Legalize / Ireland / Act

Assisted Decision-Making (Capacity) (Amendment) Act 2022

Type Act

Publication 2022-12-17

State In force

Source Irish Statute Book

articles 104

Reform history JSON API

PART 1 Preliminary and General

1. Short title, collective citation, construction and commencement

1. (1) This Act may be cited as the Assisted Decision-Making (Capacity) (Amendment) Act 2022.

(2) Section 99 and the Credit Union Acts 1997 to 2020 may be cited together as the Credit Union Acts 1997 to 2022 and shall be construed together as one.

(3) Section 100 and the National Disability Authority Act 1999 may be cited together as the National Disability Authority Acts 1999 and 2022 and shall be construed together as one.

(4) Section 74 and section 91 and the Mental Health Acts 2001 to 2018 may be cited together as the Mental Health Acts 2001 to 2022 and shall be construed together as one.

(5) Subject to subsection (6), this Act shall come into operation on such day or days as the Minister, after consultation with the Minister for Health, may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

(6) Sections 72 to 77 shall come into operation on such day or days as the Minister for Health, after consultation with the Minister, may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

2. Definitions

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

“Minister” means the Minister for Children, Equality, Disability, Integration and Youth;

“Principal Act” means the Assisted Decision-Making (Capacity) Act 2015 .

3. Repeals

3. The following provisions of the Principal Act are repealed:

(a) section 57;

(b) section 61;

(d) section 70;

(e) section 93;

(f) section 144.

PART 2 Amendment of Principal Act

4. Amendment of section 2 of Principal Act

4. Section 2(1) of the Principal Act is amended—

(a) in the definition of “intervener”, by the substitution of “(d), (da), (db)” for “(d)”,

(b) in the definition of “intervention”—

(i) in paragraph (d), by the substitution of “general visitor,” for “general visitor, or”, and

(ii) by the insertion of the following paragraphs after paragraph (d):

“(da) a court friend, or

(db) a person to whom section 36(8)(b) applies,”,

“‘Minister’, other than in Part 8, means the Minister for Children, Equality, Disability, Integration and Youth;”,

(d) in the definition of “personal welfare”, by the insertion of the following paragraph after paragraph (e):

“(ea) participation by the relevant person in healthcare research and social care research except in relation to clinical trials of medicinal products for human use or clinical investigations undertaken to assess the safety or performance of medical devices;”,

(e) in paragraph (i) of the definition of “property and affairs”, by the substitution of “for the needs of other persons” for “of other persons”, and

(f) by the insertion of the following definition:

“‘treatment’, in relation to a person, means an intervention that is or may be done for a therapeutic, preventative, diagnostic, palliative or other purpose related to the physical or mental health of the person, and includes life sustaining treatment;”.

5. Amendment of section 4 of Principal Act

5. Section 4 of the Principal Act is amended—

(a) in subsection (1)—

(i) by the substitution of “sections 37” for “sections 37, 85(6)(b)”,

(ii) by the substitution of “in which the following persons are residing or carrying on business at the time the application or appeal concerned is made, or have resided at any time during the period of 3 years immediately prior to the making of the application or the lodging of the appeal concerned:” for “in which—”, and

(iii) by the substitution of the following paragraphs for paragraphs (a) and (b):

“(a) the relevant person (including a ward) the subject of an application under this Act;

(b) in the case of proceedings under section 15, the decision-making assistant appointer, whose decision-making assistant or decision-making assistance agreement is the subject of an application or appeal under that section;

(c) in the case of proceedings under Part 4, the co-decision-maker appointer, whose co-decision-maker or co-decision-making agreement is the subject of an application or appeal under that Part;

(d) in the case of proceedings under section 46 or 47, the relevant person, whose decision-making representative is the subject of an application or appeal under the section concerned;

(e) in the case of proceedings under Part 7—

(i) the donor, whose attorney, enduring power of attorney or instrument creating an enduring power of attorney, or

(ii) the donor under the Act of 1996, whose attorney under the Act of 1996, enduring power under the Act of 1996 or instrument creating an enduring power under the Act of 1996,

is the subject of an application or appeal under that Part;

(f) in the case of proceedings under section 88 or 89, the directive-maker, whose designated healthcare representative is the subject of an application under the section concerned;

(g) in the case of proceedings under section 125 or 127, the adult the subject of the measure that is the subject of an application under the section concerned.”,

and

(b) by the insertion of the following subsection after subsection (4):

“(5) Nothing in this Act shall affect the inherent jurisdiction of the High Court to make orders for the care, treatment or detention of persons who lack capacity.”.

6. Insertion of new section 4A into Principal Act

6. The Principal Act is amended by the insertion of the following section after section 4:

“Regulations

4A. (1) The Minister may make regulations for the purposes of this Act (other than Part 8) including regulations prescribing any matter or thing which is referred to in this Act (other than Part 8) as prescribed or to be prescribed or to be the subject of regulations made by him or her or for the purpose of enabling any provision of this Act (other than Part 8) to have full effect.

(2) Regulations under this Act (other than Part 8) may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.”.

