Assisted Decision-Making (Capacity) Act 2015

Type Act

Publication 2015-12-30

Last updated 2023-05-25

State In force

Source Irish Statute Book

articles 164

the Director may, not later than 3 months after having formed a view undersubsection (1A), provide the clarification referred to insubparagraph (i), or proceed to resolve the complaint as soon as possible undersection 96(4), as the case may be, and]

(b) where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for same.

(3) A person who receives a notification under subsection (2)(b) may, not later than F42[3 months] after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.

(4) The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an F42[investigation, to which this section shall, with any necessary modifications, apply].

F43[(4A) Wheresubsection (2)(aa)applies and the Director has provided the clarification referred to insubparagraph (i)of that subsection or has resolved the complaint undersection 96(4)as referred to insubparagraph (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 insubsection (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 withsubsection (2)(a)or may take such other steps as he or she considers appropriate in order to resolve the complaint.]

(5) The court may—

(a) pursuant to an application to it under subsection (2)(a) F44[…], or

(b) pursuant to an appeal under F42[subsection (3)or(7)(b)],

make a determination in relation to a matter specified in subsection (1) and may, if it considers it appropriate, determine that a co-decision-maker shall no longer act as such in relation to the appointer F42[concerned, and that the Register shall be amended accordingly].

F43[(6) The Director shall, in accordance with this section, investigate a complaint undersubsection (1)unless in his or her opinion there has been undue delay in making the complaint.

(7) A decision by the Director undersubsection (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.]

31. F45[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 insection 25(3)(a)andsection 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 undersection 21(4)(f),26(3)(b),28(4)(c)and29(4)(b);

(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 inparagraph (c)may be waived by the Director.]

31A. F46[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 undersections 21(2)and28(3)to register a co-decision-making agreement and a varied co-decision-making agreement;

(c) the form of notice undersections 21(3)and28(4)of an application to register a co-decision-making agreement and a varied co-decision-making agreement;

(d) the form of references undersection 21(4)(g)as to the personal character of a co-decision-maker;

(e) the form of notice by the applicants undersection 22(8);

(f) the form of an objection undersection 24to the registration of a co-decision-making agreement and a varied co-decision-making agreement;

(g) the form of a report undersection 27to be submitted by a co-decision-maker to the Director;

(h) the form of revocation, or revocation in part, undersection 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 undersection 29(4A)to the persons specified insection 21(3).]

32. Applications to Court

32. Where, under this Part, the court is determining whether a co-decision-maker should continue to act as co-decision-maker for an appointer, it shall have regard to all of the circumstances of the case, including in particular—

(a) the capacity of the appointer,

(b) the appointer’s willingness to continue to participate in the co-decision-making agreement concerned,

(d) the performance by the co-decision-maker of his or her functions, and

(e) the views of the Director.

33. Role of Director where nullity occurs

33. On receipt of notification of nullity pursuant to section 20(8), the Director shall—

(a) remove the co-decision-making agreement from the Register, or note on the Register the extent of the nullity, as the case may be, and

(b) notify the persons referred to in section 21(3) of the nullity and any removal of the agreement from the Register.

34. Offences in relation to co-decision-making agreements

34. (1) A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke a co-decision-making 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) A person who, in an application for registration of a co-decision-making agreement, or in connection with such an application, makes a statement which he or she knows to be false in a material particular commits an offence and shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €15,000 or imprisonment for a term not exceeding 2 years, or both.

(3) 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 co-decision-making agreement.

Chapter 1

35. Application of this Part

35. This Part shall not apply to relevant persons who have not attained the age of 18 years.

Chapter 2

36. Persons who may make applications to court under this Part, etc.

36. (1) Subject to subsections (2) and (3), a relevant person, or any person who has attained the age of 18 years and who has a bona fide interest in the welfare of a relevant person, may make an application to the court under this Part.

(2) An application to the court under this Part (other than an application by the relevant person) shall be made on notice to—

(a) the relevant person the subject of the application, and

(b) the persons referred to in paragraphs (c) to (i) of subsection (4) (other than any such person who is the applicant).

(3) Subject to subsection (4), an application to the court under this Part shall not be made unless the person making the application has received the consent of the court to the making of the application, which consent may be sought by way of an ex parte application.

(4) Subject to section 49(1), subsection (3) shall not apply to an application to the court under this Part made by—

(a) the relevant person,

(b) the Director,

F47[(ca) the cohabitant of the relevant person,

(cb) a child of the relevant person who has attained the age of 18 years,]

(d) a decision-making assistant for the relevant person,

(e) a co-decision-maker for the relevant person,

(f) a decision-making representative for the relevant person,

F48[(g) an attorney or an attorney under the Act of 1996 for the relevant person,]

(h) a designated healthcare representative for the relevant person,

(i) a person specified for that purpose in an existing order of the court under this Part where the application relates to that order,

(j) if the application relates, whether in whole or in part, to the relevant person’s capacity to make a decision to consent to being married or to being in a civil partnership—

(i) a registrar within the meaning of section 17 of the Civil Registration Act 2004, or

(ii) the other party to the proposed marriage or civil partnership (if any), as the case may be, of the relevant F48[person, and]

F47[(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.]

(5) An application to the court under this Part (including an ex parte application under subsection (3)) shall state—

(a) the applicant’s connection with the relevant person,

(b) the benefit to the relevant person sought to be achieved by the application, and

(i) the reason why the benefit to the relevant person sought to be achieved has failed to be achieved in any other appropriate, practicable and less intrusive manner taken prior to the making of the application, and

(ii) the reason why, in the opinion of the applicant, no other appropriate, practicable and less intrusive manner to achieve that benefit remains to be taken prior to the making of the application.

(6) In every application to the court under this Part, the applicant shall inform the court of the existence of—

(a) any decision-making assistance agreement, co-decision-making agreement, enduring power of attorney or enduring power under the Act of 1996 or advance healthcare directive created by the relevant person, and

(b) any decision-making representation order or decision-making order made in respect of the relevant person,

of which the applicant has knowledge.

(7) Rules of court shall make provision—

(a) as to the manner and form in which proceedings under this Part are to be commenced, and

(b) as to what may be received as evidence in such proceedings and the manner in which it is to be presented.

