral Act 1992 is amended by the deletion of paragraph (i). | ||
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Provisions regarding >Courts and Court Officers Act 1995 | ||
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98. (1) Section 10 of the Courts and Court Officers Act 1995 is amended by the substitution of “40” for “37”. | ||
(2) Subject to subsection (3), paragraph 1 of the Second Schedule to the Courts and Court Officers Act 1995 is amended by the deletion of subparagraphs (xxxvi) and (xxxix). | ||
(3) Subsection (2) shall not have effect in relation to proceedings under section 21 of the Nursing Homes Support Scheme Act 2009 that are in being at the date of the coming into operation of this section. | ||
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Provisions regarding Credit Union Act 1997 | ||
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99. (1) The Act of 1997 is amended— | ||
(a) by the repeal of section 24, and | ||
(b) in section 25, by the deletion of “or section 24”. | ||
(2) The amendments effected by subsection (1) shall not apply where a statement has been furnished under section 24(2) of the Act of 1997 before the date of the coming into operation of this section but the payment concerned has not been made before that date. | ||
(3) Where, before the date of the coming into operation of this section, ongoing payments are being made under section 24 of the Act of 1997 in respect of the same statement, the payments may, notwithstanding subsection (1), continue to be made for a period of 6 months from that date. | ||
(4) In this section, “Act of 1997” means the Credit Union Act 1997 . | ||
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Provisions regarding National Disability Authority Act 1999 | ||
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100. (1) The Act of 1999 is amended— | ||
(a) in section 8(2), by the insertion of the following paragraph after paragraph (c): | ||
“(ca) to provide information and advice to the Irish Human Rights and Equality Commission, including the development and provision of statistical information if required, in order to assist it in carrying out its functions under section 10 (2)(ha) of the Irish Human Rights and Equality Commission Act 2014 ;”, | ||
(b) in section 27— | ||
(i) by the insertion of the following subsection after subsection (1): | ||
“(1A) A member of staff appointed to the Authority on or after the date of commencement of section 100(1)(b)(i) of the Assisted decision-making (Capacity) (Amendment) Act 2022 shall be a civil servant in the Civil Service of the State.”, | ||
and | ||
(ii) by the insertion of the following subsection after subsection (2): | ||
“(2A) The Authority shall be the appropriate authority (within the meaning of the Public Service Management (Recruitment and Appointments) Act 2004 and the Civil Service Regulation Acts 1956 to 2005) in relation to the members of its staff (including the Director).”, | ||
and | ||
(c) by the insertion of the following sections after section 27: | ||
“Further provisions regarding staff of Authority | ||
27A. (1) (a) A person who immediately before the date of the coming into operation of section 100(1)(c) of the Assisted Decision-Making (Capacity) (Amendment) Act 2022 (in this section referred to as the ‘commencement date’) was a member of the staff of the Authority shall, on that day, continue to be a member of the staff of the Authority and shall hold a position in the Civil Service of the State. | ||
(b) The Director of the Authority shall, on the commencement date, hold a position in the Civil Service of the State. | ||
(2) Save in accordance with a collective agreement negotiated with a recognised trade union or staff association and approved by the Minister with the consent of the Minister for Public Expenditure and Reform, a person referred to in subsection (1) shall on the commencement date be subject to such terms and conditions of service, including terms and conditions relating to remuneration, as are not less favourable than the terms and conditions of service, including terms and conditions relating to remuneration, to which the person was subject immediately before that date. | ||
(3) The previous service in the Authority of a person referred to in subsection (1) shall be reckonable for the purposes of, but subject to any exceptions or exclusions in, the following: | ||
(a) the Redundancy Payments Acts 1967 to 2014; | ||
(c) the Protection of Employees (Fixed-Term Work) Act 2003 ; | ||
(d) the Organisation of Working Time Act 1997 ; | ||
(e) the Terms of Employment (Information) Acts 1994 to 2014; | ||
(f) the Minimum Notice and Terms of Employment Acts 1973 to 2005; | ||
(g) the Unfair Dismissals Acts 1977 to 2015; | ||
(h) the Maternity Protection Acts 1994 and 2004; | ||
(i) the Parental Leave Acts 1998 to 2019; | ||
(j) the Adoptive Leave Acts 1995 and 2005; | ||
(k) the Carer’s Leave Act 2001 ; | ||
(l) the Paternity Leave and Benefit Act 2016 ; | ||
(m) the Parent’s Leave and Benefit Act 2019 . | ||
(4) Subject to subsection (5), any superannuation benefits awarded to or in respect of a person referred to in subsection (1) and the terms relating to those benefits shall be no less favourable than those applicable to or in respect of that person immediately before the commencement date. | ||
(5) Subsection (4) shall not apply in respect of a provision in a scheme or arrangement in relation to superannuation in respect of which the consent or approval of the Minister for Finance, the Minister for Public Expenditure and Reform or any other Minister of the Government was required by or under any enactment but not obtained. | ||
