Assisted Decision-Making (Capacity) Act 2015

• (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) F58[…]

• (6) F58[…]

• (7) F58[…]

• (8) F58[…]

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) F59[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 F59[inspecting those details of the Register].

• (4) The Director may issue an authenticated copy of a decision-making representation order, F59[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.

• F60[(5) An authenticated copy of a decision-making representation order or part thereof, or, where applicable, any variations to the order or part thereof, that is issued by the Director under subsection (4) and stamped by the Director with a time and date stamp (which may be by automated means), shall be evidence of the contents of the order or part thereof, or where applicable, of any variations to the order or part thereof, as at the date and time indicated on the stamp.

• (6) The Director shall keep a record of any body or person that has inspected the Register or received an authenticated copy of a decision-making representation order, or part thereof, or where applicable, of any variations to the order or part thereof, from him or her.]

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 F61[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) F62[…]

• (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 F61[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 F61[specifications made by the Director under subsection (3)], accept the report as if it were in compliance with this section and the F61[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 F63[one or both of] the following matters:

• (a) that a decision-making representative has acted, is acting, or is proposing to act outside F63[the scope of, or in breach of,] his or her functions as specified in the decision-making representation F63[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.

• F64[(1A) Following the receipt of a complaint under subsection (1) the Director shall carry out such review or investigation of the matter the subject of the complaint as he or she considers appropriate and shall, subject to subsection (1B), form a view as to whether or not the complaint is well founded not later than 3 months after the date of his or her receipt of the complaint (in this section referred to as the "initial investigation period").

• (1B) The Director may, before the date of expiry of the initial investigation period, extend the duration of his or her investigation by a period of up to 6 months from that date by sending written notice to the complainant, the person who is the subject of the complaint and the relevant person concerned giving reasons for the extension.]

• (2) F63[The Director shall, as soon as is practicable after having formed a view under subsection (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 F63[complaint,]

• F64[(aa) notwithstanding paragraph (a), where he or she is of the view that the complaint is well founded and that—

• (i) the provision of clarification by him or her to the decision-making representative regarding the role of the decision-making representative would be an appropriate resolution, or

• (ii) the subject matter of the complaint could be appropriately resolved under section 96(4),

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

• (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 F63[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 F63[investigation, to which this section shall, with any necessary modifications, apply].

• F64[(4A) Where subsection (2)(aa) applies and the Director has provided the clarification referred to in subparagraph (i) of that subsection or has resolved the complaint under section 96(4) as referred to in subparagraph (ii) of that subsection, the Director may—

• (a) request further information regarding the outcome of the clarification or resolution, as the case may be, or

• (b) request confirmation that the complaint has been resolved,

from the complainant, the person who is the subject of the complaint or the relevant person, as the Director considers appropriate.

• (4B) If the Director is not satisfied, following the receipt of the information or confirmation referred to in subsection (4A), that the clarification or resolution referred to in that subsection has satisfactorily resolved the complaint, the Director may make an application to the court in accordance with subsection (2)(a) or may take such other steps as he or she considers appropriate in order to resolve the complaint.]

• (5) The court may—

• (a) pursuant to an application to it under subsection (2)(a) F65[…], or

• (b) pursuant to an appeal under F63[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 F63[concerned, and that the Register shall be amended accordingly].

• F64[(6) The Director shall, in accordance with this section, investigate a complaint under subsection (1) unless in his or her opinion there has been undue delay in making the complaint.

• (7) A decision by the Director under subsection (6) not to investigate a complaint—

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

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

Chapter 5 Interim orders, reviews and expert reports

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

• (c) in the opinion of the court, it is in the interests of the relevant person to make the order without delay.

• (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 F66[…],

• (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

• (c) reports from healthcare professionals, or other relevant experts, relating to the relevant person.

Chapter 6 Notification of Director of the Decision Support Service of declarations, etc., under this Part

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 Legal aid in respect of applications under this Part

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), F67[…]” 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 F68[advice, and]”,

• (c) in section 28 by inserting after subsection (3) the following:

• “(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. F69[(1) An application for a declaration under section 55(1) in respect of a ward who has attained the age of 18 years by the date of commencement of this Part may be made to the wardship court at any time—

• (a) by the ward,

• (b) by the committee of the ward, or

• (c) with the consent of the wardship court, by—

• (i) a relative or friend of the ward who has had such personal contact with the ward over such period of time that a relationship of trust exists between them, or

• (ii) such other person as appears to the wardship court to have a sufficient interest in, or expertise in relation to, the welfare of the ward.]

• (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) F69[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.