7. Amendment of section 8 of Principal Act

7. Section 8(7)(d) of the Principal Act is amended—

(a) in subparagraph (i), by the substitution of “matter,” for “matter, and”,

(b) by the substitution of the following subparagraph for subparagraph (ii):

“(ii) any decision-making assistant, co-decision-maker, decision-making representative, attorney or attorney under the Act of 1996 for the relevant person,”,

and

“(iii) any court friend or person to whom section 36(8)(b) applies, where the intervention relates to proceedings under Part 5, and

(iv) a designated healthcare representative within the meaning of Part 8 for the relevant person, where the intervention relates to treatment and an advance healthcare directive within the meaning of Part 8 is applicable,”.

8. Amendment of section 9 of Principal Act

8. Section 9 of the Principal Act is amended—

(a) in the definition of “decision-making assistant”, by the substitution of “section 10(4) and specifications made under section 10(4A)” for “section 10(4)”, and

(b) in the definition of “decision-making assistant appointer”, by the substitution of “section 10(4) and specifications made under section 10(4A)” for “section 10(4)”.

9. Amendment of section 10 of Principal Act

9. Section 10 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “subsection (4) and specifications made under subsection (4A)” for “subsection (4)”,

(b) in subsection (2), by the substitution of “subsection (4) and specifications made under subsection (4A)” for “subsection (4)”,

“(4) The Minister shall make regulations as respects decision-making assistance agreements, including—

(a) prescribing procedures and requirements relating to the execution, variation and revocation of a decision-making assistance agreement,

(b) specifying the personal welfare or property and affairs, or both, which may be specified in a decision-making assistance agreement,

(c) providing for the giving by the appointer of notice of the execution, variation or revocation of a decision-making assistance agreement—

(i) to the Director, and

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

(d) by the insertion of the following subsection after subsection (4):

“(4A) The Director may, with the consent of the Minister, specify in writing the following:

(a) the form of a decision-making assistance agreement;

(b) the information to be included in or annexed to a decision-making assistance agreement for the purpose of ensuring that any document purporting to create a decision-making assistance agreement incorporates adequate information as to the effect of making or accepting the appointment;

(i) by the appointer, that he or she has read and understands the information as to the effect of making the appointment or that such information has been explained to the appointer, by a person other than the proposed decision-making assistant;

(ii) by the decision-making assistant, that he or she understands and undertakes to act in accordance with the functions of a decision-making assistant, including the duty to act in accordance with the guiding principles;

(d) the form of attestation of the signatures of the appointer and decision-making assistant by a person other than the appointer or the proposed decision-making assistant;

(e) the forms to be used in connection with the execution, variation and revocation of a decision-making assistance agreement; and

(f) the form of notice to be given by the appointer of the execution, variation or revocation of a decision-making assistance agreement.”.

10. Amendment of section 11 of Principal Act

10. Section 11(1) of the Principal Act is amended—

(a) in paragraph (a), by the substitution of “her, or the person or property of a child of that person” for “her”,

(b) in paragraph (b), by the substitution of “her, or a child of that person” for “her”, and

11. Amendment of section 13 of Principal Act

11. Section 13(4) is amended—

(a) in paragraph (g), by the substitution of “section 15A, 34,” for “section 34,”, and

(b) in paragraph (h), by the substitution of the following subparagraph for subparagraph (iii):

“(iii) has an enduring power of attorney that is the subject of a notification that has been accepted by the Director under section 71C, or an enduring power under the Act of 1996 that has been registered, in respect of himself or herself, or”.

12. Amendment of section 14 of Principal Act

12. Section 14(1)(b) of the Principal Act is amended by the substitution of “assist” for “advise”.

13. Amendment of section 15 of Principal Act

13. Section 15 of the Principal Act is amended—

(a) in subsection (1)—

(i) by the substitution of “one or more of” for “one or both of”,

(ii) in paragraph (a)—

(I) by the substitution of “the scope of, or in breach of,” for “the scope of”, and

(II) by the substitution of “agreement, or in breach of this Act” for “agreement”,

and

(iii) in paragraph (c), by the substitution of “to enter into, or to vary or revoke, the decision-making assistance agreement” for “to enter into the co-decision-making agreement”,

(b) by the insertion of the following subsections after subsection (1):

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

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

(i) by the substitution of “The Director shall, as soon as is practicable after having formed a view under subsection (1A)” for “Following the receipt of a complaint under subsection (1), the Director shall carry out an investigation of the matter which is the subject of the complaint and”,

(ii) in paragraph (a), by the substitution of “complaint,” for “complaint, or”, and

(iii) by the insertion of the following paragraph after paragraph (a):

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

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

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

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

(d) in subsection (3), by the substitution of “3 months” for “21 days”,

(e) in subsection (4), by the substitution of “investigation, to which this section shall, with any necessary modifications, apply” for “investigation and make an application to the court for a determination in relation to any matter specified in subsection (1)”,

(f) by the insertion of the following subsections after subsection (4):

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

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

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

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

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

(g) in subsection (5)—

(i) in paragraph (a), by the deletion of “or (4) ”, and

(ii) in paragraph (b), by the substitution of “subsection (3) or (7)(b)” for “subsection (3)”,

and

(h) by the insertion of the following subsections after subsection (5):

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

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

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

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

14. Insertion of new section 15A into Principal Act

14. The Principal Act is amended by the insertion of the following section after section 15:

“Offence in relation to decision-making assistance agreement

15A. (1) A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke a decision-making assistance agreement commits an offence and shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.