(8) The court, on the hearing of an application under this Part, may allow the relevant person the subject of the application, if he or she has not instructed a legal practitioner, to be assisted in court by a court friend for the relevant person unless—

(a) there is a decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative for the relevant person and the decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative, as the case may be, is willing to assist the relevant person during the course of the hearing, or

(b) subject to sections 100(12) and 103(15), there is another person, in respect of whom the court is satisfied that such person is suitable, willing and able to assist the relevant person during the course of the hearing.

(9) Where, on the hearing of an application under this Part—

(a) the relevant person the subject of the application has not instructed a legal practitioner,

(b) there is—

(i) no decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative for the relevant person or, if there is a decision-making assistant, co-decision-maker, decision-making representative, attorney, attorney under the Act of 1996 or designated healthcare representative for the relevant person, he or she is not willing to assist the relevant person in the course of the hearing, and

(ii) no person who falls within paragraph (b) of subsection (8) in respect of the relevant person and the hearing,

and

the court may direct the Director to appoint a court friend for the relevant person.

(10) Hearings of applications under this Part shall—

(a) be conducted with the least amount of formality consistent with the proper administration of justice, and

(b) be heard and determined otherwise than in public.

F47[(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 undersubsection (10B)for the purposes of this subsection,

(b) the publication of a report prepared in accordance withparagraph (a), or

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 inparagraph (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 ofsubsection (10A)if the Minister is satisfied that the publication of reports prepared in accordance withsubsection (10A)(a)by persons falling within that class is likely to provide information that will assist in the better operation of this Act.]

(11) Judges hearing and determining proceedings under this Part and legal practitioners appearing in such proceedings shall not wear wigs or gowns.

F47[(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 undersubsection (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 tosection 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 undersubsection (1)—

(i) a written agreement to separate has been entered into between the relevant person and his or her civil partner, or

(ii) subject tosection 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 tosection 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 undersubsection (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.]

Chapter 3

37. Power of court to make declarations as to capacity, etc.

37. (1) The court, on application to it by a person entitled by virtue of section 36 to make the application, may make one or both of the following declarations:

(a) a declaration that the relevant person the subject of the application lacks capacity, unless the assistance of a suitable person as a co-decision-maker is made available to him or her, to make one or more than one decision specified in the declaration relating to his or her personal welfare or property and affairs, or both;

(b) a declaration that the relevant person the subject of the application lacks capacity, even if the assistance of a suitable person as a co-decision-maker were made available to him or her, to make one or more than one decision specified in the declaration relating to his or her personal welfare or property and affairs, or both.

(2) Where the court makes a declaration pursuant to subsection (1)(a), it shall, unless it is clear to the court at that time that the relevant person does not intend to enter into a co-decision-making agreement, allow the relevant person such period of time as the court considers necessary (and taking account of the time periods set out in Part 4) to register a co-decision-making agreement.

(3) Subject to subsection (4), the court, on application to it by a person entitled by virtue of section 36 to make the application, may make a declaration as to the lawfulness of an intervention proposed to be made in respect of the relevant person the subject of the application.

(4)Subsection (3) shall not apply to an intervention where—

(a) the intervener is the court or High Court, or

(b) the intervention is being taken pursuant to an order made, or a direction given, under this Act by the court or High Court.

Chapter 4

38. Power of court to make orders and appoint decision-making representative, etc.

38. (1) This section applies where—

(a) the court has made a declaration which falls within paragraph (a) of section 37(1), but—

(i) there is no suitable person to act as co-decision-maker for the relevant person, or

(ii) where there is a suitable person to act as co-decision-maker for the relevant person, a co-decision-making agreement in respect of the relevant person is not registered in accordance with Part 4 within the period (which may be extended at the court’s discretion) set down by the court,

(b) the court has made a declaration in respect of a relevant person which falls within paragraph (b) of section 37(1).

(2) Where this section applies, the court may make one or both of the following orders:

(a) an order making the decision or decisions concerned on behalf of the relevant person where it is satisfied that the matter is urgent or that it is otherwise expedient for it to do so;

(b) subject to subsection (7) and section 36, an order appointing a suitable person who has attained the age of 18 years to be a decision-making representative for the relevant person for the purposes of making one or more than one decision specified in the order on behalf of the relevant person in relation to his or her personal welfare or property and affairs, or both.

(3) In making a decision-making order or decision-making representation order in relation to personal welfare, the court shall have regard to the terms of any advance healthcare directive made by the relevant person and shall—

(a) ensure that the terms of the order are not inconsistent with the directive, and

(b) where a decision-making representative is appointed, ensure that his or her functions are not inconsistent with the directive or the relevant powers exercisable by any designated healthcare representative under the directive.

(4) In making a decision-making order or decision-making representation order, the court shall have regard to the terms of any enduring power of attorney made by the relevant person or enduring power under the Act of 1996 made by him or her and shall—

(a) ensure that the terms of the order are not inconsistent with the terms of the enduring power of attorney or enduring power under the Act of 1996, and

(b) where a decision-making representative is appointed, ensure that his or her functions are not inconsistent with—

(i) the functions of an attorney under an enduring power of attorney, or

(ii) the duties and obligations of an attorney under the Act of 1996.

(5) When considering the suitability of a person to be a decision-making representative for a relevant person, the court shall have regard to the following:

(a) the known will and preferences of the relevant person;

(b) the desirability of preserving existing relationships within the family of the relevant person;

(d) the compatibility of the proposed representative and the relevant person;

(e) whether the proposed representative will be able to perform the functions to be vested in him or her;

(f) any conflict of interest.

(6) Where the court appoints a decision-making representative to make decisions on the relevant person’s property and affairs, it shall have regard to the following:

(a) the size, nature and complexity of the relevant person’s financial affairs;

(b) any professional expertise, qualification or experience required to manage the relevant person’s financial affairs;

(d) the financial expertise and support available to the proposed representative.

(7) Where the court proposes to appoint a decision-making representative for a relevant person but no suitable person is willing to act as such decision-making representative—

(a) the court shall request the Director to nominate 2 or more persons from the panel established under section 101 for consideration by the court for such appointment,

(b) the Director shall comply with a request by the court under paragraph (a), and

(c) the court may, under subsection (2)(b), appoint, from amongst those nominees, a person to be a decision-making representative for the relevant person for the purposes referred to in that paragraph.

