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Court prior to acceptance of notification

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 lacks capacity in relation to one or more relevant decisions, exercise any power which would become exercisable on the acceptance by the Director a notification and the court may do so whether or not the attorney concerned has so notified the Director.

Application for Registration

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 the Act and any regulations and specifications made thereunder, to register the instrument creating the enduring power of attorney.

An application to register an instrument shall be made in such form as specified by the Director and accompanied by such fee as shall be prescribed.

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

details of any existing decision-making assistance agreement, co- decision-making agreement, decision-making order, decision-making representation order, power of attorney (whether an enduring power or otherwise and whether registered or not) or advance healthcare directive in respect of the donor
a copy of any notice given
where a trust corporation is named as an attorney, the information and documents specified by the Director and
the prescribed fee.

Registration of Enduring Power of Attorney

On receipt of an application for registration , the Director shall review the application and any objections received and shall carry out such reasonable enquiries as he or she considers necessary in order to establish whether the following criteria are met:

the enduring power of attorney and the instrument creating it are in accordance with the Act;
the attorney is a suitable person
the attorney is eligible for appointment or not disqualified -;
where a trust corporation is named as an attorney, that it has complied with the requirements specified by the Director
notice has been given in accordance with the requirements and
the application is in accordance with Act.

Where the instrument creating the enduring power of attorney differs in an immaterial respect from the form specified by the 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 if he or she thinks it appropriate to do so.

If the notice requirements 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 as having been met.

Where, after reviewing an application, the Director is satisfied that the application is in order, he or she shall, , register the instrument creating the enduring power of attorney.

Where, after reviewing an application, the Director forms the view that one or more of the criteria 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.

Notice of Application

The donor, or, as the case may be, his or her attorney, shall, at the same time as he or she makes an application give notice, in such form as shall be specified by the Director , of the application and give a copy of the instrument creating an enduring power of attorney to the following persons:

where the application was made by the attorney, the donor,
where the application was made by the donor, AND
his or her attorney or attorneys, as the case may be,
a spouse or civil partner (if any) of the donor;

the cohabitant (if any) of the donor;
any children of the donor who have attained the age of 18 years;
any decision-making assistant for the donor;
any co-decision-maker for the donor;
any decision-making representative for the donor;
any designated healthcare representative for the donor;
any other attorney for the donor or attorney under the Act of 1996 in respect of the donor;
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 and where there are fewer than 3 persons to whom notice may be given above to the donor shall so specify at least 2 persons.

The above does not apply in relation to the spouse of a donor, where, at the time at which the application is made —

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,
a written agreement to separate has been entered into between the donor and his or her spouse, or
the donor and his or her spouse have separated and have ceased to cohabit for a continuous period of 12 months,

There are equivalent provisions in relation to civil partners.

The above does not apply in relation to the cohabitant of a donor where, at the time at which the application is made the donor and his or her cohabitant have separated and have ceased to cohabit for a continuous period of not less than 12 months.

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

Decision to Register

Following a review of any response received the Director shall—

where he or she is of the view that the criteria set out are satisfied, register, the instrument creating the enduring power of attorney, or
where he or she remains of the view that one or more of the criteria set out is not satisfied, refuse to register the instrument creating the enduring power of attorney and notify the attorney and the donor of that fact and the reasons for his or her view.

A donor whose application is refused may, not later than 21 days after the date of issue of the notification of refusal by the Director, appeal the refusal to the court. Upon an appeal, the court may—

require the Director to register the instrument creating the enduring power of attorney,
affirm the decision of the Director, or
make such other order or declaration as it considers appropriate.

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

A document purporting to be a copy of an instrument creating an enduring power of attorney which has been authenticated by the Director shall be evidence of the contents of the instrument and the date upon which it was registered.

Once the Director has registered or has refused to register 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 as notice parties

Objections to Registration

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

An objection shall be in such form as shall be specified by the Director and shall be accompanied by such fee as shall be prescribed by regulations and may be made on one or more of the following grounds:

that the enduring power of attorney or instrument creating it is not in accordance with the statutory requirements
that the notice requirement was not complied with;
that the donor lacks capacity;
that fraud, coercion or undue influence was used to induce the donor to execute the instrument creating the enduring power of attorney;
that a false statement is included in the instrument creating the enduring power of attorney or the application to register the instrument;
that the attorney is not a suitable person within the criteria in the Act.

Where the Director receives an objection within the period specified, he or she shall—

review the objection,
consult with the donor and, where the Director considers it is appropriate to do so, with the attorney, and
consult with such other persons as he or she considers relevant.