• F70[(2A) In any matter before the wardship court under subsection (1) or (2)—

• (a) the wardship court may, in relation to that matter, extend the time period specified in subsection (2) for a declaration under section 55(1) where the wardship court is satisfied that—

• (i) good reason has been shown as to why that time period will not be met, and

• (ii) it is in the interests of justice to do so, and, where the court so extends the time period, subsection (2) shall thereafter be construed accordingly in relation to that matter,

• (b) the time period of any extension granted under paragraph (a) shall, subject to paragraph (g), be such period as the wardship court considers necessary and proportionate in the circumstances of the case,

• (c) the wardship court may extend the time period granted under paragraph (a) where the wardship court is satisfied that—

• (i) exceptional circumstances have been shown as to why a further extension of time will be required, and

• (ii) it is in the interests of justice to do so, and, where the court so extends the time period, subsection (2) shall thereafter be construed accordingly in relation to that matter,

• (d) the time period of any extension granted under paragraph (c) shall, subject to paragraph (g), be such further period as the wardship court considers necessary and proportionate in the circumstances of the case,

• (e) the wardship court may discharge, or, subject to this subsection, vary on such terms as it considers fit, any order made under paragraph (a) or (c) at any stage,

• (f) where the ward has not participated in the making of an order under this subsection, he or she shall be notified of the making of any such order as soon as practicable after its making, and

• (g) any extensions of time granted in respect of any matter by the wardship court pursuant to this subsection shall not exceed an overall time period of 18 months or extend beyond 25 October 2027, whichever is the earlier.]

• (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.

• F70[(3A) In any matter before the wardship court under subsection (3)—

• (a) the wardship court may, in relation to that matter, extend the time period specified in subsection (3) for a declaration under section 55(1) where the wardship court is satisfied that—

• (i) good reason has been shown as to why that time period will not be met, and

• (ii) it is in the interests of justice to do so, and, where the court so extends the time period, subsection (3) shall thereafter be construed accordingly in relation to that matter,

• (b) the time period of any extension granted under paragraph (a) shall, subject to paragraph (g), be such period as the wardship court considers necessary and proportionate in the circumstances of the case,

• (c) the wardship court may extend the time period granted under paragraph (a) where the wardship court is satisfied that—

• (i) exceptional circumstances have been shown as to why a further extension of time will be required, and

• (ii) it is in the interests of justice to do so, and, where the court so extends the time period, subsection (3) shall thereafter be construed accordingly in relation to that matter,

• (d) the time period of any extension granted under paragraph (c) shall, subject to paragraph (g), be such further period as the wardship court considers necessary and proportionate in the circumstances of the case,

• (e) the wardship court may discharge, or, subject to this subsection, vary on such terms as it considers fit, any order made under paragraph (a) or (c) at any stage,

• (f) where the ward has not participated in the making of an order under this subsection, he or she shall be notified of the making of any such order as soon as practicable after its making, and

• (g) any extensions of time granted in respect of any matter by the wardship court pursuant to this subsection shall not exceed an overall time period of 18 months.]

54A. F71[Assistance to ward during proceedings

54A. F72[(1) ...

• (2) ...]

• (3) Proceedings under section 54 shall 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 F73[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 F73[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 F73[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 F73[that person.]

• (4) Where the F73[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 F73[person the subject of the declaration after his or her discharge from wardship], or

• (b) a co-decision-making agreement in respect of the F73[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 F73[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

• F73[(ii) discharge the ward from wardship upon the appointment of a decision-making representative in respect of him or her, and

• (iii) order that the property of the person the subject of the discharge under paragraph (ii) be returned to him or her upon the appointment of a decision-making representative in respect of him or her.]

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

• (a) make F73[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

• F73[(b) discharge the ward from wardship upon the appointment of a decision-making representative in respect of him or her, and]

• F74[(c) order that the property of the person the subject of the discharge from wardship under paragraph (b) be returned to him or her upon the appointment of a decision-making representative in respect of him or her.]

• F74[(6) Where the wardship court is making an order or giving a direction under Part 5, to which subsection (4)(i) or subsection (5)(a) refers, subsections (4) to (12) and subsection (14) of section 38 shall apply with any necessary modifications, and as if the ward, or the person the subject of a discharge from wardship under subsection (4)(ii) or (5)(b), as the case may be, were a relevant person.

• (7) Sections 39 to 44 and sections 46 and 47 shall apply to decision-making representatives appointed, or to be appointed, by a wardship court under Part 5 as they apply to decision-making representatives appointed, or to be appointed, by a court under Part 5.

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

55A. F75[Review of declaration by wardship court as respects capacity

55A. (1) Where the wardship court makes a declaration under section 55(1)(b), the wardship court shall make an order that the capacity of the person the subject of the declaration be reviewed by the court—

• (a) subject to paragraph (b), not later than 12 months from the date on which the wardship court made the declaration, or

• (b) not later than 3 years from the date on which the wardship court made the declaration if the wardship court is satisfied that the person is unlikely to recover his or her capacity,

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

• (i) a reference in section 49(4) to the declaration made by the court under section 37(1) shall be read as a reference to the declaration made by the wardship court under section 55(1)(b);

• (ii) a reference in section 49 to the relevant person shall be read as a reference to the person the subject of the declaration of the wardship court under section 55(1)(b).