(8) In making a decision-making order or decision-making representation order, the court shall make provision for such other matters as it considers appropriate, including—

(a) subject to subsection (9), the conferral of powers on a decision-making representative,

(b) the imposition of duties on a decision-making representative,

(c) the attachment of conditions relating to the making of any relevant decision by a decision-making representative or the exercise of any power by a decision-making representative in his or her capacity as a decision-making representative, and

(d) the period of time for which the order is to have effect.

F50[(8A) Notwithstandingsubsection (2)(b), the court, in making a decision-making representation order in the circumstances wheresubsection (1)(a)orsection 55(4)applies, shall—

(a) in attaching any conditions undersubsection (8)(c), take into account the application ofsection 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 underPart 4.]

(9) In making a decision-making representation order, the court shall, in so far as the order relates to the conferral of powers referred to in subsection (8)(a), ensure that the powers conferred are as limited in scope and duration as is necessary in the circumstances having regard to the interests of the relevant person the subject of the order.

(10) The court may appoint one or more than one person as a decision-making representative for a relevant person and may so appoint different persons in respect of different relevant decisions.

(11) In making a decision-making representation order, the court shall require the decision-making representative, or decision-making representatives if there is more than one, to sign a statement indicating that he or she—

(a) understands and undertakes to act in accordance with the powers conferred and the duties imposed on him or her by the court, and

(b) understands and undertakes to act in accordance with the guiding principles set out in section 8.

(12) A decision-making representation order appointing more than one person as a decision-making representative for a relevant person in relation to the same relevant decisions shall make provision as to whether such persons are to act—

(a) jointly,

(b) jointly and severally, or

(13) The court may make a decision-making order or decision-making representation order notwithstanding that an application has not been made to it under this Part for an order in that respect or in those terms.

(14) The court may vary or discharge a decision-making order or decision-making representation order, whether of its own motion or pursuant to an application to it under this Part by a person entitled by virtue of section 36 to make the application.

39. Persons who are not eligible to be decision-making representatives

39. (1) Subject to subsection (2), a person shall not be eligible for appointment as a decision-making representative if he or she—

(a) has been convicted of an offence in relation to the person or property of the relevant person or the person or property of a child of that person,

(b) has been the subject of a safety or barring order in relation to the relevant person or a child of that person,

(c) is an undischarged bankrupt or is currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty,

(d) is a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,

(e) is a person who is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Act of 2014, by virtue of that Chapter or any other provisions of that Act,

(f) is a person who is—

(i) the owner or registered provider of a designated centre or mental health facility in which the relevant person resides, or

(ii) residing with, or an employee or agent of, such owner or registered provider, as the case may be,

unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the relevant person, or

(g) has been convicted of an offence under F51[section 15A, 34,] 80, 90 or 145.

(2) Subsections (1)(c), (d) and (e) shall not apply as respects the appointment of a person as a decision-making representative in respect of relevant decisions concerning personal welfare matters only.

40. Disqualification as decision-making representative

40. (1) A decision-making representative shall, with effect from the date on which an event specified in paragraphs (a) to (c) occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, be disqualified from being a decision-making representative for the relevant person where the decision-making representative is the spouse of the relevant person and—

(a) the marriage is annulled or dissolved either—

(i) under the law of the State, or

(ii) under the law of another state and is, by reason of that annulment or dissolution, 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 like effect,

(d) subject to section 2(2), the spouses separate and cease to cohabit for a continuous period of 12 months.

(2) A decision-making representative shall, with effect from the date on which an event specified in paragraph (a) or (b) occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, be disqualified from being a decision-making representative for the relevant person where the decision-making representative is the civil partner of the relevant person and—

(a) the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either—

(i) under the law of the State, or

(ii) under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State,

(b) a written agreement to separate is entered into between the civil partners, or

(3) Subject to section 2(2), a decision-making representative shall, at the expiry of the period referred to in this subsection, be disqualified from being a decision-making representative for the relevant person where the decision-making representative is the cohabitant of the appointer and the cohabitants separate and cease to cohabit for a continuous period of 12 months.

(4) Subject to subsection (5), where, subsequent to the appointment of a decision-making representative—

(a) the decision-making representative is convicted of an offence in relation to the person or property of the relevant person or the person or property of a child of the relevant person,

(b) a safety or barring order is made against the decision-making representative in relation to the relevant person or a child of the relevant person,

(c) the decision-making representative becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty,

(d) the decision-making representative becomes a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,

(e) the decision-making representative becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter or any other provisions of that Act,

(f) the decision-making representative becomes—

(i) the owner or registered provider of a designated centre or mental health facility in which the relevant person resides, or

(ii) a person residing with, or an employee or agent of, such owner or registered provider, as the case may be,

unless the decision-making representative is a spouse, civil partner, cohabitant, parent, child or sibling of the appointer,

(g) the decision-making representative is convicted of an offence under F52[section 15A, 34,] 80, 90 or 145, or

(h) the decision-making representative—

(i) enters into a decision-making assistance agreement as a relevant person,

(ii) enters into a co-decision-making agreement as a relevant person,

F52[(iii) has an enduring power of attorney that is the subject of a notification that has been accepted by the Director undersection 71C, or an enduring power under the Act of 1996 that has been registered, in respect of himself or herself, or]

(iv) becomes the subject of a declaration under section 37(1),

the decision-making representative shall be disqualified from being a decision-making representative for the relevant person with effect from the date on which the decision-making representative falls within any of paragraphs (a) to (h).

(5) Subsections (4)(c), (d) and (e) shall not apply to a decision-making representative insofar as he or she exercises functions under the decision-making representation order in relation to the personal welfare of the relevant person.

(6) Where a decision-making representative becomes disqualified under this section, he or she or, in the case of disqualification pursuant to subsection (4)(h)(iii) or (iv), his or her attorney, decision-making representative or the court, as the case may be, shall notify the Director of such disqualification and the particulars relating thereto.

(7) Where a decision-making representative becomes disqualified, a relevant decision made solely by him or her after his or her disqualification shall be null and void.

(8) Subsection (7) shall not operate to prevent a person who relied on a relevant decision referred to in that subsection from recovering damages in respect of any loss incurred by him or her as a result of that reliance.

41. Performance of functions of decision-making representative

41. (1) In exercising his or her functions as specified in the decision-making representation order, a decision-making representative shall, insofar as this is possible, ascertain the will and preferences of the relevant person on a matter the subject of, or to be the subject of, a relevant decision and assist the relevant person with communicating such will and preferences.