(6) The pension payments and other superannuation liabilities of the Authority in respect of the persons referred to in subsection (1) become on the commencement date the liabilities of the Minister for Public Expenditure and Reform. | ||
(7) A person referred to in subsection (1) shall be subject to, and employed in accordance with, the Civil Service Regulation Acts 1956 to 2005 and the Ethics in Public Office Acts 1995 and 2001. | ||
(8) In this section, ‘recognised trade union or staff association’ means a trade union or staff association recognised by the Minister for the purposes of negotiations that are concerned with the remuneration or conditions of employment, or the working conditions of employees. | ||
Further provisions regarding superannuation liabilities of Authority | ||
27B. (1) A person who, immediately before the date of the coming into operation of section 100(1)(c) of the Assisted Decision-Making (Capacity) (Amendment) Act 2022 (in this section referred to as the ‘commencement date’), was a retired or deceased member of— | ||
(a) the staff of the Authority, | ||
(b) the staff of the Board, or | ||
(c) the staff of another person, body or authority, and in relation to whom certain superannuation liabilities are, immediately before the commencement date, being paid by the Authority, | ||
shall, on and from that date, be deemed to be a retired or deceased member of the Civil Service of the State for the purposes of this section. | ||
(2) A person, other than a person to whom subsection (1) applies, who, immediately before the commencement date, was a former member of— | ||
(a) the staff of the Authority, | ||
(b) the staff of the Board, or | ||
(c) the staff of another person, body or authority, and in relation to whom certain superannuation liabilities fall to be paid by the Authority, | ||
shall, on and from that date, be deemed to be a former member of the Civil Service of the State for the purposes of this section. | ||
(3) Subject to subsection (4), any superannuation benefits to which subsection (5) applies awarded to or in respect of a person referred to in subsection (1) or (2) on and after the commencement date, and the terms relating to those benefits, shall be no less favourable than those applicable to or in respect of the person immediately before the commencement date. | ||
(4) Subsection (3) shall not apply in respect of an arrangement in relation to superannuation in respect of which the consent or approval of the Minister for Finance, the Minister for Public Expenditure and Reform or any other Minister of the Government was required by or under any enactment but not obtained. | ||
(5) The pension payments and other superannuation liabilities of the Authority in respect of the persons referred to in subsections (1) and (2) become on the commencement date the liabilities of the Minister for Public Expenditure and Reform.”. | ||
(2) (a) The National Disability Authority shall not, from the date of commencement of this subsection, make a scheme under section 28(1) of the Act of 1999. | ||
(b) Paragraph (a) shall not affect the validity of any scheme made under section 28(1) of the Act of 1999 before the date of commencement of this subsection. | ||
(3) In this section, “Act of 1999” means the National Disability Authority Act 1999 . | ||
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Amendment of Disability Act 2005 | ||
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101. The Disability Act 2005 is amended— | ||
(a) in section 46(3), by the substitution of “members, within the meaning of section 3 (1) of the Garda Síochána Act 2005 , of the Garda Síochána” for “the Garda Síochána”, and | ||
(b) in section 47, by the substitution of the following subsection for subsection (4): | ||
“(4) If no compliance targets stand prescribed under subsection (3) in relation to a public body, the body shall ensure, unless there is good reason to the contrary, that— | ||
(a) for the period from the date of commencement of section 101(b) of the Assisted Decision-Making (Capacity) (Amendment) Act 2022 up to and including 31 December 2023, not less than 3 per cent of the persons employed by it are persons with disabilities, | ||
(b) for the period from 1 January 2024 up to and including 31 December 2024, not less than 4.5 per cent of the persons employed by it are persons with disabilities, and | ||
(c) on and from 1 January 2025, not less than 6 per cent of the persons employed by it are persons with disabilities.”. | ||
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Amendment of Nursing Homes Support Scheme Act 2009 | ||
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102. The Nursing Homes Support Scheme Act 2009 is amended— | ||
(a) in section 21, by the insertion of the following subsection after subsection (43): | ||
“(44) Section 46A shall apply to and in relation to care representatives and relevant persons referred to in this section as it applies to specified persons and ‘other persons’ referred to in that section.”, | ||
(b) by the insertion of the following section after section 21: | ||
“Transitional provisions regarding care representatives | ||
21A. (1) On and after the date of the coming into operation of section 102 of the Assisted Decision-Making (Capacity) (Amendment) Act 2022 (in this section referred to as the ‘relevant date’), a person may not apply to the court under section 21(4)(a) for an order appointing him or her to be a care representative. | ||
