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

(a) the attorney is convicted of an offence in relation to the person or property of the donor or the person or property of a child of the donor,

(b) a safety or barring order is made against the attorney in relation to the donor or a child of the donor,

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

(e) the attorney 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 attorney becomes—

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

(ii) a person residing with, or an employee or agent of, a person referred to in sub paragraph (i),

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

(g) the attorney is convicted of an offence under F87[section 15A, 34,] 80, 90 or 145,

(h) the attorney—

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

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

F87[(iii) has executed as a donor an enduring power of attorney that has been the subject of a notification undersection 71Athat has been accepted by the Director undersection 71Cor has executed as a donor an enduring power under the Act of 1996 that has been registered under that Act,]

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

(i) the attorney is a trust corporation and the trust corporation is dissolved,

the attorney shall be disqualified from being an attorney for the donor with effect from the day on which the attorney falls within any of paragraphs (a) to (i).

(5) Subsections (4)(c), (d) and (e) shall not apply to an attorney insofar as authority is conferred on him or her under the enduring power of attorney in relation to personal welfare matters.

(6) Where an attorney 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 an attorney 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.

67. F88[Function of court prior to acceptance of notification

67.On application to it by any interested party, the court may, where it has reason to believe that the donor of an enduring power of attorney that has been registered undersection 69lacks capacity in relation to one or more relevant decisions, exercise any power which would become exercisable undersection 77(3)on the acceptance by the Director undersection 71Cof a notification undersection 71Aand the court may do so whether or not the attorney concerned has so notified the Director.]

68. Application for registration of instrument creating enduring power

68. F89[(1) The donor, or, with the donor’s written consent, his or her attorney, shall, not later than 3 months after the date of the execution of an instrument creating an enduring power of attorney or the date of receipt of all completed supporting documentation, whichever is the later, make an application to the Director, in accordance with this Part and any regulations and specifications made thereunder, to register the instrument creating the enduring power of attorney.]

(2) An application to register an instrument under subsection (1) shall be made in such F89[form as specified by the Director undersection 79A] and accompanied by such fee as shall be prescribed.

(3) The F89[donor, or, as the case may be, his or her attorney, shall], at the same time as he or she makes an application under subsection (1), give notice, in such form as shall be F89[specified by the Director undersection 79A], of the application and give a copy of the instrument creating an enduring power of attorney to the following persons:

F89[(a) where the application was made by the attorney, the donor,]

F90[(aa) where the application was made by the donor, his or her attorney or attorneys, as the case may be,]

(b) a spouse or civil partner (if any) of the donor;

(d) any children of the donor who have attained the age of 18 years;

(e) any decision-making assistant for the donor;

(f) any co-decision-maker for the donor;

(g) any decision-making representative for the donor;

(h) any designated healthcare representative for the donor;

(i) any other attorney for the donor or attorney under the Act of 1996 in respect of the donor;

F89[(j) any other person or persons as may be specified by the donor in the instrument creating the enduring power of attorney as a person or persons to whom notice shall be given under this section andsection 71A(3)and where there are fewer than 3 persons to whom notice may be given pursuant toparagraphs (a)to(i), the donor shall so specify at least 2 persons.]

F90[(3A)Subsection (3)(b)shall not apply—

(a) in relation to the spouse of a donor, where, at the time at which the application is made undersubsection (1)—

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

(ii) a written agreement to separate has been entered into between the donor and his or her spouse, or

(iii) subject tosection 2(2), the donor and his or her spouse have separated and have ceased to cohabit for a continuous period of 12 months,

and

(b) in relation to the civil partner of a donor, where, at the time at which the application is made undersubsection (1)—

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

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

(4) F89[A donor or attorney, as the case may be, may,] before making an application to register an instrument creating an enduring power of attorney, apply to the court for a determination on any question as to the validity of the power.

(5) F91[…]

(6) F91[…]

(7) An application to register an instrument creating an enduring power of attorney shall be accompanied by—

(a) the instrument creating the enduring power of attorney,

(b) F91[…]

(c) details of any existing decision-making assistance agreement, co-decision-making agreement, decision-making order, decision-making representation order, power of attorney (whether an enduring power or otherwise and whether registered or not) or advance healthcare directive in respect of the F89[donor],

(d) a copy of any notice given pursuant to subsection (3),

F89[(e) where a trust corporation is named as an attorney, the information and documents specified by the Director undersection 58A(2), and]

(f) the prescribed fee.

(8) F91[…]

69. Registration of an instrument creating an enduring power of attorney

69. (1) On receipt of an application under section 68, the Director shall review the application and any objections received under section 71 and shall carry out such reasonable enquiries as he or she considers necessary in order to establish whether the following criteria are met:

(a) the enduring power of attorney and the instrument creating it are in accordance with sections 59, F92[60and] 63;

(b) the attorney is a suitable person within the meaning of section 59(6);

(c) the attorney is eligible for appointment within the meaning of section 65 or not disqualified by virtue of section 66;

F93[(ca) where a trust corporation is named as an attorney, that it has complied with the requirements specified by the Director undersection 58A,]

(d) notice has been given in accordance with F94[…] section 68(3); and

(e) the application is in accordance with section 68.

F93[(1A) Where the instrument creating the enduring power of attorney differs in an immaterial respect from the form specified by the Director undersection 79A(1)(a), the Director may, notwithstanding such difference, treat the enduring power of attorney and the instrument creating it as being in accordance with the form specified by the Director undersection 79A(1)(a), if he or she thinks it appropriate to do so.

(1B) If the notice requirements undersection 68(3)for registering an enduring power of attorney have not been complied with, the Director may, if he or she is satisfied that all reasonable efforts have been made to satisfy the notice requirements, treat the criteria undersubsection (1)(d)as having been met.]

(2) Where, after reviewing an application under section 68, the Director is satisfied that the application is in order, he or she shall, subject to section 71, register the instrument creating the enduring power of attorney.

(3) Where, after reviewing an application under section 68, the Director forms the view that one or more of the criteria in paragraphs (a) to (e) of subsection (1) are not satisfied, he or she shall notify the attorney and the donor of his or her view, provide reasons for that view and give the attorney and the donor an opportunity, within a reasonable timeframe specified by the Director, to respond.

(4) Following a review of any response received pursuant to subsection (3), the Director shall—

(a) where he or she is of the view that the criteria set out in paragraphs (a) to (e) of subsection (1) are satisfied, register, subject to section 71, the instrument creating the enduring power of attorney, or

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

(5) F92[A donor] whose application under section 68 is refused may, not later than 21 days after the date of issue of the notification of refusal by the Director, appeal the refusal to the court.

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

(a) require the Director to register the instrument creating the enduring power of attorney,

(b) affirm the decision of the Director, or

(7) Following registration of an instrument creating an enduring power of attorney, the Director shall send an authenticated copy of the instrument to the attorney and the donor.

(8) F92[For the purposes ofsubsection (7), a document] purporting to be a copy of an instrument creating an enduring power of attorney which has been authenticated by the Director shall be evidence of the contents of the instrument and the date upon which it was registered.

