Powers of Attorney Act, 1996

• Jurisdiction: Ireland
• Citation: IR No. 12/1996

Number 12 of 1996
POWERS OF ATTORNEY ACT, 1996
ARRANGEMENT OF SECTIONS
PART I
Preliminary and General
Section 1. Short title and commencement. 2. Interpretation generally. 3. Statutory declaration by company.
PART II
Enduring Powers of Attorney.
4. Interpretation. 5. Characteristics of enduring power. 6. Scope of authority of attorney under enduring power. 7. Coming into force and survival of enduring power. 8. Functions of court prior to registration. 9. Application for registration. 10. Registration. 11. Effect and proof of registration. 12. Functions of court with respect to registered power. 13. Protection of attorney and third person where registered power invalid or not in force. 14. Application to joint and joint and several attorneys.
PART III
Powers of Attorney Generally
15. Creation of power. 16. Effect of general power in specified form. 17. Execution of instruments, etc. by donee of power. 18. Protection of donee and other persons where power revoked. 19. Protection of transferee under stock exchange transaction. 20. Power given as security. 21. Proof of instrument creating power. 22. Deposit of original instruments in Central Office. 23. Furnishing to purchaser of power relating to land.
PART IV
Miscellaneous
24. Laying of orders and regulations before Houses of Oireachtas. 25. Repeals.
FIRST SCHEDULE
Notification Prior to Registration
SECOND SCHEDULE
Joint and Jointand Several Attorneys
THIRD SCHEDULE
Form of General Power of Attorney
FOURTH SCHEDULE
Enactments Repealed
Number 12 of 1996
POWERS OF ATTORNEY ACT, 1996
AN ACT TO PROVIDE FOR POWERS OF ATTORNEY TO OPERATE WHEN THE DONOR OF THE POWER IS OR IS BECOMING MENTALLY INCAPABLE AND TO AMEND IN OTHER RESPECTS THE LAW RELATING TO POWERS OF ATTORNEY GENERALLY. [5th June, 1996]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART I Premiminary and General
	Short title and commencement.	1.—(1) This Act may be cited as the Powers of Attorney Act, 1996.
	(2) This Act shall come into force on such day or days as the Minister shall appoint by order or orders either generally or with reference to any particular provisions and different days may be so fixed for different provisions.
	Interpretation generally.	2.—(1) In this Act, unless the context otherwise requires—
	“convey” includes transfer, lease and assign, and “conveyance” shall be construed accordingly;
	“power” means power of attorney;
	“power of attorney” means an instrument signed by or by direction of a person (the donor), or a provision contained in such an instrument, giving the donee the power to act on behalf of the donor in accordance with the terms of the instrument;
	“statutory declaration” includes a statutory declaration made in accordance with section 3 .
	(2) (a) In this Act a reference to a Part, section or Schedule is a reference to a Part, section or Schedule of this Act unless it is indicated that reference to some other enactment is intended.
	(b) In this Act a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.
	(3) In this Act a reference to an Act is to that Act as subsequently amended.
	Statutory declearation by company.	3.—Where, for any purpose of this Act, a statutory declaration is to be made by a person being a corporation aggregate it may be made on behalf of the corporation by a person authorised by the corporation to act on its behalf.
PART II Enduring Powers of Attorney
	Interpretation.	4.—(1) In this Part—
	“affairs”, in relation to a donor of an enduring power, means business or financial affairs of the donor;
	“attorney” means the donee of an enduring power and includes a person acting in pursuance of section 5 (3) and complying with the provisions of this Act and regulations made thereunder;
	“the court” means the High Court;
	“enduring power” shall be construed in accordance with section 5 (1);
	“mental incapacity”, in relation to an individual, means incapacity by reason of a mental condition to manage and administer his or her own property and affairs and cognate expressions shall be construed accordingly;
	“the Minister” means the Minister for Equality and Law Reform;
	“notice” means notice in writing;
	“personal care decision”, in relation to a donor of an enduring power, means a decision on any one or more of the following matters:
	(a) where the donor should live,
	(b) with whom the donor should live,
	(c) whom the donor should see and not see,
	(d) what training or rehabilitation the donor should get,
	(e) the donor's diet and dress,
	(f) inspection of the donor's personal papers,
	(g) housing, social welfare and other benefits for the donor;
	“registration”, in relation to an enduring power of attorney, means registration under section 10 , and “registered” shall be construed accordingly.