(2) A decision-making representative shall make a relevant decision on behalf of the relevant person and shall act as the agent of the relevant person in relation to a relevant decision.

F53[(3) Notwithstandingsubsection (2), a decision-making representative appointed in circumstances wheresection 38(1)(a)orsection 55(4)applies shall ensure, in so far as is practicable, that he or she jointly makes decisions with the relevant person.]

42. Remuneration and expenses

42. (1) Except where the court otherwise orders, a decision-making representative for a relevant person shall be entitled to be reimbursed out of the assets of the relevant person in respect of his or her fair and reasonable F54[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] which are reasonably incurred in performing his or her functions as such decision-making representative.

(2) Where the court so directs in a decision-making representation order, the decision-making representative shall be entitled to F54[reasonable remuneration in accordance with regulations made undersubsection (4)] in relation to the performance of his or her functions as such decision-making representative and which functions are carried out in connection with his or her trade or profession, or in other exceptional circumstances specified in the order, and such remuneration shall be paid from the assets of the relevant person.

F55[(3) Subject tosubsection (4), where a decision-making representative is appointed by the court in the circumstances to whichsection 38(7)applies and—

(a) the court makes an order to whichsubsection (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 undersubsection (2), or

(c) whereparagraph (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 insubsection (3)(i)and the payment of reasonable remuneration referred to insubsections (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 withparagraph (a).]

43. Scope of decision-making order or decision-making representation order relating to property and affairs

43. (1) A decision-making representative may not dispose of the property of the relevant person by way of gift unless specific provision to that effect is made by the court in the decision-making representation order.

(2) Subject to section 44, if a decision-making representative for a relevant person is empowered by the decision-making representation order appointing him or her as such decision-making representative to dispose of the relevant person’s property by way of gift, then, without the specific approval of the court, the power to make such a gift shall be limited to—

(a) gifts made on customary occasions to persons (including the decision-making representative) who are related or connected to the relevant person and in relation to whom the relevant person might be expected to make gifts, and

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

provided that the value of the gift is reasonable having regard to all the circumstances and in particular the extent of the relevant person’s assets and financial obligations.

(3) F56[…]

(4) F56[…]

(5) F56[…]

(6) A decision-making representation order may provide for the giving of such security by the decision-making representative to the court as the court considers appropriate in relation to the proper performance of the functions of such decision-making representative.

44. Restrictions on decision-making representatives

44. (1) Nothing in this Part shall permit a decision-making representative for a relevant person to be given the power to prohibit a particular person from having contact with the relevant person.

(2) A decision-making representative for a relevant person shall not have authority to make decisions on behalf of a relevant person other than those specified in the decision-making representation order.

(3) A decision-making representative for a relevant person shall not, without the express approval of the court—

(a) exercise any powers in relation to the settlement of any part of the property of the relevant person, whether for the relevant person’s benefit or for the benefit of others, or

(b) exercise any power (including the power to consent) vested in the relevant person, whether beneficially or as trustee or otherwise.

(4) Subject to the terms of any advance healthcare directive made by the relevant person and subject to relevant powers exercisable by any designated healthcare representative appointed under the directive, a decision-making representative for a relevant person shall not refuse consent to the carrying out or continuation of life-sustaining treatment or consent to the withdrawal of life-sustaining treatment for the relevant person.

(5) F57[…]

(6) F57[…]

(7) F57[…]

(8) F57[…]

45. Register of decision-making representation orders

45. (1) The Director shall establish and maintain a Register (in this Part referred to as “the Register”) of decision-making representation orders.

(2) The Register shall be in such form as the Director considers appropriate.

(3) F58[The Director shall make such details of the Register as he or she shall specify] available for inspection by—

(a) a body or class of persons prescribed by regulations made by the Minister for this purpose, and

(b) a person who satisfies the Director that he or she has a legitimate interest in F58[inspecting those details of the Register].

(4) The Director may issue an authenticated copy of a decision-making representation order, F58[or part thereof, or, where applicable, any variations to the order or part thereof,] on the Register on payment of a fee prescribed by regulations made by the Minister to—

(a) a body or class of persons prescribed by regulations made by the Minister for this purpose, and

(b) a person who satisfies the Director that he or she has a legitimate interest in obtaining a copy.

F59[(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 undersubsection (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.]

46. Reports by decision-making representative

46. (1) Subject to subsection (2), a decision-making representative shall, within 12 months after the making of the decision-making representation order appointing him or her, and thereafter at intervals of not more than 12 months, prepare and submit to the Director a report in writing as to the performance of his or her functions as such decision-making representative during the relevant period.

(2) The court may direct that a report be submitted to the Director within such shorter period or within such shorter intervals than those specified in subsection (1).

(3) Every such report submitted to the Director shall be in such form as may be F60[specified by the Director, with the consent of the Minister,] and shall include details of all transactions relating to the relevant person’s finances which are within the scope of the decision-making representation order and details of all costs, expenses and remuneration claimed by or paid to the decision-making representative during the relevant period.

(4) F61[…]

(5) Where a decision-making representation order authorises a decision-making representative to make decisions in relation to a relevant person’s property and affairs, the decision-making representative shall within 3 months of his or her appointment as decision-making representative, submit to the Director a schedule of the relevant person’s assets and liabilities and a projected statement of the relevant person’s income and expenditure.

(6) Where a decision-making representation order authorises a decision-making representative to make decisions in relation to a relevant person’s property and affairs, the decision-making representative shall keep proper accounts and financial records in respect of the relevant person’s income and expenditure and shall—

(a) submit the accounts and records as part of a report to the Director under this section, and

(b) make available for inspection by the F60[Director, by a general visitor] or by a special visitor, at any reasonable time, such accounts and records.

(7) Where a decision-making representative fails to submit a report in accordance with this section or submits an incomplete report or fails to comply with subsection (5) or (6), the Director shall notify the decision-making representative of that failure or incompleteness and give the decision-making representative such period of time as is specified in the notification to comply or submit a complete report.

(8) Where a decision-making representative fails to comply with a notification under subsection (7), the Director shall—

(a) 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 F60[specifications made by the Director undersubsection (3)], accept the report as if it were in compliance with this section and the F60[relevant specifications], or

(b) make an application to the court for a determination as to whether the decision-making representative should continue as decision-making representative for the relevant person.

