Thursday, 7 December 1995
Seanad Éireann Debate
Minister for Arts, Culture and the Gaeltacht (Mr. M. Higgins): This is a technical amendment which makes it clear that the power of attorney applies not only to instruments created for the sole purpose of giving power of attorney, but also to powers of attorney which form part of a larger instrument such as a mortgage.
Mr. M. Higgins: This is about the definition of power of attorney. As it stands the definition requires that the instrument creating such a power be signed by the donee. This is a change in the present law. It has been represented that this new requirement could hinder the completion of commercial transactions which can involve several potential donees having to be available in different places, sometimes in different jurisdictions. This amendment proposes therefore to delete this requirement so far as what might be called ordinary powers of attorney are concerned. No change is being proposed in relation to enduring powers which section 5 envisages will be signed by the attorney in all cases.
Mr. M. Higgins: This is a drafting amendment which brings the amending of section 5 into line with the wording in sections 10 (3) (2) and 12 (4) (g). It makes the language in this section consistent with other sections.
Mr. M. Higgins: Section 5(3) (b) disqualifies the owner of a nursing home in which the donor resides from being an attorney under an enduring power. The disqualification extends to a person residing with or in the employment of the owner unless the owner is a spouse, parent, child or sibling of the donor. This amendment extends disqualification further to persons who are agents of an owner of a nursing home and I believe it will be acceptable to the House.
Mr. M. Higgins: These are technical amendments. An enduring power of attorney only comes into force on registration of the instrument creating it but it can be invalidated before that if, for example, the donor became bankrupt or revoked it. The present text envisages only a case where the enduring power ceases to be in force after registration. These amendments remedy that lacuna by providing for invalidation before registration.
“(5) Where an instrument differs in an immaterial respect in form or mode of expression from the form prescribed by regulations under section 5 (2) (a) the instrument shall be treated as sufficient in point of form and expression.”.
Mr. M. Higgins: This is a drafting amendment. Section 12 (4) (d) authorises the court to cancel the registration of enduring power where the donor has died or has been made bankrupt after the power has been registered. It does not cover cases where the enduring power has ceased to be in force for the  other reasons specified in sections 5,6 and 7 — for example, where the attorney under the power is the spouse of the donor but the marriage no longer exists because the parties have separated. It makes this consistent with previous sections.
Government amendment No. 15:
In page 10, subsection (4) (d), line 37, after “or” where it firstly occurs to insert “by virtue of subsection (6) or (7) of section 5 or by”.
Mr. M. Higgins: This amendment was put down to meet the concerns expressed by the Law Society of Ireland that registration of an enduring power could be refused for a technical reason not affecting the real intent and purpose of the donor in any material way.
Amendment agreed to.
Section 12, as amended, agreed to.
Government amendment No. 16:
In page 11, subsection (2), to delete lines 12 to 15 and substitute the following:
“(2) An attorney who acts in pursuance of an enduring power which is not or no longer a valid power or which has ceased to be in force shall not thereby incur any liability (either to the donor or to any other person) unless at the time of acting the attorney knows—”.
Mr. M. Higgins: This is a drafting amendment. In its opening words, section 13 (2) protects the attorney who  acts without knowing that the enduring power no longer exists. However, paragraphs (a) and (b) fail to refer to the non existence of the power but refer to it being either invalid or ceasing to be in force. This amendment brings the opening words in line with the two paragraph to which I referred and makes the text consistent.
Amendment agreed to.
Government amendment No. 17:
In page 11, subsection (2), lines 19 and 20, to delete “would have caused the power to cease to be in force” and substitute “would have invalidated the power or caused it to cease to be in force”.
Amendment agreed to.
Section 13, as amended, agreed to.
Section 14 agreed to.
Government amendment No. 18:
In page 13, subsection (2), line 1, to delete “The instrument” and substitute “A power of attorney”.