	(2) An application or reference to the court under this Part shall be made in a summary manner.
	(3) If any question arises under this Part as to what the donor of the enduring power might at any time be expected to do it shall be assumed that the donor had the mental capacity to do so.
	Characteristics of enduring power.	5.—(1) A power of attorney is an enduring power within the meaning of this Act if the instrument creating the power contains a statement by the donor to the effect that the donor intends the power to be effective during any subsequent mental incapacity of the donor and complies with the provisions of this section and regulations made thereunder.
	(2) The Minister may make provision by regulations in relation to all of the following matters concerning enduring powers of attorney:
	(a) their form,
	(b) their execution,
	(c) ensuring that any document purporting to create an enduring power incorporates adequate information as to the effect of creating or accepting the power,
	(d) the inclusion in the document of all of the following statements—
	(i) by the donor, that the donor has read the information as to the effect of creating the power or that such information has been read to the donor,
	(ii) by a solicitor (or a member of some other specified class of persons), that, after interviewing the donor and making any necessary enquiries, the solicitor or such member—
	(I) is satisfied that the donor understood the effect of creating the power, and
	(II) has no reason to believe that the document is being executed by the donor as a result of fraud or undue pressure,
	(iii) by a registered medical practitioner, that in his or her opinion at the time the document was executed the donor had the mental capacity, with the assistance of such explanations as may have been given to the donor, to understand the effect of creating the power,
	(iv) by the attorney, that the attorney understands the duties and obligations of an attorney and the requirements of registration under section 10 ,
	(e) the keeping of accounts by the attorney in relation to the management and disposal of the donor's property,
	(f) the remuneration, if any, to be paid to the attorney,
	(g) the attestation of the signatures of the donor and the attorney,
	(h) specific provision for cases where more than one attorney is appointed,
	(i) the giving by the donor to specified persons of notice of the execution of the power, and
	(j) if the regulations amend or revoke any regulations previously made under this subsection, saving and transitional provisions.
	(3) The donor of an enduring power may in the document creating the power appoint one or more specified persons, being persons who are not disqualified, to act as attorney if an attorney appointed by the power dies or is unable or declines to act or is disqualified from acting as attorney.
	(4) A power of attorney cannot be an enduring power unless, when executing the instrument creating it, the attorney is—
	(a) (i) an individual who has attained 18 years and has not been adjudicated bankrupt or convicted of an offence involving fraud or dishonesty or an offence against the person or property of the donor or is not—
	(I) a person in respect of whom a declaration has been made under section 150 of the Companies Act, 1990 , or
	(II) a person who is or was subject or deemed subject to a disqualification order by virtue of Part VII of that Act,
	or
	(ii) a trust corporation (within the meaning of section 30 of the Succession Act, 1965 ),
	and
	(b) not the owner of a nursing home (whether or not it is a nursing home within the meaning of the Health (Nursing Homes) Act, 1990 ) in which the donor resides, or a person residing with or an employee or agent of the owner, unless the attorney is a spouse, parent, child or sibling of the donor.
	(5) A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power.
	(6) Subject to subsection (8) and sections 14 (3) and 14 (5), an enduring power shall be invalidated or, as the case may be, shall cease to be in force on the adjudication in bankruptcy of the attorneyor, if the attorney is a body corporate, by its winding up or dissolution or on the attorney being convicted of an offence referred to in subsection (4) (a) (i) or becoming—
	(a) a person referred to in clause (I) or (II) of subsection (4) (a) (i) or
	(b) an owner of a nursing home or other person referred to in subsection (4) (b),
	unless the attorney is an attorney...