(9) Pursuant to an application to it under subsection (8)(b), the court may determine that a decision-making representative who has not complied with this section shall no longer act as decision-making representative for the relevant person concerned.

(10) 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 of the decision-making representation order or the date of submission of the previous report, as the case may be, and the date immediately preceding the date of submission of the report concerned.

47. Complaints in relation to decision-making representatives

47. (1) A person may make a complaint in writing to the Director concerning F62[one or both of] the following matters:

(a) that a decision-making representative has acted, is acting, or is proposing to act outside F62[the scope of, or in breach of,] his or her functions as specified in the decision-making representation F62[order, or in breach of this Act];

(b) that a decision-making representative is not suitable, having regard to the matters referred to in section 38(5), to be a decision-making representative.

F63[(1A) Following the receipt of a complaint undersubsection (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 tosubsection (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.]

(2) F62[The Director shall, as soon as is practicable after having formed a view undersubsection (1A)] and—

(a) where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to a matter specified in the F62[complaint,]

F63[(aa) notwithstandingparagraph (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 undersection 96(4),

(b) where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for same.

(3) A person who receives a notification under subsection (2)(b) may, not later than F62[3 months] after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.

(4) The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an F62[investigation, to which this section shall, with any necessary modifications, apply].

F63[(4A) Wheresubsection (2)(aa)applies and the Director has provided the clarification referred to insubparagraph (i)of that subsection or has resolved the complaint undersection 96(4)as referred to insubparagraph (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.

(5) The court may—

(a) pursuant to an application to it under subsection (2)(a) F64[…], or

(b) pursuant to an appeal under F62[subsection (3)or(7)(b)],

make a determination in relation to a matter specified in subsection (1) and may, if it considers it appropriate, determine that a decision-making representative shall no longer act as such in relation to the relevant person F62[concerned, and that the Register shall be amended accordingly].

F63[(6) The Director shall, in accordance with this section, investigate a complaint undersubsection (1)unless in his or her opinion there has been undue delay in making the complaint.

(7) A decision by the Director undersubsection (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.]

Chapter 5

48. Interim orders

48. (1) Where an application under this Part has been brought before the court but not determined, the court may make an interim order in relation to the relevant person the subject of the application if—

(a) the matter to which the order relates is one in respect of which the court may make an order under this Part,

(b) the court has reason to believe that the relevant person lacks capacity in relation to the matter, and

(2) An order under this section shall—

(a) limit the period of time for which the order shall have effect, and

(b) limit the operation of the order to matters specified in the order,

but the court may renew the order if it considers that it is in the interests of the relevant person to do so.

(3) The court may vary or revoke an order made under this section, whether of its own motion or pursuant to an application to it by a person entitled by virtue of section 36 to make the application.

(4) This section shall, with all necessary modifications, apply to a direction which the court may give under this Part as it applies to an order which it may make under this Part.

49. Review of declaration as respects capacity

49. (1) Where the court makes a declaration under section 37(1), an application for a review of the declaration may be made to the court at any time by the relevant person or, with the consent of the court, by any of the persons referred to in any of paragraphs (b) to (i) of section 36(4).

(2) Notwithstanding subsection (1), the court shall in every case review a declaration under section 37(1) at intervals specified by the court when making the declaration but in every such case at intervals of—

(a) subject to paragraph (b), not more than 12 months,

(b) not more than 3 years if the court is satisfied that the relevant person is unlikely to recover his or her capacity.

(3) The periods of 12 months and 3 years referred to in subsection (2) shall run from the date on which the court made or last reviewed, as appropriate, the declaration referred to in that subsection.

(4) (a) Where, having reviewed the capacity of a relevant person, the court is satisfied that the relevant person no longer lacks capacity to make one or more than one relevant decision, the court shall—

(i) make an order revoking or amending, as appropriate, the declaration concerned under section 37(1),

(ii) make an order varying or discharging, as appropriate, a decision-making order or decision-making representation order of which the relevant person is the subject, and

(iii) give such directions as it thinks appropriate for the order or orders to have full effect.

(b) Where, having reviewed the capacity of a relevant person, the court is satisfied that the relevant person continues to lack capacity to make one or more than one relevant decision, the court shall make an order confirming the declaration concerned under section 37(1).

(5) This section shall not apply where the reason why the application to the court under this Part seeking a declaration under section 37(1) relating to capacity in respect of the relevant person the subject of the application was made is no longer of relevance.

50. Expert reports

50. (1) In considering any application under this Part for a declaration, order or review, the court shall have all such powers as are necessary to assist it in making a decision.

(2) For the purposes of an application referred to in subsection (1), the court may direct that such reports as the court considers necessary be furnished to it, including—

(a) medical reports relating to the relevant person the subject of the application F65[…],

(b) reports relating to the circumstances of the relevant person (including financial reports and valuations of property in which the relevant person has an interest), and

Chapter 6

51. Notification of Director of the Decision Support Service

51. Where the court makes a declaration or an order under this Part, or gives a direction under this Part, the registrar of the court making the declaration or order, or giving the direction, shall in each case furnish a copy of the declaration or order, or the direction, as the case may be, to the Director as soon as is practicable after the declaration or order is made or the direction is given.

Chapter 7

52. Amendment of Act of 1995

52. The Act of 1995 is amended—

(a) in section 1 by inserting the following definition:

“ ‘relevant person’ has the meaning it has in the Assisted Decision-Making (Capacity) Act 2015;”,

(b) in section 26(3) —

(i) in paragraph (a), by substituting “has already been given,” for “has already been given, and”,

(ii) in paragraph (b), by substituting “section 28(9)(c), F66[…]” for “section 28(9)(c).”, and

(iii) by inserting, after paragraph (b), the following:

“(c) a party to an application under Part 5 of the Assisted Decision-Making (Capacity) Act 2015 shall qualify for legal F67[advice, and]”,

“(3A) Where the proceedings the subject matter of the application under this section concern an application under Part 5 of the Assisted Decision-Making (Capacity) Act 2015 relating to the matter referred to in section 37(1) of that Act—

(a) paragraphs (c) and (e) of subsection (2) shall not apply, and

(b) where the applicant is a relevant person, paragraph (a) shall not apply.”,

(d) in section 28(5) —

(i) in paragraph (d) by deleting “aid.” and substituting “aid, and”, and

(ii) by inserting after paragraph (d) the following:

“(e) who is a patient, within the meaning of the Mental Health Act 2001, for the purpose of providing that person with legal representation before a tribunal in proceedings under that Act.”,

(e) in section 33, by inserting after subsection (7) the following:

“(7A) Where a legal aid certificate has been granted to an applicant who is a relevant person 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 relevant person concerned.”,

and

(f) in section 37(2), by inserting after paragraph (fb) the following:

“(fc) make provision for the mechanism for recovery of the costs referred to in section 33(7A);”.

