ASSISTED DECISION-MAKING (CAPACITY) (AMENDMENT) ACT 2022

Type Act

Publication 2022-12-17

State In force

Text As published

Source Irish Statute Book

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articles 104

This is the act as published. Later amendments are not folded into the text below: each one is a separate act in this repository and an entry in this law's history.

Act to give further effect to the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; for that and other purposes to amend the Assisted Decision-Making (Capacity) Act 2015; to amend the Juries Act 1976, the Electoral Act 1992, the National Disability Authority Act 1999, the Disability Act 2005, the Irish Human Rights and Equality Commission Act 2014 and the Freedom of Information Act 2014; and to provide for related matters.

Reform history JSON API

“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,

(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.”,

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):

“(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 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

(c) a copy of any notice given under subsection (3).

(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;

(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;

(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)—

(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 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

(c) to remunerate the attorney or other persons in so far as that is permitted under the power.

(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,

(c) any measures he or she took to encourage the donor to participate in the action taken, and

(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;

(c) that the donor does not lack capacity;

(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,

(c) unless he or she thinks it inappropriate to do so, consult with the donor, and

(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,

or

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

Acceptance by Director of notification

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

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

(b) the application is in accordance with section 71A.

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

(3) Where, after reviewing an application under section 71A, the Director forms the view that one or more of the criteria in paragraphs (a) and (b) 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) and (b) of subsection (1) are satisfied, accept, subject to section 71B, the notification and note the fact of the acceptance in the Register, or

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

(5) An attorney whose notification under section 71A is not accepted may, not later than 21 days after the date of issue of the notification by the Director under subsection (4)(b), appeal the refusal by the Director to accept the notification to the court.

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

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

(b) affirm the decision of the Director, or

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

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

(8) For the purposes 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 notified.

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

71D. (1) The effect of the acceptance by the Director under section 71C of a notification under section 71A is that—
- (a) no purported revocation of the enduring power of attorney by the donor shall be valid unless the Director recognises a written notice of revocation under section 73A,

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

- (c) subject to section 73A, the donor may not extend or restrict the scope of the authority conferred by him or her in the enduring power and no consent or instruction given by the donor after acceptance by the Director under section 71C of a notification under section 71A shall, in the case of a consent, confer any right and in the case of an instruction, impose or confer any obligation or right on or create any liability of the attorney or other persons having notice of the consent or instruction.
(2) Subsection (1) applies for as long as the acceptance of the notification is in force.”.

60. Amendment of section 72 of Principal Act

60. Section 72 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “attorney that have been registered by him or her under section 69” for “attorney”,

(b) in subsection (2), by the substitution of “appropriate, but shall specify which instruments are, and which instruments are not, the subject of a notification under section 71A that has been accepted by the Director under section 71C” for “appropriate”,

(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”,

(d) in subsection (4), by the substitution of “instrument creating an enduring power of attorney that is the subject of a notification under section 71A that has been accepted by the Director under section 71C, or part thereof, and any variations to the enduring power or part thereof,” for “enduring power, or part thereof,”, and

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

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

61. Amendment of section 73 of Principal Act

61. Section 73 of the Principal Act is amended—

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

“(1) An enduring power of attorney that has been registered under section 69 may be varied or revoked by the donor where the instrument creating the enduring power of attorney has not been the subject of a notification under section 71A that has been accepted by the Director under section 71C.”,

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

(i) by the deletion of paragraphs (c) and (d), and

(ii) in paragraph (e), by the substitution of “in the case of a variation, that he or she is aware of the variation” for “that he or she is aware of the variation or revocation”,

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

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

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

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

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

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

and

(e) by the deletion of subsections (5) and (6).

62. Insertion of new section 73A into Principal Act

62. The Principal Act is amended by the insertion of the following new section after section 73:

“Provisions regarding where donor regains capacity after acceptance by Director of notification

73A. (1) The following persons:

(a) the donor;

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

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

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

may, after the acceptance by the Director under section 71C of a notification under section 71A—
- (i) request the Director to rescind his or her acceptance as a result of the donor having regained capacity, or

- (ii) request the Director to rescind his or her acceptance as a result of the donor having regained capacity and to recognise the revocation by the donor of the instrument creating the enduring power.
(2) A request under paragraph (i) or (ii), as the case may be, of subsection (1), shall be in the form specified by the Director under section 79A and shall be accompanied by—

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

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

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

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

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

(i) a registered medical practitioner, or

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

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

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

(e) in the case of a request under subsection (1)(ii), a written notice of revocation by the donor of the instrument creating the enduring power of attorney in the form specified by the Director under section 79A.
(3) Where the Director receives a request under paragraph (i) or (ii), as the case may be, of subsection (1) that is in accordance with subsection (2), he or she shall—

(a) review the request,

(b) consult with the attorney,

(c) consult with the donor, and

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

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

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

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

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

    - (III) modify the Register accordingly,

      or

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

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

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

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

    - (IV) modify the Register accordingly.
(4) A person who receives a notification under subsection (3)(i) may, not later than 21 days after the date of issue of the notification by the Director under subsection (3)(i), appeal the notification concerned to the court.