(2) Where— | ||
(a) a care representative was appointed in respect of a person, and | ||
(b) on or after the relevant date a decision-making representative is appointed under the Assisted Decision-Making (Capacity) Act 2015 (in this section referred to as the ‘Act of 2015’) in respect of the person and in respect of a matter to which section 21 applies that is also specified in the order appointing the care representative, | ||
then— | ||
(i) the decision-making representative shall, as soon as may be after his or her appointment, give notice to the care representative and the Executive of his or her appointment and provide him, her or it, as the case may be, with a copy of the decision-making representation order, and | ||
(ii) for as long as the decision-making representation order is in force, and unless otherwise provided for in the decision-making representation order, the care representative shall not act as such, and the order appointing the care representative shall not apply, in respect of the matter. | ||
(3) Where— | ||
(a) a care representative was appointed in respect of a person, and | ||
(b) on or after the relevant date the Director of the Decision Support Service has, under section 71C of the Act of 2015, accepted a notification in relation to an enduring power of attorney where the attorney is not prohibited or restricted by the terms of the power from performing any matter to which section 21 applies and which matter is also specified in the order appointing the care representative, | ||
then— | ||
(i) the attorney shall, as soon as may be after the acceptance by the Director of the notification, give notice to the care representative and the Executive of that acceptance and provide him, her or it, as the case may be, with a copy of the enduring power of attorney, and | ||
(ii) for as long as the enduring power of attorney is in force, the care representative shall not act as such, and the order appointing the care representative shall not apply, in respect of the matter.”, | ||
(c) by the insertion of the following section after section 46: | ||
“Principles with regard to specified persons | ||
46A. (1) Subsections (2) to (7) shall be taken into account by a specified person when acting as such. | ||
(2) A specified person shall not act as such unless it is necessary to do so having regard to the individual circumstances of the person on whose behalf he or she is acting (in this section referred to as the ‘other person’). | ||
(3) An action by a specified person in respect of the other person shall— | ||
(a) be made in a manner that minimises— | ||
(i) the restriction of the other person’s rights, and | ||
(ii) the restriction of the other person’s freedom of action, | ||
(b) have due regard to the need to respect the right of the other person to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property, | ||
(c) be proportionate to the significance and urgency of the matter the subject of the action, and | ||
(d) be as limited in duration in so far as is practicable after taking into account the particular circumstances of the matter the subject of the action. | ||
(4) A specified person, when acting as such, shall— | ||
(a) permit, encourage and facilitate, in so far as is practicable, the other person on whose behalf he or she is acting to participate, or to improve his or her ability to participate, as fully as possible, in the action, | ||
(b) give effect, in so far as is practicable, to the past and present will and preferences of the other person, in so far as that will and those preferences are reasonably ascertainable, | ||
(c) take into account— | ||
(i) the beliefs and values of the other person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and | ||
(ii) any other factors that the other person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable, | ||
(d) unless the specified person reasonably considers that it is not appropriate or practicable to do so, consider the views of any person named by the other person as a person to be consulted on the matter concerned or any similar matter, | ||
(e) act at all times in good faith and for the benefit of the other person, and | ||
(f) consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant. | ||
(5) The specified person, when acting as such, shall have regard to— | ||
(a) the likelihood of the recovery of the other person’s capacity in respect of the matter concerned, and | ||
(b) the urgency of so acting prior to such recovery. | ||
(6) The specified person, when acting as such— | ||
(a) shall not attempt to obtain personal records relating to the other person or other information to which that person is entitled that is not reasonably required for so acting, | ||
(b) shall not use such records or information for a purpose other than in relation to so acting, and | ||
(c) shall take reasonable steps to ensure that such records or information— | ||
(i) is kept secure from unauthorised access, use or disclosure, and | ||
(ii) is safely disposed of when he or she believes it is no longer required. | ||
(7) In this section, ‘specified person’ has the same meaning as it has in section 47.”, | ||
and | ||
(d) in section 47— | ||
(i) by the substitution of the following subsection for subsection (1): | ||
“(1) Subject to subsections (1A), (2) and (4), a specified person may act on behalf of another person in relation to the following matters under this Act: | ||
(a) an application for a care needs assessment under section 7 and the giving of consent under section 7(13); | ||