PART 6 Wards

53. Definitions — Part 6

53. In this Part—

“ward” means a relevant person in the wardship of a wardship court;

“wardship court” means the High Court or Circuit Court exercising its jurisdiction under this Part and, in relation to a ward, means that court which made the order by virtue of which the ward is a ward.

54. Review of capacity of wards who are adults

54. F68[(1) An application for a declaration undersection 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

(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.]

(2) Notwithstanding subsection (1), the wardship court shall, within 3 years from the date of commencement of this Part, make a declaration under section 55(1) in respect of a ward who—

(a) F68[is 18 years or older] by that date, or

(b) reaches the age of 18 years within 2 years and 6 months from that date.

(3) Where a ward reaches the age of 18 years after the period specified in subsection (2)(b), the wardship court shall, within 6 months of the ward reaching that age, make a declaration under section 55(1) in respect of the ward.

54A. F69[Assistance to ward during proceedings

54A.F70[(1) ...

(2) ...]

(3) Proceedings undersection 54shall be conducted with the least amount of formality consistent with the proper administration of justice.]

55. Declarations following review and discharge from wardship

55. (1) The wardship court, on an application being made to it under section 54(1),or pursuant to section 54(2) or (3), shall—

(a) declare that the ward does not lack capacity, or

(b) make one or more than one of the following declarations:

(i) that the ward lacks capacity, unless the assistance of a suitable person as a co-decision-maker is made available to him or her, to make one or more than one decision;

(ii) that the ward lacks capacity, even if the assistance of a suitable person as a co-decision-maker were made available to him or her.

(2) Where the wardship court makes a declaration pursuant to subsection (1)(a), it shall immediately discharge the ward from wardship and shall order that the property of the F71[person the subject of the declaration be] returned to him or her and give such directions as it thinks appropriate having regard both to the discharge and the circumstances of F71[that person.]

(3) Where the wardship court makes a declaration pursuant to subsection (1)(b)(i), it shall, on registration of a co-decision-making agreement, discharge the ward from wardship and shall order that the property of the F71[person the subject of the declaration be] returned to him or her and give such directions as it thinks appropriate having regard both to the discharge and the circumstances of the F71[that person.]

(4) Where the F71[wardship court makes] a declaration pursuant to subsection (1)(b)(i) but—

(a) there is no suitable person to act as co-decision-maker for the F71[person the subject of the declaration after his or her discharge from wardship], or

(b) a co-decision-making agreement in respect of the F71[person the subject of the declaration after his or her discharge from wardship] is not registered in accordance with Part 4 within a period set down by the wardship court,

the wardship court shall (subject to it allowing for any extension of the period set down by it)—

(i) as if it had made a declaration under subsection (1)(b)(ii), make F71[such orders and give such directions] under Part 5 as it considers appropriate as if the wardship court were the court under Part 5, and

F71[(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 underparagraph (ii)be returned to him or her upon the appointment of a decision-making representative in respect of him or her.]

(5) Where the wardship court makes a declaration pursuant to subsection (1)(b)(ii), it shall—

(a) make F71[such orders and give such directions] as it considers appropriate under Part 5 as if the wardship court were the court under Part 5, and

F71[(b) discharge the ward from wardship upon the appointment of a decision-making representative in respect of him or her, and]

F72[(c) order that the property of the person the subject of the discharge from wardship underparagraph (b)be returned to him or her upon the appointment of a decision-making representative in respect of him or her.]

F72[(6) Where the wardship court is making an order or giving a direction underPart 5, to whichsubsection (4)(i)orsubsection (5)(a)refers,subsections (4)to(12)andsubsection (14)ofsection 38shall apply with any necessary modifications, and as if the ward, or the person the subject of a discharge from wardship undersubsection (4)(ii)or(5)(b), as the case may be, were a relevant person.

(7)Sections 39to44andsections 46and47shall apply to decision-making representatives appointed, or to be appointed, by a wardship court underPart 5as they apply to decision-making representatives appointed, or to be appointed, by a court underPart 5.

(8) A reference insection 45to a decision-making representation order includes a reference to a decision-making representation order made by a wardship court.]

55A. F73[Review of declaration by wardship court as respects capacity

55A.(1) Where the wardship court makes a declaration undersection 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 toparagraph (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,

andsection 49(4)shall apply in respect of the review as it applies to the review of a declaration by a court undersection 37(1), with the following modifications:

(i) a reference insection 49(4)to the declaration made by the court undersection 37(1)shall be read as a reference to the declaration made by the wardship court undersection 55(1)(b);

(ii) a reference insection 49to the relevant person shall be read as a reference to the person the subject of the declaration of the wardship court undersection 55(1)(b).

(2) After the review referred to insubsection (1)has taken place,section 49shall thereafter apply to the declaration by the wardship court undersection 55(1)(b)as it applies to a declaration by a court undersection 37(1), with the following modifications:

(a) a reference insection 49to a declaration made by the court undersection 37(1)shall be read as a reference to a declaration made by the wardship court undersection 55(1)(b);

(b) a reference insection 49to a relevant person shall be read as a reference to the person the subject of the declaration of the wardship court undersection 55(1)(b);

(c) a reference insection 49(1)to any of the persons referred to in any ofparagraphs (b)to(i)ofsection 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 undersection 55(1)(b).]

56. Saver

56. (1) The repeal of the Lunacy Regulation (Ireland) Act 1871 by section 7 shall not affect the validity of any order—

(a) made by the wardship court within its jurisdiction, and

(b) which was in force immediately before the commencement of this Part.

(2) Pending a declaration under section 55(1), the jurisdiction of the wardship court as set out in sections 9 and 22(2) of the Courts (Supplemental Provisions) Act 1961 shall continue to apply.