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

(a) in the case of a request under subsection (1)(i), require the Director to accept the request, rescind his or her acceptance under section 71C of the notification under section 71A and make the appropriate modifications to the Register,

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

(c) affirm the notification by the Director under subsection (3)(i), or

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

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

(7) Where a request under subsection (1)(i) has been accepted by the Director, the enduring power of attorney shall be deemed to be a power of attorney that has been registered under section 69 and the provisions of this Part (other than section 71) shall apply accordingly.”.

63. Amendment of section 74 of Principal Act

63. The Principal Act is amended by the substitution of the following section for section 74:

“Resignation by attorney

74. (1) An attorney—

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

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

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

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

64. Amendment of section 75 of Principal Act

64. Section 75 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “a notification having been made under section 71A that has been accepted by the Director under section 71C in relation to the enduring power” for “the registration of the instrument appointing him or her as attorney”,

(b) in subsection (2)—

(i) by the substitution of “shall, after a notification has been made under section 71A that has been accepted by the Director under section 71C in relation to the enduring power, keep” for “shall keep”, and

(ii) in paragraph (b), by the substitution of “Director, by a general visitor” for “Director”,

(c) in subsection (3), by the substitution of “a notification has been made under section 71A that has been accepted by the Director under section 71C in relation to the enduring power” for “registration of the instrument appointing him or her as attorney”,

(d) in subsection (4)—

(i) by the substitution of “specified by the Director under section 79A” for “prescribed by regulations made under section 79”, and

(ii) by the substitution of “as are specified” for “as are prescribed”,

(e) by the deletion of subsection (5),

(f) by the substitution of the following subsection for subsection (7):

“(7) Where an attorney fails to comply with a notification under subsection (6), the Director—

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

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

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

(g) by the insertion of the following subsections after subsection (7):

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

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

(h) by the substitution of the following subsection for subsection (8):

“(8) Pursuant to an appeal to it under subsection (7B), the court may—

(a) affirm the determination of the Director,

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

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

and

(i) by the substitution of the following subsection for subsection (9):

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

65. Amendment of section 76 of Principal Act

65. Section 76 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 “attorney, or in breach of this Act” for “attorney”,

(ii) in paragraph (c), by the substitution of “attorney, to vary or revoke an enduring power of attorney under section 73, to make a request under section 73A(1)(i) or to make a request and written notice of revocation under section 73A(1)(ii);” for “attorney.”, and

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

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

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

(b) by the insertion of the following subsections after subsection (2):

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

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

(i) by the substitution of “The Director shall, as soon as is practicable after having formed a view under subsection (2A)” for “Following the receipt of a complaint under subsection (1) or (2), the Director shall carry out an investigation of the matter which is the subject of the complaint and”,

(ii) in paragraph (a)—

(I) by the substitution of “well founded, and, in the case of a complaint under subsection (2), notwithstanding section 12 of the Act of 1996” for “well founded”, and

(II) 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 attorney regarding the role of the attorney 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 (2A), 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 (4), by the substitution of “3 months” for “21 days”,

(e) in subsection (5), 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) or (2)”,

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

“(5A) Where subsection (3)(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.

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

(g) in subsection (6)—

(i) in paragraph (a), by the deletion of “or (5) ”,

(ii) in paragraph (b), by the substitution of “subsection (4) or (6B)(b)” for “subsection (4)”,

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

(iv) in paragraph (ii), by the substitution of “1996, and that the registration of the instrument creating the enduring power under the Act of 1996 shall be cancelled, and such cancellation shall have the same effect as if the registration had been cancelled by the High Court under the Act of 1996.” for “1996.”,

(h) by the insertion of the following subsections after subsection (6):

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

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

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

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

(i) in subsection (7), by the substitution of “section 95” for “sections 95 and 96”, and

(j) in subsection (8), by the substitution of “sections 95 and 99” for “sections 95, 96 and 99”.

