New Enduring Powers

The Assisted Decision-Making (Capacity) Act 2015 makes new provision for the grant and registration of enduring powers of attorney. After the commencement of 2015 Act, a person must create an enduring power in accordance with the 2015 Act and the 1996 Act shall not apply to them.

The 2015 Act is in broadly similar terms. The power does not enter force until the donor lacks capacity in relation to one or more of the relevant decisions, the subject of the power and the instrument has been registered. The instrument may confer general or limited power.

Provision is made for certification by a healthcare professional of a prescribed class in relation to the capacity of the donor in relation to the implications of creating the power. This is supplemental to the provisions in respect of registered medical practitioners.

If the donor proposes to remunerate the attorney for performing his functions, the instrument shall specify the proposed remuneration and the functions to which it relates.

Notice of execution of the power is to be given to the same parties as under 1996 legislation and also to decision making assistants, co-decision-makers, appointed decision-making representatives, or designated healthcare representatives and donors of other powers of attorney under the 1996 Act or such other persons as may be specified by the donor in the instrument.

Where there are fewer than three persons to whom notice may be given above, the donor shall specify two persons as persons to whom notice shall be given.

Authority may be given in relation to personal welfare decisions and/or property and affairs decision. The provisions applicable to restraining the donor in exceptional circumstances which apply under the 2015 Act, in respect of appointed representatives apply to attorneys.

The restraint is only permissible to prevent an imminent risk of harm to the donor or another person and must be proportionate. A person who restrains the donor must cease the restraint immediately upon it being no longer necessary.

A donor shall not, in an enduring power of attorney, include a decision relating to refusal of life-sustaining treatment, or include a decision which is the subject of an advanced healthcare directive made to him.

The provisions in respect of authority over property and affairs are broadly similar to those in the 1996 Act. Provisions may be made for customary gifts or gifts to charities, provided the value of the gift is reasonable.

Attorneys may be appointed jointly, jointly and severally, or jointly and severally in respect of certain matters and acts only.

The categories of persons disqualified from being decision-making assistants and representatives under the 2015 Act generally are disqualified from being an attorney. See the separate sections concerned which are significantly broader than under the prior legislation.

In particular, it includes

• persons convicted of an offence in relation to the person or property of the donor,
• a person who is the subject of safety and barring orders;
• undischarged bankrupts or persons in debt settlement arrangements;
• persons convicted of an offence involving fraud or dishonesty; restricted or disqualified directors;
• owner, employees or agents of a registered provider of a designated centres or mental health facilities.

The provisions in relation to disqualification of attorneys are similar. Persons may become disqualified, if after the date of the deed their marriage is annulled, dissolved, subject to judicial separation or they enter a separation agreement. Cohabiting parties who separate for 12 months are disqualified.

Where the above circumstances apply, after registration, the person shall become disqualified.

The attorney is disqualified if the attorney himself enters a decision-making assistance agreement; decision-making agreement has an enduring power of attorney appointed or becomes the subject of a declaration in relation to his incapacity.

A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke an enduring power commits an offence. He is liable on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both.

He is liable on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding five years, or both.

A person who, in an instrument creating an enduring power, in an application for registration or in connection with an application, makes a statement which he knows to be false in a material respect, commits an offence. He is liable on summary conviction, to a class A fine and up to six months imprisonment or on conviction on indictment, to a fine not exceeding €15,000 or imprisonment for up to two years, or both.

Coercion or undue influence includes any case where a person’s access to, or continued stay in, a designated centre or mental health facility, is contingent in whole or in part on the person having to be or being led to believe that he has to, create, vary or revoke an enduring power.