(2) The reference in subsection (1) to coercion or undue influence includes any case where a person’s access to, or continued stay in, a designated centre or mental health facility is contingent (whether in whole or in part) on the person having to, or being led to believe that he or she has to, make, vary or revoke a decision-making assistance agreement.”.

15. Amendment of section 16 of Principal Act

15. Section 16 of the Principal Act is amended, in the definition of “co-decision-maker”, by the substitution of “this Part, regulations made under section 31 and specifications made under section 31A” for “this Part and regulations made under section 31”.

16. Amendment of section 17 of Principal Act

16. Section 17 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “this Part, regulations made under section 31 and specifications made under section 31A” for “this Part and regulations made under section 31”,

(b) by the insertion of the following subsection after subsection (1):

“(1A) A person in relation to whom a decision-making representation order was made in circumstances where section 38(1)(a) or section 55(4) applied may appoint a co-decision-maker in accordance with this section, and this Part and the regulations and specifications made thereunder shall apply to that appointment with any necessary modifications.”,

and

(c) in subsection (3), by the substitution of “this section, regulations made under section 31 and specifications made under section 31A” for “this section and regulations made under section 31”.

17. Amendment of section 18 of Principal Act

17. Section 18(1)(g) of the Principal Act is amended by the substitution of “section 15A, 34,” for “section 34,”.

18. Amendment of section 20 of Principal Act

18. Section 20(6) of the Principal Act is amended—

(a) in paragraph (g), by the substitution of “section 15A, 34,” for “section 34”, and

(b) in paragraph (h), by the substitution of the following subparagraph for subparagraph (iii):

19. Amendment of section 21 of Principal Act

19. Section 21 of the Principal Act is amended—

(a) in subsection (2), by the substitution of “in such form as shall be specified under section 31A” for “in such form”,

(b) in subsection (3), by the substitution of “specified under section 31A” for “prescribed by regulations made under section 31”,

“(3A) Subsection (3)(a) shall not apply—

(a) in relation to the spouse of an appointer, where, at the time at which the application is made under subsection (2)—

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

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

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

and

(b) in relation to the civil partner of an appointer, where, at the time at which the application is made under subsection (2)—

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

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

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

and

(d) in subsection (4)—

(i) in paragraph (f), by the substitution of—

(I) “practitioner or” for “practitioner and”, and

(II) “his or her” for “their”,

and

(ii) in paragraph (g), by the substitution of “specified under section 31A” for “prescribed by regulations made under section 31”.

20. Amendment of section 22 of Principal Act

20. Section 22(7) of the Principal Act is amended—

(a) in subsection (7), by the substitution of “For the purposes of subsection (6), a document” for “A document”, and

(b) by the insertion of the following subsection after subsection (7):

“(8) Once the Director has registered or has refused to register under this section a co-decision-making agreement, the applicants concerned shall, as soon as practicable, give notice to the persons referred to in section 21(3) (other than those to whom subsections (3A) and (3B) of that section relate) of that registration or refusal, as the case may be, in the form specified under section 31A.”.

21. Amendment of section 24 of Principal Act

21. Section 24 of the Principal Act is amended—

(a) in subsection (2), by the substitution of “in such form as shall be specified under section 31A” for “in such form”,

(b) in subsection (3)—

(i) in paragraph (i), by the substitution of “notify the appointer, the co-decision‑maker and the person who made the objection” for “notify the person who made the objection”, and

(ii) by the substitution of the following paragraph for paragraph (ii):

“(ii) where he or she is of the view that the objection is well founded, notify the appointer, the co-decision-maker and the person who made the objection of his or her decision and refuse to register the co-decision-making agreement.”,

(d) by the substitution of the following subsection for subsection (5):

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

and

(e) by the substitution of the following paragraphs for paragraphs (a) and (b) of subsection (6):

“(a) where the Director has made a decision to which subsection (3)(i) refers—

(i) declare that the objection is well founded and require the Director to remove the co-decision-making agreement concerned from the Register, or

(ii) affirm the decision of the Director,

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

(i) declare that the objection is not well founded and require the Director to proceed to consider, in accordance with section 22, whether the co-decision-making agreement should be registered, taking the court’s declaration into account, or

(ii) affirm the decision of the Director and declare that the co-decision-making agreement should not be registered,

or”.

22. Amendment of section 25 of Principal Act

22. Section 25 of the Principal Act is amended—

(a) in subsection (3)—

(i) by the substitution of “The Director shall make such details of the Register as he or she shall specify” for “The Director shall make the Register”, and

(ii) in paragraph (b), by the substitution of “inspecting those details of the Register” for “inspecting the Register”,

(b) in subsection (4), by the substitution of “or part thereof, or, where applicable, a varied co-decision-making agreement or part thereof,”, for “or part thereof,”,

“(4A) An authenticated copy of a co-decision-making agreement or part thereof, or, where applicable, of a varied co-decision-making agreement or part thereof, that is issued by the Director under subsection (4) and stamped by the Director with a time and date stamp (which may be by automated means), shall be evidence of the contents of the agreement or part thereof as at the date and time indicated on the stamp.”,

and

(d) in subsection (5), by the substitution of “or part thereof, or, where applicable, a varied co-decision-making agreement or part thereof,”, for “or part thereof,”.

