Powers of Attorney Act , 1996

PART I Premiminary and General

1 Short title and commencement.

1.—(1) This Act may be cited as the Powers of Attorney Act, 1996.

(2) This Act shall come into force on such day or days as the Minister shall appoint by order or orders either generally or with reference to any particular provisions and different days may be so fixed for different provisions.

2 Interpretation generally.

2.—(1) In this Act, unless the context otherwise requires—

“convey” includes transfer, lease and assign, and “conveyance” shall be construed accordingly;

“power” means power of attorney;

“power of attorney” means an instrument signed by or by direction of a person (the donor), or a provision contained in such an instrument, giving the donee the power to act on behalf of the donor in accordance with the terms of the instrument;

“statutory declaration” includes a statutory declaration made in accordance with section 3.

(2) (a) In this Act a reference to a Part, section or Schedule is a reference to a Part, section or Schedule of this Act unless it is indicated that reference to some other enactment is intended.

(b) In this Act a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

(3) In this Act a reference to an Act is to that Act as subsequently amended.

3 Statutory declearation by company.

3.—Where, for any purpose of this Act, a statutory declaration is to be made by a person being a corporation aggregate it may be made on behalf of the corporation by a person authorised by the corporation to act on its behalf.

PART II Enduring Powers of Attorney

4 Interpretation.

4.—(1) In this Part—

“affairs”, in relation to a donor of an enduring power, means business or financial affairs of the donor;

“attorney” means the donee of an enduring power and includes a person acting in pursuance of section 5(3) and complying with the provisions of this Act and regulations made thereunder;

“the court” means the High Court;

“enduring power” shall be construed in accordance with section 5 (1);

“mental incapacity”, in relation to an individual, means incapacity by reason of a mental condition to manage and administer his or her own property and affairs and cognate expressions shall be construed accordingly;

“the Minister” means the Minister for Equality and Law Reform;

“notice” means notice in writing;

“personal care decision”, in relation to a donor of an enduring power, means a decision on any one or more of the following matters:

(a) where the donor should live,

(b) with whom the donor should live,

(c) whom the donor should see and not see,

(d) what training or rehabilitation the donor should get,

(e) the donor's diet and dress,

(f) inspection of the donor's personal papers,

(g) housing, social welfare and other benefits for the donor;

“registration”, in relation to an enduring power of attorney, means registration under section 10, and “registered” shall be construed accordingly.

(2) An application or reference to the court under this Part shall be made in a summary manner.

(3) If any question arises under this Part as to what the donor of the enduring power might at any time be expected to do it shall be assumed that the donor had the mental capacity to do so.

5 Characteristics of enduring power.

5.—(1) A power of attorney is an enduring power within the meaning of this Act if the instrument creating the power contains a statement by the donor to the effect that the donor intends the power to be effective during any subsequent mental incapacity of the donor and complies with the provisions of this section and regulations made thereunder.

(2) The Minister may make provision by regulations in relation to all of the following matters concerning enduring powers of attorney:

(a) their form,

(b) their execution,

(c) ensuring that any document purporting to create an enduring power incorporates adequate information as to the effect of creating or accepting the power,

(d) the inclusion in the document of all of the following statements—

(i) by the donor, that the donor has read the information as to the effect of creating the power or that such information has been read to the donor,

(ii) by a solicitor (or a member of some other specified class of persons), that, after interviewing the donor and making any necessary enquiries, the solicitor or such member—

(I) is satisfied that the donor understood the effect of creating the power, and

(II) has no reason to believe that the document is being executed by the donor as a result of fraud or undue pressure,

(iii) by a registered medical practitioner, that in his or her opinion at the time the document was executed the donor had the mental capacity, with the assistance of such explanations as may have been given to the donor, to understand the effect of creating the power,

(iv) by the attorney, that the attorney understands the duties and obligations of an attorney and the requirements of registration under section 10,

(e) the keeping of accounts by the attorney in relation to the management and disposal of the donor's property,

(f) the remuneration, if any, to be paid to the attorney,

(g) the attestation of the signatures of the donor and the attorney,

(h) specific provision for cases where more than one attorney is appointed,

(i) the giving by the donor to specified persons of notice of the execution of the power, and

(j) if the regulations amend or revoke any regulations previously made under this subsection, saving and transitional provisions.

(3) The donor of an enduring power may in the document creating the power appoint one or more specified persons, being persons who are not disqualified, to act as attorney if an attorney appointed by the power dies or is unable or declines to act or is disqualified from acting as attorney.