F93[(9) Once the Director has registered or has refused to register under this section an instrument creating an enduring power of attorney, the donor concerned, or, with his or her written consent, his or her attorney, shall, as soon as practicable, give notice to the persons referred to insection 68(3)(other than those to whomsubsections (3A)and(3B)of that section relate) of that registration or refusal, as the case may be, in the form specified by the Director undersection 79A.]

70. Effect and proof of registration

70. F95[…]

71. Objections to registration

71. (1) Any of the persons referred to in section 68(3), or any other person who appears to the Director to have sufficient interest or expertise in the welfare of the donor, may, no later than 5 weeks from the date on which notice is given in accordance with that provision, notify the Director that he or she objects to the proposed registration.

(2) An objection under subsection (1) shall be F96[in such form as shall be specified by the Director undersection 79A] and shall be accompanied by such fee as shall be prescribed by regulations made under section 79 and may be made on one or more of the following grounds:

(a) that the enduring power of attorney or instrument creating it is not in accordance with section 59, F96[60] or 63;

(b) that the notice requirement of F97[…] section 68(3) was not complied with;

(d) that fraud, coercion or undue influence was used to induce the donor to execute the instrument creating the enduring power of attorney;

(e) that a false statement is included in the instrument creating the enduring power of attorney or the application to register the instrument;

(f) that the attorney is not a suitable person within the meaning of section 59(6).

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

(a) review the objection,

(b) consult F96[with the donor] and, where the Director considers it is appropriate to do so, F96[with the attorney], and

and shall—

(i) where he or she is of the view that the objection is not well founded, F96[notify the donor, the attorney and the person who made the objection] of his or her view, provide reasons for that view and proceed, subject to section 69(1), to register the instrument concerned, or

F96[(ii) where he or she is of the view that the objection is well founded, notify the donor, the attorney and the person who made the objection of his or her decision and refuse to register the enduring power of attorney.]

(4) F97[…]

F96[(5) A person who has been notified undersubsection (3)of the Director’s decision may, not later than 21 days after the date of issue of the notification by the Director, appeal the decision concerned to the court.]

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

F96[(a) where the Director has made a decision to whichsubsection (3)(i)refers—

(i) declare that the objection is well founded and require the Director to remove the instrument concerned from the Register, or

(ii) affirm the decision of the Director,

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

(i) declare that the objection is not well founded and require the Director to proceed to consider, in accordance withsection 69, whether the instrument creating the enduring power of attorney should be registered, taking the court’s declaration into account, or

(ii) affirm the decision of the Director and declare that the instrument creating the enduring power of attorney should not be registered, or]

71A. F98[Notification to Director by attorney

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

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

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

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

(i) a registered medical practitioner, or

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

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

(3) The attorney shall, at the same time as he or she notifies the Director undersubsection (1), give notice in the form specified by the Director undersection 79Aof the application, and give a copy of the instrument creating an enduring power of attorney, to the following persons:

(a) the donor;

(b) a spouse or civil partner (if any) of the donor;

(d) any children of the donor who have attained the age of 18 years;

(e) any decision-making assistant for the donor;

(f) any co-decision-maker for the donor;

(g) any decision-making representative for the donor;

(h) any designated healthcare representative for the donor;

(i) any other attorney for the donor or attorney under the Act of 1996 in respect of the donor;

(j) any other person or persons that were specified by the donor in the instrument creating the enduring power of attorney as a person or persons to whom notice shall be given under this section andsection 68(3).

(4)Subsection (3)(b)shall not apply—

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

(ii) a written agreement to separate has been entered into between the donor and his or her spouse, or

(iii) subject tosection 2(2), the donor and his or her spouse have separated and have ceased to cohabit for a continuous period of 12 months,

and

(b) in relation to the civil partner of a donor, where, at the time at which the notification is made undersubsection (1)—

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

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

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

(7) Where an attorney has made a notification undersubsection (1), then pending acceptance of the notification by the Director undersection 71C, the attorney, or if more than one attorney has been appointed to act jointly or jointly and severally, as the case may be, any one of them, may take action under the enduring power of attorney in question—

(a) to maintain the donor or prevent loss to the donor’s assets,

(b) to the extent permitted by the enduring power, to make a relevant decision which cannot reasonably be deferred until the notification has been accepted, or

(8) Following the taking of an action pursuant tosubsection (7), an attorney shall report to the Director—

(a) what action he or she took,

(b) the reasons as to why the action could not be deferred until after acceptance by the Director of the notification,

(d) the outcome of the action.

(9) Where there is more than one attorney appointed under an enduring power of attorney, any two or more of the attorneys may make a joint notification undersubsection (1).]

71B. F99[Objections to acceptance by Director of notification

71B.(1) Any of the persons referred to inparagraphs (a)to(j)ofsection 71A(3)(other than those to whomsubsections (4)and(5)of that section relate), or any other person who appears to the Director to have sufficient interest or expertise in the welfare of the donor, may, no later than 5 weeks from the date on which notice is given in accordance with that provision, notify the Director that he or she objects to the proposed acceptance of the notification made undersection 71A.

(2) An objection undersubsection (1)shall be in such form as specified by the Director undersection 79Aand shall be accompanied by such fee as shall be prescribed by regulations made undersection 79and may be made on one or more of the following grounds:

(a) that the notification was not made in accordance withsection 71A;

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

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

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

(a) review the objection,

(b) consult with the attorney,

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

and shall, where he or she decides that—

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

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

(4) A person who has been notified undersubsection (3)of the Director’s decision may, not later than 21 days after the date of issue of the notification by the Director, appeal the decision concerned to the court.

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

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

(i) affirm the decision of the Director, or

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

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

(i) affirm the decision of the Director, or

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

71C. F100[Acceptance by Director of notification

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

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

(b) the application is in accordance withsection 71A.

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

(3) Where, after reviewing an application undersection 71A, the Director forms the view that one or more of the criteria inparagraphs (a)and(b)ofsubsection (1)are not satisfied, he or she shall notify the attorney and the donor of his or her view, provide reasons for that view and give the attorney and the donor an opportunity, within a reasonable timeframe specified by the Director, to respond.

(4) Following a review of any response received pursuant tosubsection (3), the Director shall—

(a) where he or she is of the view that the criteria set out inparagraphs (a)and(b)ofsubsection (1)are satisfied, accept, subject tosection 71B, the notification and note the fact of the acceptance in the Register, or

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

(5) An attorney whose notification undersection 71Ais not accepted may, not later than 21 days after the date of issue of the notification by the Director undersubsection (4)(b), appeal the refusal by the Director to accept the notification to the court.

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

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

(b) affirm the decision of the Director, or

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

(8) For the purposes ofsubsection (7), a document purporting to be a copy of an instrument creating an enduring power of attorney which has been authenticated by the Director shall be evidence of the contents of the instrument and the date upon which it was notified.