23. Amendment of section 26 of Principal Act

23. Section 26(3) of the Principal Act is amended—

(a) by the substitution of “a statement” for “statements”, and

(b) in paragraph (a), by the substitution of “practitioner, or” for “practitioner, and”.

24. Amendment of section 27 of Principal Act

24. Section 27 of the Principal Act is amended—

(a) in subsection (2), by the substitution of—

(i) “specified under section 31A” for “prescribed by regulations made under section 31”, and

(ii) “as are specified under section 31A” for “as are prescribed”,

(b) by the substitution of the following subsection for subsection (4):

“(4) Where a co-decision-maker fails to comply with a notification under subsection (3), the Director—

(a) may, in the case of the submission of an incomplete report and following any necessary enquiries to satisfy himself or herself that the report is substantially in accordance with this section and specifications made under section 31A, accept the report as if it were in compliance with this section and the relevant specifications,

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

(c) may, subject to subsection (4A) and following consultation with the appointer and the co-decision-maker, make a determination that the co-decision-maker shall, as soon as may be or from a date specified by the Director, no longer act as co-decision-maker for the appointer concerned.”,

“(4A) Where the Director has made a determination under subsection (4)(c) he or she shall notify the appointer and the co-decision-maker of his or her determination, provide reasons for that determination and update the Register accordingly.

(4B) An appointer or a co-decision-maker who has been notified under subsection (4A) of the Director’s determination may, not later than 21 days after the date of issue of the notification by the Director, appeal the determination concerned to the court.”,

and

(d) by the substitution of the following subsection for subsection (5):

“(5) Pursuant to an appeal to it under subsection (4B), the court may—

(a) affirm the determination of the Director,

(b) declare that the co-decision-maker shall continue to act as such for the appointer concerned and require the Director to update the Register accordingly, or

25. Amendment of section 28 of Principal Act

25. Section 28 of the Principal Act is amended—

(a) in subsection (3), by the substitution of “in such form as shall be specified under section 31A” for “in such form”, and

(b) in subsection (4)—

(i) by the substitution of “specified under section 31A” for “prescribed by regulations made under section 31”, and

(ii) in paragraph (c), by the substitution of “practitioner or” for “practitioner and”.

26. Amendment of section 29 of Principal Act

26. Section 29 of the Principal Act is amended—

(a) in subsection (2), by the substitution of “specified under section 31A” for “prescribed by regulations made under section 31”,

(b) in subsection (3), by the substitution of “and each such signature” for “and, in the case of a revocation by the appointer, his or her signature”,

“as the case may be, and the notification, which shall be in such form as shall be specified under section 31A, shall be accompanied by the following:

(a) a statement in writing by the person making the revocation outlining his or her reasons for the revocation;

(b) if the appointer is the person making the revocation, a statement by a registered medical practitioner or a statement by such other healthcare professional as shall be prescribed by regulations made under section 31 that in his or her opinion, the appointer has capacity to revoke the co-decision-making agreement;

(d) information on any change in the details provided pursuant to section 21(4)(e) in the application to register the co-decision-making agreement;

(e) the appropriate fee, as prescribed by regulations made under section 31.”,

(d) by the insertion of the following subsection after subsection (4):

“(4A) The person making the revocation or revocation in part of a registered co-decision-making agreement shall, at the same time as notifying the Director under subsection (4), give notice of the revocation or revocation in part, in such form as shall be specified under section 31A, to the persons specified in section 21(3).”,

and

(e) in subsection (5)—

(i) by the substitution of “extent of the revocation.” for “extent of the revocation,”, and

(ii) by the deletion of “and in either case notify the persons specified in section 21(3) of the fact of the revocation or revocation in part, as the case may be.”.

27. Amendment of section 30 of Principal Act

27. Section 30 of the Principal Act is amended—

(a) in subsection (1)—

(i) in paragraph (a)—

(I) by the substitution of “the scope of, or in breach of,” for “the scope of”, and

(II) by the substitution of “agreement, or in breach of this Act” for “agreement”,

and

(ii) in paragraph (e), by the substitution of “to enter into, or to vary or revoke,” for “to enter into”,

(b) by the insertion of the following subsections after subsection (1):

(ii) in paragraph (a), by the substitution of “complaint,” for “complaint, or”, and

(iii) by the insertion of the following paragraph after paragraph (a):

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

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

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

(d) in subsection (3), by the substitution of “3 months” for “21 days”,

(f) by the insertion of the following subsections after subsection (4):

(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.

(g) in subsection (5)—

(i) in paragraph (a), by the deletion of “or (4)”,

(ii) in paragraph (b), by the substitution of “subsection (3) or (7)(b)” for “subsection (3)”, and

(iii) by the substitution of “concerned, and that the Register shall be amended accordingly” for “concerned”,

and

(h) by the insertion of the following subsections after subsection (5):

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

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

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

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

28. Amendment of section 31 of Principal Act

28. The Principal Act is amended by the substitution of the following section for section 31:

“Regulations - Part 4

31. The Minister, having regard to the requirements of this Part, shall prescribe by regulations the following matters:

(a) the bodies or classes of persons referred to in section 25(3)(a) and section 25(4)(a), who may inspect the Register or receive an authenticated copy of a co-decision-making agreement, as the case may be;

(b) the class of healthcare professionals under section 21(4)(f), 26(3)(b), 28(4)(c) and 29(4)(b);

(i) an application to register a co-decision-making agreement or a varied co-decision-making agreement,

(ii) an objection to an application to register a co-decision-making agreement or a varied co-decision-making agreement,

(iii) the issue of an authenticated copy of a co-decision-making agreement or part thereof, and

(iv) the notification to the Director of the revocation or revocation in part of a co-decision-making agreement;

(d) the circumstances in which the fees referred to in paragraph (c) may be waived by the Director.”.