F74[(3) Notwithstanding its repeal bysection 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 insubsection (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 insubsection (3), the wardship court makes an order by virtue of which a person becomes a ward, it may in those proceedings and notwithstandingsection 54, also make a declaration undersection 55(1)in respect of the ward and the relevant provisions of the saidsection 55shall then apply accordingly.

(6) Nothing in this section shall prevent—

(a) the appointment of a decision-making assistant undersection 10by,

(b) the appointment of a co-decision-maker undersection 17by,

(d) the registration of an enduring power under the Act of 1996 undersection 10of that Act that was executed by, or

(e) the registration of an enduring power under the Act of 1996, in accordance with regulations made undersection 81(1A)(b), that was executed by,

a person the subject of proceedings referred to insubsection (3).

(7) Where—

(a) an appointment referred to insubsection (6)(b)is made,

(b) a person is appointed as a decision-making representative pursuant to an application underPart 5referred to insubsection (6)(c),

the proceedings referred to insubsection (3)shall be withdrawn as soon as practicable.]

57. Director and wards who are adults

57. F75[…]

57A. F76[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);".]

PART 7 Enduring Powers of Attorney

58. Interpretation — Part 7

58. (1) In this Part—

“disqualified”, in relation to an attorney, means the attorney becomes a person referred to in section 66 or a person that the court determines under this Part shall no longer act as attorney for the donor concerned;

“donor” has the meaning given to it in section 59(1);

“donor under the Act of 1996” means a person who has created an enduring power under the Act of 1996;

“prescribed” means prescribed by regulations made by the Minister under section 79;

F77[“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.]

(2) In this Part “person”, in relation to an attorney, includes a trust corporation but only to the extent that the authority conferred under the enduring power of attorney relates to property and affairs.

58A. F78[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 undersection 71A.

(2) Without prejudice to the generality ofsubsection (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 insubsection (3), and

(c) the information and documents to be provided to the Director on notification undersection 71A, in particular regarding the authorisation of any further persons to whomparagraph (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 insection 59(1)regarding the minimum age of an attorney shall not apply to a trust corporation.]

58B. F79[Liability of officers of trust corporation for offences

58B.(1) Where an offence undersection 80orsection 145has 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 undersection 80or145.

(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.]

59. Enduring power of attorney — general

59. (1) Subject to the provisions of this section and F80[sections 58A, 60] and 63, a person who has attained the age of 18 years (in this Act referred to as “donor”) may appoint another person who has also attained that age (in this Act referred to as “attorney”) on whom he or she confers either or both of the following:

(a) general authority to act on the donor’s behalf in relation to all or a specified part of the F80[donor’s personal welfare or property and affairs, or both;]

(b) authority to do specified things on the donor’s behalf in relation to the donor’s personal welfare or property and affairs, or both;

which may, in either case, be conferred subject to conditions and restrictions.

(2) The authority referred to in subsection (1) shall be known as an enduring power of attorney and shall be conferred in writing in an instrument which is in compliance with F80[this Part, regulations made undersection 79and specifications made by the Director undersection 79A].

(3) A donor may, in an enduring power of attorney, appoint a person who shall act as attorney for the donor in respect of the relevant decisions specified therein in the event that an attorney on whom authority is conferred dies or is unable to act or is disqualified from F80[acting as attorney, or resigns from his or her role as attorney].

F80[(4) An enduring power of attorney shall not enter into force until—

(a) the instrument creating the enduring power of attorney has been registered undersection 69,

(b) the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power,

(d) the Director accepts the notification undersection 71C.]

(5) Where an enduring power of attorney is expressed to confer general authority in respect of all or a specified part of the donor’s property and affairs, it operates to confer, subject to any restrictions provided in the power or in this Part, authority to do on behalf of the donor anything which the donor can lawfully do by attorney.

F81[(5A) Where an enduring power of attorney confers authority underparagraph (a)or(b)ofsubsection (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.]

(6) A person is suitable for appointment as an attorney if he or she is able to perform the functions of attorney as specified in the enduring power of attorney.

60. Content of instrument creating an enduring power of attorney

60. (1) An instrument creating an enduring power of attorney shall include the following statements:

(a) by the donor that he or she—

(i) understands the implications of creating the power,

(ii) intends the power to be effective at any subsequent time when he or she lacks capacity in relation to one or more relevant decisions which are the subject of the power, and

(iii) is aware that he or she may vary or revoke the power prior to its F82[registration, and on or after its registration until the attorney notifies the Director undersection 71Athat 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 undersection 71C];

(b) 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 creating the power,

(ii) is satisfied that the donor is aware that he or she may vary or revoke the power prior to its F82[registration, and on or after its registration until the attorney notifies the Director undersection 71Athat 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 undersection 71C], and

(iii) has no reason to believe that the instrument is being executed by the donor as a result of fraud, coercion or undue pressure;

F82[(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) F83[…]

(e) by the attorney, that he or she—

(i) understands the implications of undertaking to be an attorney for the donor and has read and understands the information contained in the instrument,

(ii) understands and undertakes to act in accordance with his or her functions as specified in the instrument creating the enduring power of attorney,

(iii) understands and undertakes to act in accordance with the guiding principles,

(iv) understands and undertakes to comply with the reporting obligations under section 75, and

(v) understands the requirements in relation to registration of the F82[power, and in relation to notification of the Director undersection 71Awhen the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power].

(2) An instrument creating an enduring power of attorney shall include the following:

(a) the name, date of birth and contact details of the donor;

(b) subject to subsection (3), the signature of the donor and the date that he or she signed the power;

(d) the signature of the attorney and the date that he or she signed the enduring power of attorney;

(e) the signatures of the 2 witnesses referred to in subsection (4)(a).

(3) An instrument creating an enduring power of attorney may be signed on behalf of the donor by a person who has attained the age of 18 years and who is not the attorney or a witness referred to in subsection (4)(a) if—

(a) the donor is unable to sign the instrument,

(b) the donor is present and directs that the instrument be signed on his or her behalf by that person, and

(4) (a) The donor, or the person signing on his or her behalf in accordance with subsection (3), and the attorney shall sign the instrument creating the enduring power of attorney in the presence of each other and in the presence of 2 witnesses—

(i) each of whom has attained the age of 18 years,

(ii) of whom at least one is not an immediate family member of the donor or the attorney, and

(iii) neither of whom is an employee or agent of the attorney.

(b) Each of the witnesses referred to in paragraph (a) shall witness the signature of the donor (or the person signing on his or her behalf) and the signature of the attorney by applying his or her own signature to the instrument creating the enduring power of attorney.