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

• (a) a reference in section 49 to a declaration made by the court under section 37(1) shall be read as a reference to a declaration made by the wardship court under section 55(1)(b);

• (b) a reference in section 49 to a relevant person shall be read as a reference to the person the subject of the declaration of the wardship court under section 55(1)(b);

• (c) a reference in section 49(1) to any of the persons referred to in any of paragraphs (b) to (i) of section 36(4) shall be read as a reference to any person who has attained the age of 18 years and who has a bona fide interest in the welfare of the person the subject of the declaration of the wardship court under section 55(1)(b).]

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.

• F76[(3) Notwithstanding its repeal by section 7(2), the Lunacy Regulation (Ireland) Act 1871 shall remain in force on and after the date of the coming into operation of this Part with regard to any proceedings in being on that date that were initiated under that Act before that date.

• (4) Subsections (1) and (2) shall apply to the proceedings referred to in subsection (3), or to an order made in such proceedings, as they apply to an order made before the coming into operation of this Part.

• (5) When, in proceedings referred to in subsection (3), the wardship court makes an order by virtue of which a person becomes a ward, it may in those proceedings and notwithstanding section 54, also make a declaration under section 55(1) in respect of the ward and the relevant provisions of the said section 55 shall then apply accordingly.

• (6) Nothing in this section shall prevent—

• (a) the appointment of a decision-making assistant under section 10 by,

• (b) the appointment of a co-decision-maker under section 17 by,

• (c) an application to the court under Part 5 in respect of,

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

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

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

• (7) Where—

• (a) an appointment referred to in subsection (6)(b) is made,

• (b) a person is appointed as a decision-making representative pursuant to an application under Part 5 referred to in subsection (6)(c),

• (c) an enduring power under the Act of 1996 is registered as referred to in paragraphs (d) or (e) of subsection (6),

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

57. Director and wards who are adults

57. F77[…]

57A. F78[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;

F79[“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. F80[Provisions regarding trust corporations

58A. (1) The Director shall, with the consent of the Minister, specify from time to time the procedural requirements that a trust corporation shall be required to fulfil—

• (a) on an application for registration of an instrument creating an enduring power of attorney in which the trust corporation is named as an attorney in order for the Director to be satisfied as to the suitability for appointment of the trust corporation as attorney, and

• (b) on a notification by an attorney under section 71A.

• (2) Without prejudice to the generality of subsection (1), the Director may, with the consent of the Minister, specify the following matters:

• (a) the information and documents that are to be provided by the trust corporation to the Director on an application for registration of an instrument creating an enduring power of attorney, which may include—

• (i) an affidavit, or a statement of truth within the meaning of section 21 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, that the trust corporation can lawfully act as such and an undertaking to notify the Director forthwith if this changes at any time throughout the duration of the appointment as attorney,

• (ii) information and supporting documents to demonstrate the internal management of the trust corporation and the supervision and controls operated by it, in particular with regard to—

• (I) the decision making process of the trust corporation,

• (II) the manner in which the trust corporation may hold a donor’s assets and funds, and

• (III) the manner in which those assets and funds may be paid out,

• (iii) the total amount of assets and funds of donors held by the trust corporation and the level of insurance cover that the trust corporation has and shall maintain in respect of loss, through dishonesty, breach of duty, negligence or any other cause, to the assets and funds, and

• (iv) information regarding any additional regulation to which that the trust corporation is and will be subject,

• (b) the information and documents required to be provided to demonstrate the identity and manner of authorisation of the persons authorised to carry out any or all of the actions referred to in subsection (3), and

• (c) the information and documents to be provided to the Director on notification under section 71A, in particular regarding the authorisation of any further persons to whom paragraph (b) refers.

• (3) Any officer authorised for the purpose by a trust corporation or the directors or governing body thereof (in this section referred to as an "authorised officer") may, on behalf of the corporation, swear affidavits, give security and do any other act or thing which the Director or an enduring power of attorney may require, and the acts of an authorised officer shall be binding on the trust corporation.

• (4) The requirement in section 59(1) regarding the minimum age of an attorney shall not apply to a trust corporation.]

58B. F81[Liability of officers of trust corporation for offences

58B. (1) Where an offence under section 80 or section 145 has been committed by a trust corporation and the doing of the acts that constituted the offence has been authorised, or consented to, or connived in, by a person, being a director, manager, chief executive officer, secretary, or other similar officer of the trust corporation, or a person who purports to act in any such capacity, that person as well as the trust corporation shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

• (2) Where a person is proceeded against as aforesaid for such an offence and it is proved that, at the material time, he or she was a director of the trust corporation concerned or a person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the trust corporation, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is proved, that that person consented to the doing of the acts by the trust corporation which constituted the commission by it of the offence concerned under section 80 or 145.