29. Insertion of new section 31A into Principal Act

29. The Principal Act is amended by the insertion of the following section:

“Matters to be specified by Director in relation to co-decision-making agreements

31A. The Director may, with the consent of the Minister, specify in writing the following:

(a) the form of a co-decision-making agreement;

(b) the form of an application under sections 21(2) and 28(3) to register a co-decision-making agreement and a varied co-decision-making agreement;

(c) the form of notice under sections 21(3) and 28(4) of an application to register a co-decision-making agreement and a varied co-decision-making agreement;

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

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

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

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

(h) the form of revocation, or revocation in part, under section 29(2) of a co-decision-making agreement;

(i) the form of notice of the revocation, or revocation in part, of a registered co-decision-making agreement under section 29(4A) to the persons specified in section 21(3).”.

30. Amendment of section 36 of Principal Act

30. Section 36 of the Principal Act is amended—

(a) in subsection (4)—

(i) by the insertion of the following paragraphs after paragraph (c):

“(ca) the cohabitant of the relevant person,

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

(ii) by the substitution of the following paragraph for paragraph (g):

“(g) an attorney or an attorney under the Act of 1996 for the relevant person,”,

(iii) in paragraph (j)(ii), by the substitution of “person, and” for “person.”, and

(iv) by the insertion of the following paragraph after paragraph (j):

“(k) a person or body—

(i) having reached the age of 18 years, if an individual, and

(ii) having a bona fide interest in the welfare of relevant persons,

as may be prescribed by the Minister by regulations.”,

(b) in subsection (8)(b), by the substitution of “the court, having regard to the known will and preferences of the relevant person,” for “the court”,

“(10A) Nothing in this section shall operate to prohibit—

(a) the preparation of a report of proceedings under this Part by—

(i) a barrister or a solicitor, or

(ii) a person falling within any other class of persons specified in regulations made under subsection (10B) for the purposes of this subsection,

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

in accordance with rules of court, provided that the report or decision does not contain any information that would enable the parties to the proceedings or any person to whom the proceedings relate to be identified and, accordingly, unless in the special circumstances of the matter the court, for reasons that shall be specified in the direction, otherwise directs, a person referred to in paragraph (a) may, for the purposes of preparing such a report—

(i) attend the proceedings, and

(ii) have access to any relevant court documents,

subject to any directions the court may give in that behalf.

(10B) The Minister may, after consultation with the Minister for Justice, make regulations specifying a class of persons for the purposes of subsection (10A) if the Minister is satisfied that the publication of reports prepared in accordance with subsection (10A)(a) by persons falling within that class is likely to provide information that will assist in the better operation of this Act.”,

and

(d) by the insertion of the following subsection after subsection (11):

“(12) In this section—

(a) a reference to a spouse of a relevant person shall not include a person where, at the time at which the application is made under subsection (1)—

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

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

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

(b) a reference to a civil partner of a relevant person shall not include a person where, at the time at which the application is made under subsection (1)—

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

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

and

(c) subject to section 2(2), a reference to a cohabitant of a relevant person shall not include a person where, at the time at which the application is made under subsection (1), the relevant person and his or her cohabitant have separated and have ceased to cohabit for a continuous period of not less than 12 months.”.

31. Amendment of section 38 of Principal Act

31. Section 38 of the Principal Act is amended by the insertion of the following subsection after subsection (8):

“(8A) Notwithstanding subsection (2)(b), the court, in making a decision-making representation order in the circumstances where subsection (1)(a) or section 55(4) applies, shall—

(a) in attaching any conditions under subsection (8)(c), take into account the application of section 41(3) to the decision-making representative, and

(b) make provision for the decision-making representation order to cease to have effect on the date of registration of a co-decision-making agreement in relation to the relevant person under Part 4.”.

32. Amendment of section 39 of Principal Act

32. Section 39(1)(g) of the Principal Act is amended by the substitution of “section 15A, 34,” for “section 34,”.

33. Amendment of section 40 of Principal Act

33. Section 40(4) of the Principal Act is amended—

(a) in paragraph (g), by the substitution of “section 15A, 34,” for “section 34,”, and

(b) in paragraph (h), by the substitution of the following subparagraph for subparagraph (iii):

34. Amendment of section 41 of Principal Act

34. Section 41 of the Principal Act is amended by the insertion of the following subsection after subsection (2):

“(3) Notwithstanding subsection (2), a decision-making representative appointed in circumstances where section 38(1)(a) or section 55(4) applies shall ensure, in so far as is practicable, that he or she jointly makes decisions with the relevant person.”.