66. Amendment of section 77 of Principal Act

66. Section 77(3) of the Principal Act is amended—

(a) by the substitution of “the subject of a notification under section 71A that has been accepted by the Director under section 71C” for “registered”, and

(b) by the substitution of the following paragraph for paragraph (c):

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

67. Amendment of section 78 of Principal Act

67. Section 78 of the Principal Act is amended—

(a) in subsection (1)—

(i) in paragraph (a), by the substitution of “section 73A” for “section 73(6) ”, and

(ii) in paragraph (b), by the substitution of “disqualified, dies, resigns from his or her role as attorney or is unable to act” for “disqualified”,

and

(b) by the substitution of the following subsection for subsection (2):

“(2) In the circumstances described in subsection (1)(b), where there is at least one attorney remaining due to—

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

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

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

68. Amendment of section 79 of Principal Act

68. The Principal Act is amended by the substitution of the following section for section 79:

“Regulations - Part 7

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

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

(a) the class of healthcare professionals under sections 60(1)(c)(ii), 71A(2)(b)(ii) and 73A(2)(c)(ii);

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

(c) the safeguards that shall apply in relation to consent and data protection in the conduct of health and social care research involving relevant persons;

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

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

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

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

(iv) an objection under section 71B(1),

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

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

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

and

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

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

69. Insertion of new section 79A into Principal Act

69. The Principal Act is amended by the insertion of the following section after section 79:

“Matters to be specified by Director in relation to enduring powers of attorney

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

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

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

(c) the form of notice under section 68(3) of an application to register an instrument;

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

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

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

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

(h) the form of an objection under section 71B to the acceptance of a notification by the Director;

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

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

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

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

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

(n) the form of notice under section 73A(6);

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

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

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

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

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

(c) ensure that the forms are made available in accessible formats, and

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

70. Amendment of section 80 of Principal Act

70. Section 80(2) of the Principal Act is amended by the substitution of “such an application, or in a notification to the Director under section 71A or in connection with such a notification,” for “such an application,”.

71. Amendment of section 81 of Principal Act

71. Section 81 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “subsections (2) to (8) of section 76” for “sections 76(2), 76(3), 76(4), 76(5), 76(6), 76(7) and 76(8)”, and

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

“(1A) Notwithstanding subsection (1), an application may, where the Minister has made regulations under paragraph (b), be made for the registration of an instrument creating an enduring power under the Act of 1996 that has not been registered under section 10 of that Act and—

(a) sections 68 and 69 shall not apply in relation to the application,

(b) the Minister may make regulations to provide for the registration process for the instrument, and to specify any requirements for registration, and

(c) the Director may waive any or all fees under this Part in connection with that registration.”.

72. Amendment of section 82 of Principal Act

72. Section 82 of the Principal Act is amended by the deletion of the definition of “treatment”.

73. Amendment of section 84 of Principal Act

73. Section 84 of the Principal Act is amended—

(a) in subsection (12)—

(i) in paragraph (a), by the substitution of “advance healthcare directive, or any revocation or alteration thereof,” for “advance healthcare directive”, and

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

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

and

(b) by the insertion of the following subsections after subsection (12):

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

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

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

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

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

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

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

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

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

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

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

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

74. Amendment of section 85 of Principal Act

74. Section 85 of the Principal Act is amended—

(a) by the deletion of subsection (6), and

(b) in subsection (7), by the substitution of the following paragraph for paragraph (a):

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

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

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

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

75. Amendment of section 88 of Principal Act

75. Section 88(4) of the Principal Act is amended by the substitution of the following for paragraph (b):

“(b) The Director—

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

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

76. Amendment of section 89 of Principal Act

76. Section 89(3)(b)(ii) of the Principal Act is amended by the substitution of “her pregnancy” for “the unborn”.

77. Amendment of section 92 of Principal Act

77. Section 92(3) of the Principal Act is amended by the substitution of the following paragraph for paragraph (h):

“(h) an attorney or an attorney under the Act of 1996 for the directive-maker,”.

78. Amendment of section 95 of Principal Act

78. Section 95 of the Principal Act is amended—

(a) in subsection (1), by the insertion of the following paragraph after paragraph (j):

“(ja) to make recommendations to the Minister for Health on any matter relating to the operation of Part 8;”,

(b) in subsection (3)—

(i) by the substitution of “Save where the Minister is empowered under this Act to prescribe fees by regulations, the Director” for “The Director”, and

(ii) by the substitution of “specify” for “prescribe by regulations”,

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

“(5) In carrying out his or her functions, the Director may—

(a) consult with any person who has any functions in relation to the care or treatment of a relevant person, and

(b) request information relating to the carrying out of functions under this Act from decision-making assistants, co-decision-makers, decision-making representatives, attorneys, designated healthcare representatives or relevant persons.”.

79. Insertion of new sections 95A and 95B into Principal Act

79. The Principal Act is amended by the insertion of the following sections after section 95:

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