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

71D. F101[Effect and proof of acceptance by Director of notification

71D.(1) The effect of the acceptance by the Director undersection 71Cof a notification undersection 71Ais that—

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

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

(c) subject tosection 73A, the donor may not extend or restrict the scope of the authority conferred by him or her in the enduring power and no consent or instruction given by the donor after acceptance by the Director undersection 71Cof a notification undersection 71Ashall, in the case of a consent, confer any right and in the case of an instruction, impose or confer any obligation or right on or create any liability of the attorney or other persons having notice of the consent or instruction.

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

72. Register of enduring powers

72. (1) The Director shall establish and maintain a register (in this Part referred to as “the Register”) of instruments creating an enduring power of F102[attorney that have been registered by him or her undersection 69].

(2) The Register shall be in such form as the Director considers F102[appropriate, but shall specify which instruments are, and which instruments are not, the subject of a notification undersection 71Athat has been accepted by the Director undersection 71C].

(3) F102[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 under section 79 for this purpose, and

(b) any person who satisfies the Director that he or she has a legitimate interest in F102[inspecting those details of the Register].

(4) The Director may issue an authenticated copy of an F102[instrument creating an enduring power of attorney that is the subject of a notification undersection 71Athat has been accepted by the Director undersection 71C, or part thereof, and any variations to the enduring power or part thereof,] on the Register on payment of the prescribed fee to—

(a) a body or class of person prescribed by regulations made under section 79 for this purpose, and

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

F103[(4A) An authenticated copy of an instrument or part thereof, and, where applicable, any variations to the instrument or part, that is issued by the Director 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 instrument or part thereof, and where applicable, any variations to that instrument or part, as at the date and time indicated on the stamp.]

(5) The Director shall keep a record of any body or person that has inspected the Register or received an authenticated copy from him or her.

73. Revocation and variation of enduring power

73. F104[(1) An enduring power of attorney that has been registered undersection 69may be varied or revoked by the donor where the instrument creating the enduring power of attorney has not been the subject of a notification undersection 71Athat has been accepted by the Director undersection 71C.]

(2) A variation or revocation under subsection (1) shall be done in such form as shall be F104[specified by the Director undersection 79A].

(3) Subject to section 60(3), a revocation or variation of an enduring power of attorney shall be signed by the donor and his or her signature shall be acknowledged by 2 witnesses and section 60(4) shall apply with the necessary modifications.

(4) A variation or revocation of an enduring power of attorney shall be accompanied by the following statements:

(a) by the donor, that he or she understands the implication of varying or revoking the enduring power, as the case may be;

(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 implication of varying or revoking, as the case may be, the enduring power, and

(ii) has no reason to believe that the variation or revocation, as the case may be, is the result of fraud, coercion or undue pressure on the donor;

(d) F105[…]

(e) by the attorney, F104[in the case of a variation, that he or she is aware of the variation] and undertakes to act accordingly.

F106[(4A) The donor shall, as soon as practicable after the revocation of an enduring power of attorney, give notice to the attorney, in the form specified by the Director undersection 79A, of the revocation.

(4B) A variation of an enduring power of attorney may be made—

(a) subject toparagraph (b), at any time after the expiry of 6 months from the date of the registration of the instrument creating the enduring power undersection 69, and

(b) where more than one variation is made, at intervals of at least 12 months from the date of the previous variation,

unless an earlier variation in the case ofparagraph (a), or variation at more frequent intervals in the case ofparagraph (b), is agreed by the Director.]

(5) F105[…]

(6) F105[…]

73A. F107[Provisions regarding where donor regains capacity after acceptance by Director of notification

73A.(1) The following persons:

(a) the donor;

(b) on the written request of the donor to act on his or her behalf, the attorney;

(c) on the written request of the donor to act on his or her behalf, any of the persons referred to inparagraphs (a)to(j)ofsection 71A(3)(other than those to whomsubsections (4)and(5)of that section relate);

(d) on the written request of the donor to act on his or her behalf, any other person who appears to the Director to have sufficient interest or expertise in the welfare of the donor,

may, after the acceptance by the Director undersection 71Cof a notification undersection 71A—

(i) request the Director to rescind his or her acceptance as a result of the donor having regained capacity, or

(ii) request the Director to rescind his or her acceptance as a result of the donor having regained capacity and to recognise the revocation by the donor of the instrument creating the enduring power.

(2) A request underparagraph (i)or(ii), as the case may be, ofsubsection (1), shall be in the form specified by the Director undersection 79Aand shall be accompanied by—

(a) a statement by the donor that he or she understands the implications of his or her request underparagraph (i)or(ii), as the case may be, ofsubsection (1),

(b) a statement by a legal practitioner that, after interviewing the donor and making any necessary enquiries, he or she—

(i) is satisfied that the donor understands the implications of a request being made to the Director underparagraph (i)or(ii), as the case may be, ofsubsection (1),and

(ii) has no reason to believe that the request by the donor, or on his or her behalf, is the result of fraud, coercion or undue pressure on the donor,

(i) a registered medical practitioner, or

(ii) such other healthcare professional of a class as shall be prescribed by the Minister by regulations undersection 79,

that in his or her opinion the donor no longer lacks capacity in relation to the relevant decisions that are the subject of the enduring power,

(d) a statement by the attorney that he or she is aware of the request being made underparagraph (i)or(ii), as the case may be, ofsubsection (1)and undertakes to act accordingly, and

(e) in the case of a request undersubsection (1)(ii), a written notice of revocation by the donor of the instrument creating the enduring power of attorney in the form specified by the Director undersection 79A.

(3) Where the Director receives a request underparagraph (i)or(ii), as the case may be, ofsubsection (1)that is in accordance withsubsection (2), he or she shall—

(a) review the request,

(b) consult with the attorney,

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

and shall—

(i) where he or she is of the view that the request is not well founded, notify the donor, the attorney and any person who made the request on behalf of the donor at the donor’s request of his or her view, and provide reasons for that view,

(ii) in the case of a request undersubsection (1)(i), where he or she is of the view that the request is well founded—

(I) notify the donor, the attorney and any person who made the request on behalf of the donor at the donor’s request of his or her view,

(II) rescind his or her acceptance of the notification, and

(III) modify the Register accordingly,

(iii) in the case of a request undersubsection (1)(ii), where he or she is of the view that the request is well founded—

(I) notify the donor, the attorney and any person who made the request on behalf of the donor at the donor’s request of his or her view,

(II) rescind his or her acceptance of the notification,

(III) recognise the donor’s revocation of the instrument creating the enduring power, and

(IV) modify the Register accordingly.

(4) A person who receives a notification undersubsection (3)(i)may, not later than 21 days after the date of issue of the notification by the Director undersubsection (3)(i), appeal the notification concerned to the court.

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

(a) in the case of a request undersubsection (1)(i), require the Director to accept the request, rescind his or her acceptance undersection 71Cof the notification undersection 71Aand make the appropriate modifications to the Register,

(b) in the case of a request undersubsection (1)(ii), require the Director to rescind his or her acceptance undersection 71Cof the notification undersection 71A, recognise the donor’s revocation of the enduring power of attorney and make the appropriate modifications to the Register,

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

(6) Once the Director has accepted or has refused to accept under this section a request underparagraph (i)or(ii), as the case may be, ofsubsection (1), the donor concerned, or, with his or her written consent, his or her attorney, or former attorney, as the case may be, shall, as soon as practicable, give notice to the persons referred to insection 71A(3)(other than those to whomsubsections (4)and(5)of that section relate) of that acceptance or refusal, as the case may be, in the form specified by the Director undersection 79A.