• (3) Where the affairs of a trust corporation are managed by its members, subsections (1) and (2) shall apply in relation to the acts or defaults of a member in connection with his or her functions of management as if he or she were a director of the trust corporation.]

59. Enduring power of attorney — general

59. (1) Subject to the provisions of this section and F82[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 F82[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 F82[this Part, regulations made under section 79 and specifications made by the Director under section 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 F82[acting as attorney, or resigns from his or her role as attorney].

• F82[(4) An enduring power of attorney shall not enter into force until—

• (a) the instrument creating the enduring power of attorney has been registered under section 69,

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

• (c) the Director has been notified under section 71A of the matters in paragraph (b), and

• (d) the Director accepts the notification under section 71C.]

• (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.

• F83[(5A) Where an enduring power of attorney confers authority under paragraph (a) or (b) of subsection (1) in relation to the personal welfare of the donor, this shall not authorise the attorney to consent to or refuse treatment for the donor.

• (5B) A donor shall not, in an enduring power of attorney, purport to give a power to the attorney to consent to or refuse treatment for the donor and any provision of a power of attorney relating to such purported power shall be null and void.]

• (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 F84[registration, and on or after its registration until the attorney notifies the Director under section 71A that the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power of attorney and this notification has been accepted by the Director under section 71C];

• (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 F84[registration, and on or after its registration until the attorney notifies the Director under section 71A that the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power of attorney and this notification has been accepted by the Director under section 71C], 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;

• F84[(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) F85[…]

• (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 F84[power, and in relation to notification of the Director under section 71A when the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power].

• (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;

• (c) the name, date of birth and contact details of the attorney;

• (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

• (c) the signature of the person is witnessed in accordance with subsection (4)(b).

• (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,

• (c) a parent, step-parent, mother-in-law or father-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. F86[…]

62. Scope of authority — personal welfare decisions

62. F87[…]

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

• (c) jointly in respect of some matters and jointly and severally in respect of other matters,

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 F88[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 F88[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,

• (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 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 F88[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,

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

• (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

• (c) subject to section 2(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.

• (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—

• (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 F89[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,

• F89[(iii) has executed as a donor an enduring power of attorney that has been the subject of a notification under section 71A that has been accepted by the Director under section 71C or has executed as a donor an enduring power under the Act of 1996 that has been registered under that Act,]

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

or

• (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. F90[Function of court prior to acceptance of notification

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

68. Application for registration of instrument creating enduring power

68. F91[(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 F91[form as specified by the Director under section 79A] and accompanied by such fee as shall be prescribed.

• (3) The F91[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 F91[specified by the Director under section 79A], of the application and give a copy of the instrument creating an enduring power of attorney to the following persons:

• F91[(a) where the application was made by the attorney, the donor,]

• F92[(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;

• (c) the cohabitant (if any) of the donor;

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

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

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

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

• (h) any designated healthcare representative for the donor;

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

• F91[(j) any other person or persons as may be specified by the donor in the instrument creating the enduring power of attorney as a person or persons to whom notice shall be given under this section and section 71A(3) and where there are fewer than 3 persons to whom notice may be given pursuant to paragraphs (a) to (i), the donor shall so specify at least 2 persons.]

• F92[(3A) Subsection (3)(b) shall not apply—

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

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

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

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

and

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

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

• (ii) subject to section 2(2), the civil partners have separated and have ceased to cohabit for a continuous period of not less than 12 months.

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

• (4) F91[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) F93[…]

• (6) F93[…]

• (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) F93[…]

• (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 F91[donor],

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

• F91[(e) where a trust corporation is named as an attorney, the information and documents specified by the Director under section 58A(2), and]

• (f) the prescribed fee.

• (8) F93[…]

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, F94[60 and] 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;

• F95[(ca) where a trust corporation is named as an attorney, that it has complied with the requirements specified by the Director under section 58A,]

• (d) notice has been given in accordance with F96[…] section 68(3); and

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

• F95[(1A) Where the instrument creating the enduring power of attorney differs in an immaterial respect from the form specified by the Director under section 79A(1)(a), the Director may, notwithstanding such difference, treat the enduring power of attorney and the instrument creating it as being in accordance with the form specified by the Director under section 79A(1)(a), if he or she thinks it appropriate to do so.

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

• (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) F94[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

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

• (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) F94[For the purposes of subsection (7), a document] purporting to be a copy of an instrument creating an enduring power of attorney which has been authenticated by the Director shall be evidence of the contents of the instrument and the date upon which it was registered.