35. Amendment of section 42 of Principal Act

35. Section 42 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “expenses as may be approved by the Director or otherwise provided for by way of regulations made by the Minister after consultation with the Director and with the consent of the Minister for Public Expenditure and Reform, and” for “expenses”,

(b) in subsection (2), by the substitution of “reasonable remuneration in accordance with regulations made under subsection (4)” for “reasonable remuneration”, and

“(3) Subject to subsection (4), where a decision-making representative is appointed by the court in the circumstances to which section 38(7) applies and—

(a) the court makes an order to which subsection (1) refers that the decision-making representative shall not be entitled to be reimbursed out of the assets of the relevant person in respect of his or her fair and reasonable expenses reasonably incurred in performing his or her functions,

(b) the court has not made a direction under subsection (2), or

(c) where paragraph (a) or (b) does not apply, but the assets of the relevant person are insufficient to pay the relevant reimbursement or remuneration, as the case may be,

the Director may—

(i) reimburse the decision-making representative in respect of his or her fair and reasonable expenses reasonably incurred in performing his or her functions as decision-making representative, or

(ii) pay such reasonable remuneration to the decision-making representative in relation to the performance of his or her functions as decision-making representative and which functions are carried out in connection with his or her trade or profession, or in other exceptional circumstances specified by the Director.

(4) The reimbursement of fair and reasonable expenses referred to in subsection (3)(i) and the payment of reasonable remuneration referred to in subsections (2) and (3)(ii)—

(a) shall be calculated in accordance with the methodology and any limits specified in, and

(b) shall be paid subject to such conditions as may be prescribed by,

regulations made by the Minister after consultation with the Director and with the consent of the Minister for Public Expenditure and Reform, and such regulations may also make provision for the circumstances in which the Director may authorise the reimbursement or payment, as the case may be, of expenses or remuneration in excess of the calculations or limits provided for in accordance with paragraph (a).”.

36. Amendment of section 43 of Principal Act

36. Section 43 of the Principal Act is amended by the deletion of subsections (3) to (5).

37. Amendment of section 44 of Principal Act

37. Section 44 of the Principal Act is amended by the deletion of subsections (5) to (8).

38. Amendment of section 45 of Principal Act

38. Section 45 of the Principal Act is amended—

(a) in subsection (3)—

(i) by the substitution of “The Director shall make such details of the Register as he or she shall specify” for “The Director shall make the Register”, and

(ii) in paragraph (b), by the substitution of “inspecting those details of the Register” for “inspecting the Register”,

(b) in subsection (4), by the substitution of “or part thereof, or, where applicable, any variations to the order or part thereof,”, for “or part thereof,”, and

“(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.”.

39. Amendment of section 46 of Principal Act

39. Section 46 of the Principal Act is amended—

(a) in subsection (3), by the substitution of “specified by the Director, with the consent of the Minister,” for “prescribed by regulations made by the Minister”,

(b) by the deletion of subsection (4),

(d) in subsection (8)(a)—

(i) by the substitution of “specifications made by the Director under subsection (3)” for “regulations made by the Minister”, and

(ii) by the substitution of “relevant specifications” for “relevant regulations”.

40. Amendment of section 47 of Principal Act

40. Section 47 of the Principal Act is amended—

(a) in subsection (1)—

(i) by the substitution of “one or both of” for “one or more of”, and

(ii) in paragraph (a)—

(I) by the substitution of “the scope of, or in breach of,” for “the scope of”, and

(II) by the substitution of “order, or in breach of this Act” for “order”,

(b) by the insertion of the following subsections after subsection (1):

(ii) in paragraph (a), by the substitution of “complaint,” for “complaint, or”, and

(iii) by the insertion of the following paragraph after paragraph (a):

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

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

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

(d) in subsection (3), by the substitution of “3 months” for “21 days”,

(f) by the insertion of the following subsections after subsection (4):

(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.

(g) in subsection (5)—

(i) in paragraph (a), by the deletion of “or (4)”,

(ii) in paragraph (b), by the substitution of “subsection (3) or (7)(b)” for “subsection (3)”, and

(iii) by the substitution of “concerned, and that the Register shall be amended accordingly” for “concerned”,

and

(h) by the insertion of the following subsections after subsection (5):

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

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

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

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

41. Amendment of section 50 of Principal Act

41. Section 50(2)(a) of the Principal Act is amended by the deletion of the words “(including reports relating to the cognitive ability of that person)”.

42. Amendment of section 52 of Principal Act

42. Section 52(b) of the Principal Act is amended—

(a) in subparagraph (ii), by the deletion of the first instance of “and”,

(b) in subparagraph (iii), by the substitution of “advice, and” for “advice.”.

43. Amendment of section 54 of Principal Act

43. Section 54 of the Principal Act is amended—

(a) by the substitution of the following subsection for subsection (1):

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

(a) by the ward,

(b) by the committee of the ward, or

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

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

and

(b) by the substitution, in subsection (2)(a), of “is 18 years or older” for “reaches the age of 18 years”.

44. Insertion of new section 54A into Principal Act

44. The Principal Act is amended by the insertion of the following section after section 54:

“Assistance to ward during proceedings

54A. (1) The wardship court, on application being made to it under section 54(1), or in proceedings pursuant to section 54(2) or 54(3), may allow the ward, if he or she has not instructed a legal practitioner, and subject to section 100(13), to be assisted in court by a court friend for the ward unless, subject to sections 100(14) and 103(15A), there is another person (in this section referred to as a ‘court assistant’) in respect of whom the court, having regard to the known will and preferences of the ward, is satisfied that such person is suitable, willing and able to assist the ward during the course of the hearing.