(7) Where a request undersubsection (1)(i)has been accepted by the Director, the enduring power of attorney shall be deemed to be a power of attorney that has been registered undersection 69and the provisions of this Part (other thansection 71) shall apply accordingly.]

74. F108[Resignation by attorney

74.(1) An attorney—

(a) may resign from his or her role as attorney where the enduring power of attorney in which he or she has been appointed attorney has not been the subject of a notification undersection 71Athat has been accepted by the Director undersection 71C, and

(b) shall notify the donor, the Director and any other attorney appointed under the enduring power of attorney concerned of his or her resignation as soon as may be after it is made.

(2) Where there is more than one attorney appointed under an enduring power of attorney and one or more of them resigns undersubsection (1), the instrument creating the enduring power of attorney may be the subject of a notification, and enter into force, in respect of the remaining attorney or attorneys, as the case may be, unless the enduring power expressly provides to the contrary.

(3) Where an instrument creating an enduring power of attorney has been the subject of a notification undersection 71Athat has been accepted by the Director undersection 71C, an attorney may resign from his or her role as attorney under the enduring power created by the instrument only with the consent of the court.]

75. Reports by attorney

75. (1) An attorney under an enduring power of attorney which confers authority in relation to property and affairs shall, within 3 months of F109[a notification having been made undersection 71Athat has been accepted by the Director undersection 71Cin relation to the enduring power], submit to the Director a schedule of the donor’s assets and liabilities and a projected statement of the donor’s income and expenditure.

(2) An attorney under an enduring power of attorney which confers authority in relation to property and affairs F109[shall, after a notification has been made undersection 71Athat has been accepted by the Director undersection 71Cin relation to the enduring power, keep] proper accounts and financial records in respect of the donor’s income and expenditure and shall—

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

(b) make available for inspection by the F109[Director, by a general visitor] or by a special visitor, at any reasonable time, such accounts and records.

(3) An attorney shall, within 12 months after F109[a notification has been made undersection 71Athat has been accepted by the Director undersection 71Cin relation to the enduring power], 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 attorney during the relevant period.

(4) Every report submitted to the Director pursuant to this section shall be in such form as shall be F109[specified by the Director undersection 79A] and shall include details of all costs, expenses and remuneration paid to and claimed by the attorney in the relevant period together with such other matters F109[as are specified].

(5) F110[…]

(6) Where an attorney fails to submit a report in accordance with this section or submits an incomplete report or fails to comply with subsection (1) or (2), the Director shall notify the attorney of that failure or incompleteness and give him or her such period of time as is specified in the notification to comply or submit a complete report.

F109[(7) Where an attorney fails to comply with a notification undersubsection (6), the Director—

(a) may, in the case of the submission of an incomplete report and following any necessary enquiries to satisfy himself or herself that the report is substantially in accordance with this section and specifications made by him or her undersection 79A, accept the report as if it were in compliance with this section and the relevant specifications,

(b) may make such further directions with regard to the submission of the report in question as he or she considers appropriate, or

(c) may, subject tosubsection (7A)and following consultation with the donor (in so far as the Director considers it appropriate) and the attorney, make a determination that the attorney shall, as soon as may be or from a date specified by the Director, no longer act as attorney for the donor concerned.]

F111[(7A) Where the Director has made a determination undersubsection (7)(c), he or she shall notify the donor and the attorney of his or her determination, provide reasons for that determination and update the Register accordingly.

(7B) A donor or an attorney who has been notified undersubsection (7A)of the Director’s determination may, not later than 21 days after the date of issue of the notification by the Director, appeal the determination concerned to the court.]

F109[(8) Pursuant to an appeal to it undersubsection (7B), the court may—

(a) affirm the determination of the Director,

(b) declare that the attorney shall continue to act as such for the donor concerned and require the Director to update the Register accordingly, or

F109[(9) In this section, "relevant period" means the period of time to which the report relates which shall be the period of time between the date the attorney notified the Director that the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power or the date of submission of the previous report, whichever is the later, and the date immediately preceding the date of submission of the report concerned.]

76. Complaints in relation to attorneys

76. (1) A person may make a complaint in writing to the Director concerning one or more of the following matters:

(a) that an attorney has acted, is acting, or is proposing to act outside F112[the scope of, or in breach of,] his or her functions as specified in the instrument creating the enduring power of F112[attorney, or in breach of this Act];

(b) that an attorney is not a suitable person within the meaning of section 59(6);

(c) that fraud, coercion or undue pressure was used to induce a donor to appoint an F112[attorney, to vary or revoke an enduring power of attorney undersection 73, to make a request undersection 73A(1)(i)or to make a request and written notice of revocation undersection 73A(1)(ii);]

F113[(d) that the donor did not, at the time the enduring power of attorney was executed, have the capacity to make an enduring power of attorney;

(e) that the donor did not, at the time the enduring power of attorney was registered, have the capacity to register an enduring power of attorney.]

(2) A person may, in respect of an attorney under the Act of 1996, make a complaint in writing to the Director concerning one or more of the following matters:

(a) that an attorney under the Act of 1996, is acting or is proposing to act outside the scope of the enduring power under the Act of 1996;

(b) that an attorney under the Act of 1996 is unable, for whatever reason, to perform his or her duties and obligations as construed in accordance with that Act;

(c) that fraud, coercion or undue pressure was used to induce a donor under the Act of 1996 to appoint an attorney under the Act of 1996.

F113[(2A) Following the receipt of a complaint undersubsection (1)or(2)the Director shall carry out such review or investigation of the matter the subject of the complaint as he or she considers appropriate and shall, subject tosubsection (2B), form a view as to whether or not the complaint is well founded not later than 3 months after the date of his or her receipt of the complaint (in this section referred to as the "initial investigation period").

(2B) The Director may, before the date of expiry of the initial investigation period, extend the duration of his or her investigation by a period of up to 6 months from that date by sending written notice to the complainant, the person who is the subject of the complaint and the relevant person concerned giving reasons for the extension.]

(3) F112[The Director shall, as soon as is practicable after having formed a view undersubsection (2A)]—

(a) where he or she is of the view that the complaint is F112[well founded, and, in the case of a complaint undersubsection (2), notwithstanding section 12 of the Act of 1996], make an application to the court for a determination in relation to a matter specified in the F112[complaint,]

F113[(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 attorney regarding the role of the attorney would be an appropriate resolution, or

(ii) the subject matter of the complaint could be appropriately resolved undersection 96(4),

the Director may, not later than 3 months after having formed a view undersubsection (2A), 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 that view.

(4) A person who receives a notification under subsection (3)(b) may, not later than F112[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.

(5) The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an F112[investigation, to which this section shall, with any necessary modifications, apply]

F113[(5A) Wheresubsection (3)(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.