Mr. M. Higgins: This amendment deletes the words “The instrument” and substitutes “a power of attorney” because there is a possibility that the instrument might be interpreted as applying only to the instrument referred to in subsection (1) — only to an instrument signed by a direction of a donor where, for example, they are physically incapable of signing it. The intention was that all instruments creating powers of attorney need not be made under seal. This drafting amendment makes that intention clear.
Amendment agreed to.
Section 15, as amended, agreed to.
 SECTION 16.
Government amendment No. 19:
In page 13, subsection (1), line 7, to delete “donors” and substitute “donees”.
Mr. M. Higgins: This is a drafting amendment to correct a printing error.
Amendment agreed to.
Section 16, as amended, agreed to.
Sections 17 to 25, inclusive, agreed to.
First Schedule agreed to.
Second Schedule agreed to.
Third Schedule agreed to.
Fourth Schedule agreed to.
Title agreed to.
Bill reported with amendment and received for final consideration.
Question proposed: “That the Bill do now pass.”
Mr. Mulcahy: I thank the Minister for dealing with the technical amendments. I welcome the Bill as it brings the law relating to powers of attorney up to date. Members are aware of the previous situation and the Bill will enable family members or lawyers to take a power of attorney for a person of unsound mind or who is going senile so that their affairs can be properly managed.
It is incumbent on the Law Society, the Department of Justice and the Garda authorities to ensure that the provisions of the Bill are never used or abused by criminal elements which might dupe people into giving a power of attorney and signing away their assets or property. I raised this concern on Second Stage and I re-emphasise that point. We are aware of the A1 Capone syndrome in American and continental  jurisdictions where the power of attorney is, unfortunately, widely abused. People abdicate responsibility for their actions and criminals use it as a way to effect their ends.
I ask the Minister to pass on my comments to the Department of Justice. The Bill and its provisions must be strictly monitored; nevertheless, I welcome it.
Mr. Neville: I also welcome the Bill. As Senator Mulcahy said, it updates the law and allows the affairs of people who have difficulties with their cognitive abilities, such as Alzheimer's disease, to be managed. It is important the position is addressed and on that basis I welcome the Bill.
For the second time today I congratulate the Minister for Equality and Law Reform, Deputy Taylor, for initiating this Bill and the Civil Legal Aid Bill in the Seanad. It is a welcome development. This Government is more open to introducing Bills in the Seanad than any previous Government, irrespective of the parties involved. Bills were introduced during the previous Government's period in office but this Minister, Deputy Taylor, has positively examined the role this House can play. The initiation of Bills in the Seanad is welcome and I look forward to many more in the future. I welcome the Bill and congratulate the Minister on his continuing good work.
Minister for Arts, Culture and the Gaeltacht (Mr. M. Higgins): Ba mhaith liom mo bhuíochas a ghabháil leis na Seanadóirí don dara uair inniú.
On behalf of the Minister for Equality and Law Reform, Deputy Taylor, I thank the Senators for their constructive contributions on the Bill. I am working as an agent for my colleague, the Minister for Equality and Law Reform, Deputy Taylor, this morning. I thank the Members, particularly Senator Mulcahy, for facilitating the speedy consideration of the legislation. The beneficiaries of the Bill already exist and as soon as the legislation is enacted, it will  interact with the lives of those who are vulnerable.
I will convey the good wishes of the Seanad to the Minister, Deputy Taylor. The Bill is important as it lays a legal basis for an enduring power of attorney. It also changes the circumstances and conditions for giving a power of attorney. These are positive aspects of law reform. I agree with Senator Neville regarding the advantage of introducing this type of legislation in the Seanad where it receives compassionate, deep consideration and also, where necessary, an expeditious passage. As Senator Mulcahy said, the sooner the Bill is enacted and brought to the notice of the implementing authorities, the better. For the people in situations of vulnerability, with which the Bill deals, a moment longer is a moment too long.
On behalf of my colleague, Minister Taylor, his Department and officials, I thank Senators for their thoughtful contributions and co-operation in passing the legislation.
Question put and agreed to.
Sitting suspended at 12.25 p.m. and resumed at 1 p.m.
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