(2) Where, on an application being made to the wardship court under section 54(1), or in proceedings pursuant to section 54(2) or 54(3)—

(a) the ward the subject of the application or proceedings has not instructed a legal practitioner,

(b) there is no court friend for the ward, and

the wardship court may direct the Director to appoint a court friend for the ward.

(3) Proceedings under section 54 shall be conducted with the least amount of formality consistent with the proper administration of justice.”.

45. Amendment of section 55 of Principal Act

45. Section 55 of the Principal Act is amended—

(a) in subsection (2)—

(i) by the substitution of “person the subject of the declaration be” for “former ward be”, and

(ii) by the substitution of “that person.” for “the former ward.”,

(b) in subsection (3)—

(i) by the substitution of “person the subject of the declaration be” for “former ward be”, and

(ii) by the substitution of “that person.” for “the former ward.”,

(i) by the substitution of “wardship court makes” for “court makes”,

(ii) in paragraph (a), by the substitution of “person the subject of the declaration after his or her discharge from wardship” for “former ward”,

(iii) in paragraph (b), by the substitution of “person the subject of the declaration after his or her discharge from wardship” for “former ward”,

(iv) in paragraph (i), by the substitution of “such orders and give such directions” for “such orders”, and

(v) by the substitution of the following paragraphs for paragraph (ii):

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

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

(d) in subsection (5)—

(i) in paragraph (a), by the substitution of “such orders and give such directions” for “such orders”, and

(ii) by the substitution of the following paragraphs for paragraph (b):

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

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

and

(e) by the insertion of the following subsections after subsection (5):

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

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

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

46. Insertion of new section 55A into Principal Act

46. The Principal Act is amended by the insertion of the following section after section 55:

“Review of declaration by wardship court as respects capacity

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

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

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

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

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

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

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

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

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

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

47. Amendment of section 56 of Principal Act

47. Section 56 of the Principal Act is amended by the insertion of the following subsections after subsection (2):

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

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

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

(6) Nothing in this section shall prevent—

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

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

(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),

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

48. Insertion of new section 57A into Principal Act

48. The Principal Act is amended by the insertion of the following section after section 57 and in Part 6 of that Act:

“Amendment of Act of 1995 regarding Part 6

57A. The Act of 1995 is amended—

(a) in section 1(1)—

(i) in the definition of ‘staff of the Board’, by the substitution of ‘Board;’ for ‘Board.’, and

(ii) by the insertion of the following definition:

‘“ward” has the meaning it has in Part 6 of the Assisted Decision-Making (Capacity) Act 2015 .’,

(b) in section 26(3), by the insertion of the following paragraph:

‘(d) a party to an application, or to any other proceedings, under Part 6 of the Assisted Decision-Making (Capacity) Act 2015 shall qualify for legal advice.’,

(c) in section 28, by the insertion of the following subsection after subsection (3A) (inserted by section 52(c) of this Act):

‘(3B) Where the proceedings the subject matter of the application under this section concern an application under subsection (1), or proceedings pursuant to subsection (2) or (3), of section 54 of the Assisted Decision-Making (Capacity) Act 2015 —

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

(b) where the applicant is a ward, paragraph (a) shall not apply.’,

(d) in section 33, by the insertion of the following subsection after subsection (7A) (inserted by section 52(e) of this Act):

‘(7B) Where a legal aid certificate has been granted to an applicant who is a ward who does not satisfy the criteria in respect of financial eligibility specified in section 29, the Board may seek to recover some or all of the costs of providing the legal aid to the ward concerned.’,

and

(e) in section 37(2), by the insertion of the following paragraph after paragraph (fc) (inserted by section 52(f) of this Act):

‘(fd) make provision for the mechanism for recovery of the costs referred to in section 33(7B);’.”.

49. Amendment of section 58 of Principal Act

49. Section 58 of the Principal Act is amended by the substitution of the following definition for the definition of “trust corporation”:

“‘trust corporation’ has the same meaning as it has in paragraph (b) of the definition of ‘trust corporation’ in section 30(4) of the Succession Act 1965 .”.

50. Insertion of new sections 58A and 58B into Principal Act

50. The Principal Act is amended by the insertion of the following sections after section 58:

“Provisions regarding trust corporations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Liability of officers of trust corporation for offences

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

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

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

51. Amendment of section 59 of Principal Act

51. Section 59 of the Principal Act is amended—

(a) in subsection (1)—

(i) by the substitution of “sections 58A, 60” for “sections 60, 62”, and

(ii) in paragraph (a), by the substitution of “donor’s personal welfare or property and affairs, or both;” for “donor’s property and affairs; or”,

(b) in subsection (2), by the substitution of “this Part, regulations made under section 79 and specifications made by the Director under section 79A” for “this Part and regulations made under section 79”,

(c) in subsection (3), by the substitution of “acting as attorney, or resigns from his or her role as attorney” for “acting as attorney”,

(d) by the substitution of the following subsection for subsection (4):

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

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

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

(d) the Director accepts the notification under section 71C.”,

and

(e) by the insertion of the following subsections after subsection (5):

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

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

52. Amendment of section 60 of Principal Act

52. Section 60(1) of the Principal Act is amended—

(a) in paragraph (a)(iii), by the substitution of “registration, and on or after its registration until the attorney notifies the Director under section 71A that the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power of attorney and this notification has been accepted by the Director under section 71C” for “registration”,

(b) in paragraph (b)(ii), by the substitution of “registration, and on or after its registration until the attorney notifies the Director under section 71A that the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power of attorney and this notification has been accepted by the Director under section 71C” for “registration”,

“(c) by—

(i) a registered medical practitioner that in his or her opinion at the time the power was executed, the donor had the capacity to understand the implications of creating the power, or

(ii) a healthcare professional of a class that shall be prescribed, that in his or her opinion at the time the power was executed, the donor had the capacity to understand the implications of creating the power;”,

(d) by the deletion of paragraph (d), and

(e) in paragraph (e)(v), by the substitution of “power, and in relation to notification of the Director under section 71A when the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power” for “power”.