(5B) If the Director is not satisfied, following the receipt of the information or confirmation referred to insubsection (5A), that the clarification or resolution referred to in that subsection has satisfactorily resolved the complaint, the Director may make an application to the court in accordance withsubsection (3)(a)or may take such other steps as he or she considers appropriate in order to resolve the complaint.]

(6) The court may—

(a) pursuant to an application to it under subsection (3)(a) F114[…], or

(b) pursuant to an appeal under F112[subsection (4)or(6B)(b)],

make a determination in relation to a matter specified in subsection (1) or (2) and may, if it considers it appropriate, determine that—

(i) an attorney shall no longer act as such in relation to the donor F112[concerned, and that the Register shall be amended accordingly] or

(ii) an attorney under the Act of 1996 shall no longer act as such in relation to a donor under the Act of F112[1996, and that the registration of the instrument creating the enduring power under the Act of 1996 shall be cancelled, and such cancellation shall have the same effect as if the registration had been cancelled by the High Court under the Act of 1996.]

F113[(6A) The Director shall, in accordance with this section, investigate a complaint undersubsection (1)or (2) unless in his or her opinion there has been undue delay in making the complaint.

(6B) A decision by the Director undersubsection (6A)not to investigate a complaint—

(a) shall be in writing, shall contain the reasons for the decision and shall be sent to the complainant as soon as possible after it is made, and

(b) may be appealed by the complainant to the court not later than 3 months after the date of receipt by the complainant of the decision.]

(7) The reference to “attorney” in F112[section 95] shall, for the purposes of this section, be construed as including an attorney under the Act of 1996.

(8) The reference to “relevant person” in F112[sections 95and99] shall, for the purposes of this section, be construed as including a donor under the Act of 1996.

77. Applications to court

77. (1) Where the Director makes an application to the court for a determination on whether the instrument creating an enduring power of attorney should be registered, the court may, notwithstanding that—

(a) the enduring power of attorney or the instrument creating it does not comply with section 59 or section 60, or

(b) the application to register the instrument was not in accordance with section 68,

(i) the donor intended the power to be effective during any period when the donor lacks capacity,

(ii) fraud, coercion or undue pressure was not used to induce the donor to appoint an attorney,

(iii) the attorney is suitable within the meaning of section 59(6) to be the donor’s attorney, and

(iv) it is desirable in the interests of justice to register the enduring power.

(2) In determining whether an attorney is suitable within the meaning of section 59(6), the court, in addition to any other matters which it considers relevant shall have regard to—

(a) the relationship and degree of connection between the donor and the attorney,

(b) the degree of involvement which will be required on the part of the attorney in the care of the donor,

(d) any conflict of interest which may arise.

(3) Where an instrument creating an enduring power of attorney has been F115[the subject of a notification undersection 71Athat has been accepted by the Director undersection 71C], the court may, whether on application by the donor, the attorney, the Director or an interested party—

(a) determine any question as to the meaning or effect of the power,

(b) give directions with respect to—

(i) a relevant decision relating to the personal welfare of the donor made or about to be made by the attorney,

(ii) the management or disposal by the attorney of the property and affairs of the donor, and

(iii) the remuneration or expenses of the attorney, whether or not in default of or in accordance with any provision of the enduring power, including directions for the repayment of excessive, or the payment of additional, remuneration,

and

F115[(c) consent to a resignation by the attorney of his or her role as attorney under the enduring power of attorney.]

(4) Where the court gives a determination under subsection (3)(a), a direction under subsection (3)(b) or a consent under subsection (3)(c), it shall cause the Director to be notified of such direction or consent and the Director shall monitor the giving of effect by the attorney to such direction or consent as the case may be.

78. Removal of instrument from the Register

78. (1) The Director shall remove from the Register an instrument creating an enduring power of attorney where—

(a) there has been a revocation in accordance with F116[section 73A], or

(b) subject to subsection (2), the attorney appointed under the instrument becomes F116[disqualified, dies, resigns from his or her role as attorney or is unable to act].

F116[(2) In the circumstances described insubsection (1)(b), where there is at least one attorney remaining due to—

(a) the donor having appointed more than one attorney under an enduring power of attorney, or

(b) the donor having specified a person to act as attorney for him or her in the event that the attorney on whom the authority is conferred is disqualified, dies, resigns from his or her role as attorney or is unable to act,

the Director shall not remove the instrument from the Register, but shall note on the Register in connection with the power concerned the disqualification, death, resignation or inability to act, as the case may be.]

79. F117[Regulations - Part 7

79.(1) The Minister may make regulations for the purpose of giving this Part full effect.

(2) Without prejudice to the generality ofsubsection (1), the Minister shall, having regard to the requirements of this Part, prescribe by regulations the following matters:

(a) the class of healthcare professionals undersections 60(1)(c)(ii),71A(2)(b)(ii)and73A(2)(c)(ii);

(b) the bodies or classes of persons undersubsections (3)(a)and(4)(a)ofsection 72who may inspect the Register and receive an authenticated copy of an enduring power of attorney;

F118[(c) ...]

(d) the fees to be paid in connection with the operation ofPart 7, including in connection with—

(i) an application to register an enduring power of attorney,

(ii) an objection to an application to register an enduring power of attorney,

(iii) a notification to the Director by an attorney undersection 71A,

(iv) an objection undersection 71B(1),

(v) the issue of an authenticated copy of an enduring power of attorney or part thereof undersection 72(4),

(vi) the variation of an enduring power of attorney, and

(vii) the revocation of an enduring power of attorney,

and

(e) the circumstances in which the fees referred to inparagraph (d)may be waived by the Director.

(3) In prescribing the matters referred to inparagraphs (d)and(e)ofsubsection (2), the Minister shall take into account the nature of the matter for which the fee is being charged, the costs associated with that matter and the need to ensure the protection of the assets and funds of a donor.]

79A. F119[Matters to be specified by Director in relation to enduring powers of attorney

79A.(1) The Director may, with the consent of the Minister, specify in writing the following:

(a) the form of an instrument creating an enduring power of attorney;

(b) the form of application undersection 68(2)to register an instrument;

(d) the form of notice by a donor, or, with his or her written consent, his or her attorney, undersection 69(9);

(e) the form of an objection undersection 71(2)to the registration of an instrument;

(f) the form undersection 71A(1)to notify the Director that a donor lacks capacity in relation to one or more relevant decisions that are the subject of an instrument creating an enduring power of attorney that was registered by the donor;

(g) the form of notice undersection 71A(3)of a notification to the Director;

(h) the form of an objection undersection 71Bto the acceptance of a notification by the Director;

(i) the form of notice by an attorney undersection 71C(9);

(j) the form of variation or revocation undersection 73(2)of an enduring power of attorney;

(k) the form of a request to the Director undersection 73A(1)(i);

(l) the form of a request to the Director undersection 73A(1)(ii)and the accompanying written notice of revocation to whichsection 73A(2)(e)refers;

(m) the form of notice undersection 73(4A)of revocation of an enduring power of attorney;

(n) the form of notice undersection 73A(6);

(o) the form of a report undersection 75to be submitted by an attorney to the Director,

and the forms may contain such further information as the Director considers appropriate.