(4) A power of attorney cannot be an enduring power unless, when executing the instrument creating it, the attorney is—

(a) (i) an individual who has attained 18 years and has not been adjudicated bankrupt or convicted of an offence involving fraud or dishonesty or an offence against the person or property of the donor or is not—

(I) a person in respect of whom a declaration has been made under section 150 of the Companies Act, 1990, or

(II) a person who is or was subject or deemed subject to a disqualification order by virtue of Part VII of that Act,

or

(ii) a trust corporation (within the meaning of section 30 of the Succession Act, 1965),

and

(b) not the owner of a nursing home (whether or not it is a nursing home within the meaning of the Health (Nursing Homes) Act, 1990) in which the donor resides, or a person residing with or an employee or agent of the owner, unless the attorney is a spouse, parent, child or sibling of the donor.

(5) A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power.

(6) Subject to subsection (8) and sections 14 (3) and 14 (5), an enduring power shall be invalidated or, as the case may be, shall cease to be in force on the adjudication in bankruptcy of the attorneyor, if the attorney is a body corporate, by its winding up or dissolution or on the attorney being convicted of an offence referred to in subsection (4) (a) (i) or becoming—

(a) a person referred to in clause (I) or (II) of subsection (4) (a) (i) or

(b) an owner of a nursing home or other person referred to in subsection (4) (b),

unless the attorney is an attorney appointed by the power and subsection (3) applies.

(7) An enduring power in favour of a spouse shall, unless the power provides otherwise, be invalidated or, as the case may be, cease to be in force if subsequently—

(a) the marriage is either annulled under the law of the State or is annulled or dissolved under the law of another state and is, by reason of that annulment or divorce, not or no longer a subsisting valid marriage under the law of the State,

(b) either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having the like effect,

(c) a written agreement to separate is entered into between the spouses, or

(d) a protection order, interim barring order, barring order or safety order is made against the attorney on the application of the donor, or vice versa.

(8) Subsection (6) shall not apply to an enduring power which authorises, or to the extent that it authorises, an attorney to make personal care decisions on behalf of the donor unless the attorney has been convicted of an offence against the person of the donor or has become a person who would be disqualified from acting as attorney by virtue of subsection (4) (b).

(9) An enduring power shall be invalidated or, as the case may be, shall cease to be in force on the exercise by the court of any of its powers under the Lunacy Regulation (Ireland) Act, 1871, if the court so directs.

(10) No disclaimer, whether by deed or otherwise, of an enduring power which has not been registered under section 10 shall be valid unless and until the attorney gives notice of it to the donor.

(11) In subsection (4) (b) “owner” includes a person managing a nursing home or a director (including a shadow director within the meaning of section 27 of the Companies Act, 1990) of, or a shareholder in, a company which owns or manages such a home.

6 Scope of authority of attorney under enduring power.

6.—(1) An enduring power may confer general authority (as defined in subsection (2)) on the attorney to act on the donor's behalf in relation to all or a specified part of the property and affairs of the donor or may confer on the attorney authority to do specified things on the donor's behalf and the authority may, in either case, be conferred subject to conditions and restrictions.

(2) Where an instrument is expressed to confer general authority on the attorney, it operates to confer, subject to the restriction imposed by subsection (5) and to any conditions or restrictions contained in the instrument, authority to do on behalf of the donor anything which the donor can lawfully do by attorney.

(3) Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may execute or exercise any of the powers or discretions vested in the donor as a tenant for life within the meaning of the Settled Land Act, 1882.

(4) Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may act under the power for the attorney's benefit or that of other persons to the following extent but no further, that is to say, the attorney—

(a) may so act in relation to himself or herself or in relation to any other person if the donor might be expected to provide for his or her or that person's needs respectively; and

(b) may do whatever the donor might be expected to do to meet those needs.

(5) Without prejudice to subsection (4) but subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may, if specific provision to that effect is made in the instrument, dispose of the property of the donor by way of gift to the following extent but no further, that is to say, by making—

(a) gifts of a seasonal nature or at a time, or on an anniversary, of a birth or marriage, to persons (including the attorney) who are related to or connected with the donor, and

(b) gifts to any charity to which the donor made or might be expected to make gifts,

provided that the value of each such gift is not unreasonable having regard to all the circumstances and in particular the extent of the donor's assets.

(6) An enduring power may also confer authority on the attorney to make any specified personal care decision or decisions on the donor's behalf.