The Director shall

where he or she is of the view that the objection is not well founded, notify the donor, the attorney and the person who made the objection of his or her view, provide reasons for that view and proceed, to register the instrument concerned, or
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.

Appeal

A person who has been notified 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. Upon an appeal , the court may

declare that the objection is well founded and require the Director to remove the instrument concerned from the Register, or
affirm the decision of the Director,
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
affirm the decision of the Director and declare that the instrument creating the enduring power of attorney should not be registered, or]
make such other declaration or order as it considers appropriate.

Notification to Director by Attorney

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, the attorney shall, as soon as is practicable, so notify the Director, in compliance with the Act and in the form specified by the Director.

A notification to the Director shall be accompanied by—

the fee prescribed by the Minister
a statement by each of 2 persons, each being either—a registered medical practitioner, or such other healthcare professional of a class that shall be prescribed by the Minister 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
a copy of any notice given.

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

the donor;
a spouse or civil partner (if any) of the donor;
the cohabitant (if any) of the donor;
any children of the donor who have attained the age of 18 years;
any decision-making assistant for the donor;
any co-decision-maker for the donor;
any decision-making representative for the donor;
any designated healthcare representative for the donor;
any other attorney for the donor or attorney under the Act of 1996 in respect of the donor;
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).

The above does not apply in relation to the spouse of a donor, where, at the time at which the notification is made

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,
a written agreement to separate has been entered into between the donor and his or her spouse, or
the donor and his or her spouse have separated and have ceased to cohabit for a continuous period of 12 months,

Equivalent provisions apply to civil partners.

Where an attorney has made a notification then pending acceptance of the notification by the Director, 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—

to maintain the donor or prevent loss to the donor’s assets,
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
to remunerate the attorney or other persons in so far as that is permitted under the

Following the taking of an action above, an attorney shall report to the Director—

what action he or she took,
the reasons as to why the action could not be deferred until after acceptance by the Director of the notification,
any measures he or she took to encourage the donor to participate in the action taken, and
the outcome of the action.

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.

Objections to Acceptance by Director

Any of the persons referred to above , 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 by the Director.

An objection shall be in such form as specified by the Director and shall be accompanied by such fee as shall be prescribed by regulations and may be made on one or more of the following grounds:

that the notification was not made in accordance with the Act;
that the notice requirements were not complied with;
that the donor does not lack capacity;
that a false statement is included in the notification to the Director.

Where the Director receives a compliant objection within the period specified he or she shall—

review the objection,
consult with the attorney,
unless he or she thinks it inappropriate to do so, consult with the donor,

He shall also consult with such other persons as he or she considers relevant, and shall, where he or she decides that—

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, , to accept the notification of the instrument concerned and to register the acceptance in the Register, or
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.

Appeal to Court

A person who has been notified 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.

Upon an appeal, the court may—

affirm the decision of the Director, or
require the Director to refuse to, or as the case may be, rescind, his or her acceptance of the notification and to make any appropriate modifications to the Register,
affirm the decision of the Director, or
declare that the objection was not well founded and require the Director to proceed to consider, , the notification, taking the court’s declaration into account,
make such other declaration or order as it considers appropriate.

Acceptance by Director of Notification

On receipt of a notification, the Director shall review the notification and any objections received and shall carry out such reasonable enquiries as he or she considers necessary in order to establish whether the following criteria are met:

notice has been given in accordance with the Act
the application is in accordance with the Act.

Where, after reviewing a notification, the Director is satisfied that the notification is in order, he or she shall, , accept the notification and note the fact of the acceptance on the Register.

Following a review of any response received the Director shall—

where he or she is of the view that the criteria set out are satisfied, accept, the notification and note the fact of the acceptance in the Register, or
where he or she remains of the view that one or more of the criteria set out 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.

An attorney whose notification is not accepted may, not later than 21 days after the date of issue of the notification by the Director appeal the refusal by the Director to accept the notification to the court. Upon an appeal the court may—

require the Director to accept the notification and note the acceptance in the Register,
affirm the decision of the Director, or
make such other order or declaration as it considers appropriate.

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.

Once the Director has accepted or has refused to accept under this section a notification under the attorney concerned shall, as soon as practicable, give notice to the persons referred to , in the form specified.

Effect and Proof of Acceptance by Director

The effect of the acceptance by the Director of a notification is that—

no purported revocation of the enduring power of attorney by the donor shall be valid unless the Director recognises a written notice of revocation,
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, and
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 of a notification 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.

This applies for as long as the acceptance of the notification is in force.