(2) When making a specification undersubsection (1), the Director shall—

(a) take into account the guiding principles specified in section 8 and the other provisions of this Act,

(b) ensure that the forms are easy to read and to understand,

(d) take into account the different persons or classes or persons that will be using or reading the forms.]

80. Offences in relation to enduring powers of attorney

80. (1) A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke an enduring power of attorney 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 instrument creating an enduring power of attorney, in an application for registration of an enduring power of attorney, or in connection with F120[such an application, or in a notification to the Director undersection 71Aor in connection with such a notification,] 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, create, vary or revoke an enduring power of attorney.

81. Transitional provisions

81. (1) Subject to F121[subsections (2)to(8)ofsection 76], this Part shall not apply to—

(a) an enduring power of attorney under the Act of 1996,

(b) an attorney under the Act of 1996, and

(2) From the date of commencement of this Part—

(a) a person shall not create an enduring power of attorney under the Act of 1996, and

(b) the Act of 1996 shall not apply to an enduring power of attorney created after that date.

PART 8 Advance Healthcare Directives

82. Definitions — Part 8

82. In this Part—

“advance healthcare directive”—

(a) in relation to a person who has capacity, means an advance expression made by the person, in accordance with section 84, of his or her will and preferences concerning treatment decisions that may arise in respect of him or her if he or she subsequently lacks capacity, and

(b) in relation to a designated healthcare representative, means the advance expression referred to in paragraph (a) under which the representative was designated as such representative,

which has not been revoked pursuant to section 84(7);

“applicable”, in relation to an advance healthcare directive, shall be construed in accordance with section 85;

“designated healthcare representative”, in relation to a directive-maker, means the named individual designated, pursuant to section 87, by the directive-maker, in his or her advance healthcare directive, to exercise the relevant powers;

“directive-maker”—

(a) in relation to an advance healthcare directive, means the person who made the directive, and

(b) in relation to a designated healthcare representative, means the person who made the advance healthcare directive under which the representative was designated as such representative;

“Minister” means the Minister for Health;

“relevant powers”, in relation to a designated healthcare representative, means—

(a) the power conferred on the representative under section 88(1)(a), and

(b) the powers (if any) conferred on the representative in accordance with section 88(1)(b);

F123[…]

“valid”, in relation to an advance healthcare directive, shall be construed in accordance with section 85;

“writing” includes voice and video recording and speech recognition technologies.

83. Purpose of this Part

83. (1) The purpose of this Part is to—

(a) enable persons to be treated according to their will and preferences, and

(b) provide healthcare professionals with information about persons in relation to their treatment choices.

(2) A relevant person who has attained the age of 18 years and who has capacity is entitled to refuse treatment for any reason (including a reason based on his or her religious beliefs) notwithstanding that the refusal—

(a) appears to be an unwise decision,

(b) appears not to be based on sound medical principles, or

84. Making of advance healthcare directives, etc.

84. (1) A person who has attained the age of 18 years and who has capacity may make an advance healthcare directive.

(2) A refusal of treatment set out in an advance healthcare directive shall be complied with if the following 3 conditions are met:

(a) at the time in question the directive-maker lacks capacity to give consent to the treatment;

(b) the treatment to be refused is clearly identified in the directive;

(3) (a) A request for a specific treatment set out in an advance healthcare directive is not legally binding but shall be taken into consideration during any decision-making process which relates to treatment for the directive-maker if that specific treatment is relevant to the medical condition for which the directive-maker may require treatment.

(b) Where a request for a specific treatment set out in an advance healthcare directive is not complied with in a decision-making process referred to in paragraph (a), the healthcare professional concerned, involved in that decision-making process, shall—

(i) record the reasons for not complying with the request in the directive- maker’s healthcare record, and

(ii) give a copy of those reasons as so recorded to the person’s designated healthcare representative (if any) as soon as is practicable after they have been recorded but, in any case, not later than 7 working days after they have been recorded.

(4) An advance healthcare directive shall be in writing.

(5) (a) An advance healthcare directive shall contain the following:

(i) the name, date of birth and contact details of the directive-maker;

(ii) subject to paragraph (b), the signature of the directive-maker, and the date that the directive-maker signed the directive;

(iii) the name, date of birth and contact details of the designated healthcare representative (if any);

(iv) the signature of the designated healthcare representative (if any) and the date that the representative signed the directive;

(v) the signatures of the 2 witnesses referred to in subsection (6)(a).

(b) An advance healthcare directive may be signed on behalf of the directive-maker by a person who has attained the age of 18 years and who is not one of the witnesses referred to in subsection (6)(a) if—

(i) the directive-maker is unable to sign the directive,

(ii) the directive-maker is present and directs that the directive be signed on his or her behalf by that person, and

(iii) the signature of the person is witnessed in accordance with subsection (6)(b).

(6) (a) The directive-maker, or the person signing on his or her behalf in accordance with subsection (5), and the designated healthcare representative (if any) shall sign the advance healthcare directive in the presence of each other (where applicable) and in the presence of 2 witnesses—

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

(ii) of whom at least one is not an immediate family member of the directive-maker.

(b) Each of the witnesses referred to in paragraph (a) shall witness the signature of the directive-maker or the person signing on his or her behalf and the signature of the designated healthcare representative (if any) by applying his or her own signature to the advance healthcare directive.

(7) (a) A directive-maker who has capacity may revoke his or her advance healthcare directive in writing.

(b) Subject to paragraph (c), a directive-maker who has capacity may, in writing, alter his or her advance healthcare directive.

(c) An alteration referred to in paragraph (b) of an advance healthcare directive is of no effect unless it is signed and witnessed in accordance with subsections (5) and (6) as if the alteration itself were an advance healthcare directive.

(8) An advance healthcare directive made outside the State but which substantially complies with the requirements of this Part applicable to an advance healthcare directive shall have the same force and effect in the State as if it were made in the State.

(9) The Minister may, for the guidance of persons wishing to make advance healthcare directives, specify forms of such directives, not inconsistent with this Part, that such persons may use or adapt in making their respective advance healthcare directives.

(10) The Minister’s power under subsection (9) may be exercised in such a way as to specify forms of advance healthcare directives to provide for particular circumstances or particular cases, as the Minister thinks appropriate.

(11) The Minister may publish any forms of advance healthcare directives that he or she has specified under subsection (9) in such manner that he or she thinks appropriate, including by the use of a website on the internet.

(12) The Minister may make regulations as respects advance healthcare directives, including regulations relating to—

(a) requiring the directive-maker to give notice of the making of an F124[advance healthcare directive, or any revocation or alteration thereof,]—

(i) to the Director, and

(ii) to other specified persons, and whether or not by reference to persons who, under this Act, are required to be notified of an application made under this Act,

and

F124[(b) subject tosubsection (12A), requiring the Director to establish and maintain a register (in this section referred to as the "register") of advance healthcare directives and any revocations or alterations thereof, that are so notified to him or her and that are made in accordance with this section.]

F125[(12A) The Director shall arrange for the review of advance healthcare directives, or any revocation or alteration thereof, that are notified to him or her in accordance with regulations made undersubsection (12), in order to verify that they comply with this section and once compliance has been so verified, such directives, revocations or alterations may be included in the register.