(b) a further application for a care needs assessment as referred to in section 8; | ||
(c) an application under section 9 for State support; | ||
(d) the giving of a notice to the Executive under section 24; | ||
(e) a request under section 30 for a review; | ||
(f) an appeal under section 32 against a decision of the Executive; | ||
(g) the provision of any information that the Executive may request, and communication with the Executive, in relation to any of the matters referred to in paragraphs (a) to (f), | ||
where that other person lacks capacity in relation to one or more of the matters referred to in paragraphs (a) to (g).”, | ||
(ii) by the insertion of the following subsection after subsection (1): | ||
“(1A) A specified person shall not act on behalf of another person in relation to any matter referred to in subsection (1) where that other person— | ||
(a) is a ward of court and has a committee duly authorised to act with regard to that matter, | ||
(b) has appointed a person to be his or her attorney under an enduring power of attorney, and— | ||
(i) the attorney is not prohibited or restricted by the terms of the power from performing that matter, and | ||
(ii) either— | ||
(I) the enduring power of attorney has been registered under the Powers of Attorney Act 1996 and the registration has not been cancelled, or | ||
(II) the Director of the Decision Support Service has accepted a notification of the enduring power of attorney under section 71C of the Assisted Decision-Making (Capacity) Act 2015 (in this section referred to as the ‘Act of 2015’) and this acceptance is in force, | ||
or | ||
(c) the court has made a decision-making order under section 38(2) of the Act of 2015 which relates to that matter, or has made a decision-making representation order under that section conferring functions with regard to that matter on a decision-making representative.”, | ||
(iii) in subsection (7)— | ||
(I) by the deletion of paragraphs (a) and (b), | ||
(II) in paragraph (e), by the substitution of “child” for “relative”, and | ||
(III) by the deletion of paragraphs (f) and (g), | ||
(iv) by the insertion of the following subsection after subsection (7): | ||
“(7A) A person— | ||
(a) who is acting as a specified person within the meaning of paragraphs (e) to (g) of subsection (7) immediately before the date of the coming into operation of section 102 of the Assisted Decision-Making (Capacity) (Amendment) Act 2022, and | ||
(b) who, on or after that date, and but for this subsection, would no longer be able to act in light of the amendments to those paragraphs made by the said section 102 of the Assisted Decision-Making (Capacity) (Amendment) Act 2022, | ||
may, notwithstanding the amendments effected to those paragraphs by the said section 102 of the Assisted Decision-Making (Capacity) (Amendment) Act 2022, continue to act as a specified person unless and until the person on whose behalf the specified person is acting becomes a person to whom subsection (1A) applies.”, | ||
(v) in subsection (8)— | ||
(I) by the substitution of “category of person who” for “categories of person who”, | ||
(II) by the substitution of “paragraph (c)” for “paragraphs (a), (b) and (c) ”, and | ||
(III) by the substitution of “paragraph (c)” for “paragraphs (a) to (c)”, | ||
and | ||
(vi) in subsection (9), by the deletion of paragraphs (aa) and (b). | ||
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Amendment of Irish Human Rights and Equality Commission Act 2014 | ||
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103. The Irish Human Rights and Equality Commission Act 2014 is amended— | ||
(a) in section 10(2)— | ||
(i) by the substitution, in paragraph (e), of the words “the High Court, the Court of Appeal or the Supreme Court” for “the High Court or the Supreme Court” wherever they occur, and | ||
(ii) by the insertion of the following paragraph after paragraph (h): | ||
“(ha) without prejudice to the generality of paragraph (b) or (h), to promote and monitor the implementation in the State of the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006;”, | ||
and | ||
(b) in section 18— | ||
(i) in subsection (1)— | ||
(I) by the substitution of “functions,” for “functions, and” in paragraph (a), and | ||
(II) by the insertion of the following paragraph after paragraph (a): | ||
“(aa) without prejudice to the generality of paragraph (a), appoint an advisory committee to assist and advise it on matters relating to its functions under section 10(2)(ha), and”, | ||
and | ||
(ii) by the insertion of the following subsection after subsection (3): | ||
“(3A) In the case of an advisory committee referred to in subsection (1)(aa), at least two-thirds of the number of persons appointed under subsection (3) shall have, or have had, a disability within the meaning of section 2 (1) of the Disability Act 2005 .”. | ||
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Amendment of section 42 of Freedom of Information Act 2014 | ||
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104. Section 42 of the Freedom of Information Act 2014 is amended by the insertion of the following paragraph after paragraph (ea): | ||
“(eb) a record relating to an investigation under section 15 , 30 , 47 , 76 or 88 of the Assisted Decision-Making (Capacity) Act 2015 that has been, or is being, carried out by the Director of the Decision Support Service or a person to whom he or she has delegated his or her functions under section 98(2) of that Act.”. |