(7) (a) Any personal care decision made by an attorney on behalf of a donor shall be made in the donor's best interests.

(b) In deciding what is in a donor's best interests regard shall be had to the following:

(i) so far as ascertainable, the past and present wishes and feelings of the donor and the factors which the donor would consider if he or she were able to do so;

(ii) the need to permit and encourage the donor to participate, or to improve the donor's ability to participate, as fully as possible in any decision affecting the donor;

(iii) so far as it is practicable and appropriate to consult any of the persons mentioned below, their views as to the donor's wishes and feelings and as to what would be in the donor's best interests:

(I) any person named by the donor as someone to be consulted on those matters;

(II) anyone (whether the donor's spouse, a relative, friend or other person) engaged in caring for the donor or interested in the donor's welfare;

(iv) whether the purpose for which any decision is required can be as effectively achieved in a manner less restrictive of the donor's freedom of action.

(c) In the case of any personal care decision made by an attorney it shall be a sufficient compliance with paragraph (a) if the attorney reasonably believes that what he or she decides is in the best interests of the donor.

7 Coming into force and survival of enduring power.

7.—(1) Where an individual creates an enduring power of attorney—

(a) subject to subsection (2) and section 9, the power shall not come into force until it has been registered under section 10; and

(b) the power shall not be revoked by the donor's subsequent mental incapacity.

(2) Where the attorney has made an application for registration of the instrument then, until the application has been determined, the attorney may take action under the power—

(a) to maintain the donor or prevent loss to the donor's estate,

(b) to maintain the attorney or other persons in so far as that is permitted under section 6 (4), or

(c) to make a personal care decision which cannot reasonably be deferred until the application has been determined.

(3) Where the attorney purports to act as provided by subsection (2) then, in favour of a person who deals with the attorney without knowledge that the attorney is acting otherwise than in accordance with that subsection, the transaction between them shall be as valid as if the attorney were acting in accordance therewith.

8 Functions of court prior to registration.

8.—Where the court has reason to believe that the donor of an enduring power may be, or may be becoming, mentally incapable and the court is of the opinion that it is necessary, before the instrument creating the power is registered, to exercise any power with respect to the power of attorney or the attorney appointed to act under it which would become exercisable under section 12 on its registration, the court may on application to it by any interested party exercise that power under this section and may do so whether the attorney has or has not made an application to the court for the registration of the instrument.

9 Application for registration.

9.—(1) If the attorney under an enduring power has reason to believe that the donor is or is becoming mentally incapable, the attorney shall, as soon as practicable, make an application to the court for the registration of the instrument creating the power.

(2) Before making the application the attorney shall comply with the provisions as to notice set out in the First Schedule.

(3) The attorney may, before making the application, refer to the court for its determination any question as to the validity of the power.

(4) A certificate to the effect that the donor is, or is becoming, incapable by reason of a mental condition of managing and administering his or her own property and affairs and purporting to be signed by a registered medical practitioner may be accepted as evidence of the matters contained therein.

(5) Any person who, in an application for registration, makes a statement which he or she knows to be false in a material particular shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine not exceeding £10,000, or both; and

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding £1,000, or both.

(6) Pending the making of other provision by rules of court an application under subsection (1) shall be addressed to the Registrar of Wards of Court.

10 Registration.

10.—(1) On an application for registration being made in compliance with section 9 the Registrar of Wards of Court shall, unless subsection (2) applies, register the instrument to which the application relates.

(2) If, in the case of an application for registration—

(a) a valid notice of objection to the registration pursuant to subsection (3) from a person to whom an attorney has given notice pursuant to paragraph 2 (1) of the First Schedule is received by the court before the expiry of the period of five weeks beginning with the date on which that notice was given,

(b) it appears from the application that there is no one to whom notice has been given under paragraph 2 of that Schedule, or

(c) there is reason to believe that appropriate enquiries might bring to light evidence on which the court could be satisfied that one of the grounds of objection set out in subsection (3) was established,

the court shall neither register the instrument nor refuse the application until it has made or caused to be made such enquiries (if any) as it thinks appropriate in the circumstances of the case.

(3) For the purposes of this Act a notice of objection to the registration of an instrument is valid if the objection is made on one or more of the following grounds, namely—

(a) that the power purported to have been created by the instrument was not valid;

(b) that the power created by the instrument is no longer a valid and subsisting power;

(c) that the donor is not or is not becoming mentally incapable;

(d) that, having regard to all the circumstances, the attorney is unsuitable to be the donor's attorney;