(12B) The register shall be in such form as the Director considers appropriate.

(12C) The Director shall make such details of the register as he or she shall specify available for inspection—

(a) by or on behalf of healthcare professionals, where such inspection is necessary to obtain information about a person’s treatment choices for the purpose of the treatment of the person,

(b) by a designated healthcare representative of a person who has made an advance healthcare directive, in relation to that advance healthcare directive, and

(c) by or on behalf of any other person who, on having provided a reasoned request to the Director, satisfies the Director that he or she has a legitimate interest, having regard to the purposes of this Part, in inspecting those details of the register.

(12D) The Director may issue an authenticated copy of an advance healthcare directive to—

(a) healthcare professionals, where receipt of an authenticated copy is necessary to obtain information about a person’s treatment choices for the purpose of the treatment of the person,

(b) a designated healthcare representative of a person who made an advance healthcare directive, and

(c) any other person who, on having provided a reasoned request to the Director, satisfies the Director that he or she has a legitimate interest, having regard to the purposes of this Part, in receiving the authenticated copy.

(12E) The Director shall keep a record of any body or person that has inspected the register or received an authenticated copy from him or her.

(12F) An authenticated copy of an advance healthcare directive, and, where applicable, any alterations thereof, that is issued by the Director undersubsection (12D)and stamped by the Director with a time and date stamp (which may be by automated means), shall be evidence of the contents of the directive, and, where applicable, any alterations thereof, as at the date and time indicated on the stamp.]

(13) 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.

85. Validity and applicability of advance healthcare directive

85. (1) An advance healthcare directive is not valid if the directive-maker—

(a) did not make the directive voluntarily, or

(b) while he or she had capacity to do so, has done anything clearly inconsistent with the relevant decisions outlined in the directive.

(2) An advance healthcare directive is not applicable if—

(a) at the time in question the directive-maker still has capacity to give or refuse consent to the treatment in question,

(b) the treatment in question is not materially the same as the specific treatment set out in the directive that is requested or refused, or

(c) at the time in question the circumstances set out in the directive as to when the specific treatment is to be requested or refused, as the case may be, are absent or not materially the same.

(3) An advance healthcare directive is not applicable to life-sustaining treatment unless this is substantiated by a statement in the directive by the directive-maker to the effect that the directive is to apply to that treatment even if his or her life is at risk.

(4) (a) An advance healthcare directive is not applicable to the administration of basic care to the directive-maker.

(b) In paragraph (a) “basic care” includes (but is not limited to) warmth, shelter, oral nutrition, oral hydration and hygiene measures but does not include artificial nutrition or artificial hydration.

(5) Where an ambiguity arises as to the validity or applicability of an advance healthcare directive—

(a) the healthcare professional concerned shall, in an effort to resolve the ambiguity —

(i) consult with the directive-maker’s designated healthcare representative (if any) or, if there is no designated healthcare representative, the directive-maker’s family and friends, and

(ii) seek the opinion of a second healthcare professional,

and

(b) if, after the healthcare professional has complied with paragraph (a), the ambiguity still has not been resolved, the healthcare professional shall resolve the ambiguity in favour of the preservation of the directive-maker’s life.

(6) F126[…]

(7) F127[(a) Subject tosubsections (1)to(5)andparagraph (b), an advance healthcare directive shall, insofar as provided for by this Part, be complied with unless, at the time when it is proposed to treat the directive-maker—

(i) his or her treatment is regulated by Part 4 of the Act of 2001, other than where he or she is detained under that Act on the grounds that he or she is suffering from a mental disorder within the meaning of section 3(1)(b) of that Act, or

(ii) he or she is the subject of a conditional discharge order under section 13A of the Criminal Law (Insanity) Act 2006,

and sections 56, 57, 59 and 60 of the Act of 2001 shall be construed accordingly.]

(b) Notwithstanding paragraph (a), where a refusal of treatment set out in an advance healthcare directive by a directive-maker relates to the treatment of a physical illness not related to the amelioration of a mental disorder of the directive-maker, the refusal shall be complied with.

86. Effect of advance healthcare directive

86. (1) A specific refusal of treatment set out in an advance healthcare directive is as effective as if made contemporaneously by the directive-maker when he or she had capacity to make that decision.

(2) (a) Nothing in this Part shall be construed as imposing any civil or criminal liability on a healthcare professional who has complied, or purportedly complied, with a refusal of treatment set out in an advance healthcare directive and who, at the time in question, had reasonable grounds to believe, and did believe, that the advance healthcare directive was valid and applicable.

(b) Nothing in this Part shall be construed as imposing any civil or criminal liability on a healthcare professional who has not complied with a refusal of treatment set out in an advance healthcare directive and who, at the time in question, had reasonable grounds to believe, and did believe, that the advance healthcare directive was not valid or applicable, or both.

(3) Nothing in this Part shall be construed as imposing any civil or criminal liability on a healthcare professional who has, at the time in question, not acted in compliance with a refusal of treatment set out in an advance healthcare directive if—

(a) he or she had, at that time, no grounds to believe that the directive existed, or

(b) he or she had, at that time, grounds to believe that the directive existed but—

(i) had no immediate access to the directive or its contents, and

(ii) the urgency of the medical condition of the directive-maker was such that the healthcare professional could not reasonably delay taking appropriate medical action until he or she did have such access.

(4) Nothing in this Part shall be construed as affecting any civil or criminal liability of a person that might otherwise arise under the common law or an enactment (other than this Act) as a result of a failure to comply with a valid and applicable advance healthcare directive.

(5) Nothing in this Part shall be taken to affect—

(a) the law relating to murder or manslaughter, or

(b) the operation of section 2 of the Criminal Law (Suicide) Act 1993.

87. Designated healthcare representative

87. (1) (a) Subject to subsection (2), a directive-maker may designate, in his or her advance healthcare directive, a named individual to exercise the relevant powers.

(b) If the designated individual agrees to exercise the relevant powers, he or she shall sign the advance healthcare directive to confirm his or her willingness to do so in accordance with the known will and preferences of the directive-maker as determined by reference to the directive.

(2) Subject to subsection (3), an individual shall not be eligible to be a designated healthcare representative if—

(a) the individual has not attained the age of 18 years,

(b) the individual has been convicted of an offence in relation to the person or property of the directive-maker or the person or property of a child of the directive-maker,

(c) a safety or barring order has been made against the individual in relation to the directive-maker or a child of the directive-maker,

(d) the individual is—

(i) the owner or the registered provider of a designated centre or mental health facility in which the directive-maker resides, or

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

unless the individual is a spouse, civil partner, cohabitant, parent, child or sibling of the directive-maker, or

(e) the individual provides personal care or healthcare services to the directive-maker for compensation unless the individual is—

(i) a spouse, civil partner, cohabitant, parent, child or sibling of the directive-maker, or

(ii) the primary carer of the directive-maker.