(5) Where a donor proposes to remunerate an attorney for performing his or her functions as attorney, the instrument creating the enduring power of attorney shall specify the proposed remuneration and the functions to which it relates.

(6) In this section, “immediate family member” means—

(a) a spouse, civil partner, or cohabitant,

(b) a child, son-in-law or daughter-in-law,

(d) a brother, sister, step-brother, step-sister, brother-in-law or sister-in-law,

(e) a grandparent or grandchild,

(f) an aunt or uncle, or

(g) a nephew or niece.

61. Notice of execution of an enduring power of attorney

61. F84[…]

62. Scope of authority — personal welfare decisions

62. F85[…]

63. Scope of authority — property and affairs

63. (1) An attorney may act under an enduring power of attorney relating to property and affairs for the attorney’s benefit or that of other persons to the extent provided for in the power, where specific provision to that effect is made in the power and subject to any conditions or restrictions contained in the power.

(2) An attorney may not dispose of the property of the donor by way of gift unless specific provision to that effect is made in the enduring power of attorney.

(3) Where an enduring power of attorney authorises the disposal of the donor’s property by way of gift, the attorney’s power to make such gifts shall, in addition to being subject to any conditions or restrictions in the enduring power, be limited to—

(a) gifts made on customary occasions to persons (including the attorney) who are related to or connected to the donor and in relation to whom the donor might be expected to make gifts, and

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

provided that the value of the gift is reasonable having regard to all the circumstances and in particular the extent of the donor’s assets and any financial obligations.

64. Application to joint and joint and several attorneys

64. (1) A donor may, in an enduring power of attorney, appoint more than one attorney and may specify that the attorneys shall act—

(a) jointly,

(b) jointly and severally, or

and, in default of the power so specifying, the attorneys shall be deemed to have authority to act jointly.

(2) Where 2 or more persons have authority to act jointly as attorneys, then, in the case of the death, lack of capacity or disqualification of any one or more of them, the remaining attorney or attorneys may continue to act, whether solely or jointly, as the case may be, unless the enduring power expressly provides to the contrary.

65. Persons who are not eligible to be attorneys

65. (1) A person shall not be eligible for appointment as an attorney under an enduring power of attorney if he or she—

(a) has been convicted of an offence in relation to the person or property of the person who intends to appoint an F86[attorney, or the person or property of a child of that person],

(b) has been the subject of a safety or barring order in relation to the person who intends to appoint an F86[attorney, or a child of that person],

(c) is an undischarged bankrupt or is currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty,

(d) is a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,

(f) is a person who is—

(i) the owner or the registered provider of a designated centre or mental health facility in which the intending donor resides, or

(ii) residing with, or an employee or agent of, such owner or registered provider,

unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the intending donor, or

(g) has been convicted of an offence under F86[section 15A,34,] 80, 90 or 145.

(2) Subsection (1)(c), (d) and (e) shall not apply where it is proposed to confer authority only in relation to personal welfare matters.

66. Disqualification of attorney

66. (1) An attorney shall, with effect from the date on which an event specified in any of paragraphs (a) to (c) occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, and unless the instrument creating the enduring power of attorney provides otherwise, be disqualified from being an attorney for the donor where the attorney is the spouse of the donor and subsequently—

(a) the marriage is annulled or dissolved either—

(i) under the law of the State, or

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

(b) 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 like effect,

(d) subject to section 2(2), the spouses separate and cease to cohabit for a continuous period of 12 months.

(2) An attorney shall, with effect from the date on which an event specified in paragraph (a) or (b) occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, and unless the instrument creating the enduring power of attorney provides otherwise, be disqualified from being attorney for the donor where the attorney is the civil partner of the donor and subsequently—

(a) the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either—

(i) under the law of the State, or

(ii) under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State,

(b) a written agreement to separate is entered into between the civil partners, or

(3) Subject to section 2(2), an attorney shall, at the expiry of the period referred to in this subsection, and unless the instrument creating the enduring power of attorney provides otherwise, be disqualified from being an attorney for the donor where the attorney is the cohabitant of the donor and subsequently the cohabitants separate and cease to cohabit for a continuous period of 12 months.

(4) Subject to subsection (5), where, subsequent to the appointment of an attorney—

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Assisted Decision-Making (Capacity) Act 2015

31. F45[Regulations – Part 4

31A. F46[Matters to be specified by Director in relation to co-decision-making agreements

32. Applications to Court

33. Role of Director where nullity occurs

34. Offences in relation to co-decision-making agreements

PART 5 Applications to Court in respect of Relevant Persons and Related Matters

Chapter 1

35. Application of this Part

Chapter 2

36. Persons who may make applications to court under this Part, etc.

Chapter 3

37. Power of court to make declarations as to capacity, etc.

Chapter 4

38. Power of court to make orders and appoint decision-making representative, etc.

39. Persons who are not eligible to be decision-making representatives

40. Disqualification as decision-making representative

41. Performance of functions of decision-making representative

42. Remuneration and expenses

43. Scope of decision-making order or decision-making representation order relating to property and affairs

44. Restrictions on decision-making representatives

45. Register of decision-making representation orders

46. Reports by decision-making representative

47. Complaints in relation to decision-making representatives

Chapter 5

48. Interim orders

49. Review of declaration as respects capacity

50. Expert reports

Chapter 6

51. Notification of Director of the Decision Support Service

Chapter 7

52. Amendment of Act of 1995

PART 6 Wards

53. Definitions — Part 6

54. Review of capacity of wards who are adults

54A. F69[Assistance to ward during proceedings

55. Declarations following review and discharge from wardship

55A. F73[Review of declaration by wardship court as respects capacity

56. Saver

57. Director and wards who are adults

57A. F76[Amendment of Act of 1995 regarding Part 6

PART 7 Enduring Powers of Attorney

58. Interpretation — Part 7

58A. F78[Provisions regarding trust corporations

58B. F79[Liability of officers of trust corporation for offences

59. Enduring power of attorney — general

60. Content of instrument creating an enduring power of attorney

61. Notice of execution of an enduring power of attorney

62. Scope of authority — personal welfare decisions

63. Scope of authority — property and affairs

64. Application to joint and joint and several attorneys

65. Persons who are not eligible to be attorneys

66. Disqualification of attorney