53. Amendment of section 65 of Principal Act

53. Section 65(1) of the Principal Act is amended—

(a) in paragraph (a), by the substitution of “attorney, or the person or property of a child of that person” for “attorney”,

(b) in paragraph (b), by the substitution of “attorney, or a child of that person” for “attorney”, and

54. Amendment of section 66 of Principal Act

54. Section 66(4) of the Principal Act is amended—

(a) in paragraph (g), by the substitution of “section 15A, 34,” for “section 34,”, and

(b) in paragraph (h), by the substitution of the following subparagraph for subparagraph (iii):

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

55. Amendment of section 67 of Principal Act

55. The Principal Act is amended by the substitution of the following section for section 67:

“Function of court prior to acceptance of notification

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

56. Amendment of section 68 of Principal Act

56. Section 68 of the Principal Act is amended—

(a) by the substitution of the following subsection for subsection (1):

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

(b) in subsection (2), by the substitution of “form as specified by the Director under section 79A” for “form”,

(i) by the substitution of “donor, or, as the case may be, his or her attorney, shall” for “attorney shall”,

(ii) by the substitution of “specified by the Director under section 79A” for “prescribed”,

(iii) by the substitution of the following paragraph for paragraph (a):

“(a) where the application was made by the attorney, the donor,”,

(iv) by the insertion of the following paragraph after paragraph (a):

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

and

(v) by the substitution of the following paragraph for paragraph (j):

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

(d) by the insertion of the following subsections after subsection (3):

“(3A) Subsection (3)(b) shall not apply—

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

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

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

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

and

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

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

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

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

(e) in subsection (4), by the substitution of “A donor or attorney, as the case may be, may,” for “An attorney may,”,

(f) by the deletion of subsections (5) and (6),

(g) in subsection (7)—

(i) by the deletion of paragraph (b),

(ii) by the substitution of “donor” for “appointer” in paragraph (c), and

(iii) by the substitution of the following paragraph for paragraph (e):

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

and

(h) by the deletion of subsection (8).

57. Amendment of section 69 of Principal Act

57. Section 69 of the Principal Act is amended—

(a) in subsection (1)—

(i) in paragraph (a), by the substitution of “60 and” for “60, 62 and”,

(ii) by the insertion of the following paragraph after paragraph (c):

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

and

(iii) in paragraph (d), by the deletion of “section 61 and”,

(b) by the insertion of the following subsections after subsection (1):

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

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

(d) in subsection (8), by the substitution of “For the purposes of subsection (7), a document” for “A document”, and

(e) by the insertion of the following subsection after subsection (8):

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

58. Amendment of section 71 of Principal Act

58. Section 71 of the Principal Act is amended—

(a) in subsection (2)—

(i) by the substitution of “in such form as shall be specified by the Director under section 79A” for “in such form”,

(ii) in paragraph (a), by the substitution of “60” for “60, 62”,

(iii) in paragraph (b), by the deletion of “section 61 or”, and

(iv) in paragraph (c), by the substitution of “lacks” for “does not lack”,

(b) in subsection (3)—

(i) in paragraph (b)—

(I) by the substitution of “with the donor” for “with the attorney”, and

(II) by the substitution of “with the attorney” for “the donor”,

(ii) in paragraph (i), by the substitution of “notify the donor, the attorney and the person who made the objection” for “notify the person who made the objection”, and

(iii) by the substitution of the following paragraph for paragraph (ii):

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

(d) by the substitution of the following subsection for subsection (5):

and

(e) by the substitution of the following paragraphs for paragraphs (a) and (b) of subsection (6):

“(a) where the Director has made a decision to which subsection (3)(i) refers—

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

(ii) affirm the decision of the Director,

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

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

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

or”.

59. Insertion of new sections 71A to 71D into Principal Act

59. The Principal Act is amended by the insertion of the following sections after section 71:

“Notification to Director by attorney

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

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

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

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

(i) a registered medical practitioner, or

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

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

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

(a) the donor;

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

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

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

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

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

(h) any designated healthcare representative for the donor;

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

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

(4) Subsection (3)(b) shall not apply—

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

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

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

and

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

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

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

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

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

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

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

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

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

(a) what action he or she took,

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

(d) the outcome of the action.

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

Objections to acceptance by Director of notification

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

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

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

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

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

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

(a) review the objection,

(b) consult with the attorney,

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

and shall, where he or she decides that—

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

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

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

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

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

(i) affirm the decision of the Director, or

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

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

(i) affirm the decision of the Director, or

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

Acceptance by Director of notification

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