(3) Where, subsequent to the designation of an individual as a designated healthcare representative—

(a) the individual is convicted of an offence in relation to the person or property of the directive-maker or the person or property of a child of the directive-maker,

(b) a safety or barring order is made against the individual in relation to the directive- maker or a child of the directive-maker,

(i) the owner or the registered provider of a designated centre or mental health facility in which the directive-maker resides, or

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

unless the individual is a spouse, civil partner, cohabitant, parent, child or sibling of the directive-maker,

(d) the individual provides personal care or healthcare services to the directive-maker for compensation where the individual is not—

(i) a spouse, civil partner, cohabitant, parent, child or sibling of the directive- maker, or

(ii) the primary carer of the directive-maker, or

(e) the individual is unable, for whatever reason, to exercise the relevant powers,

that individual shall not, from the date on which he or she falls within any of paragraphs (a) to (e), be permitted to exercise relevant powers.

(4) A designated healthcare representative acts as the agent of the directive-maker when he or she exercises the relevant powers.

(5) Unless otherwise provided in the advance healthcare directive, a designated healthcare representative shall not, 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, be permitted to exercise relevant powers where the representative is the spouse of the directive-maker 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.

(6) Unless otherwise provided in the advance healthcare directive, a designated healthcare representative shall not, with effect from the date on which an event specified in paragraphs (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 permitted to exercise relevant powers where the representative is the civil partner of the directive-maker 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

(7) Subject to section 2(2) and unless otherwise provided in the advance healthcare directive, a designated healthcare representative shall not, with effect from the expiry of the period referred to in this subsection, be permitted to exercise relevant powers where the representative is the cohabitant of the directive-maker and the cohabitants separate and cease to cohabit for a continuous period of 12 months.

88. Functions and scope of authority of designated healthcare representatives

88. (1) (a) A designated healthcare representative has, by virtue of this paragraph, the power to ensure that the terms of the advance healthcare directive are complied with.

(b) A directive-maker may, in his or her advance healthcare directive, confer on his or her designated healthcare representative one or both of the following powers:

(i) the power to advise and interpret what the directive-maker’s will and preferences are regarding treatment as determined by the representative by reference to the relevant advance healthcare directive;

(ii) the power to consent to or refuse treatment, up to and including life-sustaining treatment, based on the known will and preferences of the directive-maker as determined by the representative by reference to the relevant advance healthcare directive.

(2) Nothing in this Part shall be construed as imposing any civil or criminal liability on a designated healthcare representative who, in exercising his or her relevant powers, acted in good faith and in accordance with what, at the time in question, he or she reasonably believed to be the will and preferences of the relevant directive-maker by reference to the relevant advance healthcare directive.

(3) A designated healthcare representative shall—

(a) as soon as is practicable after making a relevant decision but, in any case, not later than 7 working days after making the decision, make and keep a record in writing of the decision, and

(b) produce that record for inspection at the request of—

(i) the directive-maker if he or she has regained capacity, or

(ii) the Director.

(4) (a) The Director shall receive and consider complaints and allegations in relation to the way in which a designated healthcare representative is exercising his or her relevant powers.

F128[(b) The Director—

(i) shall review any complaint referred to inparagraph (a)and shall, if satisfied that the complaint has substance, conduct an investigation into the matter, or

(ii) may, notwithstanding that no complaint has been received, on his or her own initiative conduct an investigation in relation to the way in which a designated healthcare representative is exercising his or her relevant powers.]

(i) take no further action, or

(ii) make an application to the court.

(5) The court may determine an application under subsection (4)(c) by—

(a) if it is satisfied that the designated healthcare representative has behaved, is behaving or is proposing to behave in a manner outside the scope of his or her relevant powers, making an order prohibiting the representative from exercising those powers with effect from the date, or the occurrence of the event, specified in the order for the purpose, or

(b) if it is not so satisfied, declining to make any such order.

(6) (a) A designated healthcare representative may only exercise the relevant powers when and for so long as the directive-maker lacks capacity.

(b) A designated healthcare representative shall not delegate any of the relevant powers and, accordingly, any instrument purporting to effect such a delegation is void.

(7) A directive-maker may designate, in his or her advance healthcare directive, a named individual to be the directive-maker’s alternate designated healthcare representative if the original designated healthcare representative dies, or is unable, for whatever reason, to exercise the relevant powers, provided that the named individual is eligible to act as such under section 87 at the time concerned, and, accordingly, the other provisions of this Part shall, with all necessary modifications, be construed to take account of any such advance healthcare directive.

89. Role of courts

89. (1) On an application (being an application that does not involve considerations relating to life-sustaining treatment) made to it by any interested party, the court may make a declaration as to whether—

(a) an advance healthcare directive is valid,

(b) an advance healthcare directive is applicable, or

(2) On an application (being an application that involves considerations relating to life-sustaining treatment) made to it by any interested party, the High Court may make a declaration as to whether—

(a) an advance healthcare directive is valid,

(b) an advance healthcare directive is applicable, or

(3) Whilst awaiting a decision of the High Court relating to an application under subsection (2), nothing in the advance healthcare directive concerned shall be construed to prevent a person from—

(a) providing life-sustaining treatment to the directive-maker, or

(b) doing any act which he or she reasonably believes to be necessary to prevent—

(i) a serious deterioration in the health of the directive-maker, or

(ii) if the directive-maker is a pregnant woman, a deleterious effect on F129[her pregnancy].

90. Offences in relation to advance healthcare directives

90. (1) A person who uses fraud, coercion or undue influence to force another person to make, alter or revoke an advance healthcare directive 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 knowingly creates, falsifies or alters, or purports to revoke, an advance healthcare directive on behalf of another person without that other person’s consent in writing when the other person has the capacity to do so 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.

(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, alter or revoke an advance healthcare directive.

91. Codes of practice

91. (1) In this section—

“body concerned”, in relation to a person concerned, means the body responsible for hearing complaints about failures to maintain professional standards in respect of the profession practised by the person concerned;

“code of practice” includes part of a code of practice and, in relation to a code of practice published under subsection (3), means such code as is in force from time to time under this section;

“person concerned”, in relation to a code of practice, means a person for whom the code is providing guidance;

“working group” means the working group established under subsection (2).

(2) The Minister shall establish a multidisciplinary working group of suitable persons willing and able to make recommendations to the Director in relation to codes of practice.

(3) The Director may prepare and publish a code of practice, based (whether in whole or in part) on recommendations made to him or her by the working group as to the contents of the code, for the purposes of the guidance of designated healthcare representatives or healthcare professionals, or both, or with respect to such other matters concerned with this Part as the Director thinks appropriate.

(4) The Director shall, before publishing a code of practice pursuant to his or her power under subsection (3) —

(a) make available, to the persons whom the Director considers appropriate having regard to the matters to which the code relates, in such manner as the Director considers appropriate, a draft of the code,

(b) invite the persons to whom he or she has made the draft available to make representations in writing on it to the Director within a period determined by the Director, being a period of not less than 30 days from the date of making the draft available to those persons,

(d) make, after consultation with the working group, any modifications that he or she considers appropriate to the draft.

(5) The Director shall not publish a code of practice under subsection (3) except with the consent of the Minister.

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