Personal Insolvency Act 2012


Personal insolvency practitioner to advise debtor.

52.— (1) On completion of the Prescribed Financial Statement in accordance with section 50, the personal insolvency practitioner shall, on the basis of the information disclosed to him or her by the debtor under section 50(1), advise the debtor of the following:

(a) his or her options for addressing his or her financial difficulties;

(b) his or her eligibility under section 57 or 91, as the case may be, to make a proposal for a Debt Settlement Arrangement or a Personal Insolvency Arrangement, as the case may be;

(c) the personal insolvency practitioner’s opinion as to whether it would be more appropriate for the debtor to enter into a Personal Insolvency Arrangement or a Debt Settlement Arrangement.

(2) The advice referred to in subsection (1)(a) shall include advice relating to—

(a) the appropriateness or otherwise of the debtor making a proposal for and entering into an arrangement, having regard to such matters as the personal insolvency practitioner considers relevant, but in any case, including—

(i) the debtor’s financial and other circumstances as set out in the Prescribed Financial Statement,

(ii) whether the debtor is likely to be able to meet the financial commitment associated with an arrangement on an ongoing basis, in particular having regard to the debtor’s payment capacity at and before the time at which the advice is being given,

(iii) the nature and extent of the debts owed by the debtor to his or her creditors and, in the case of secured debts (if any), the nature of the security,

(iv) the complexity of the debtor’s case, and

(v) the likelihood, in the personal insolvency practitioner’s opinion, of an arrangement being formulated on terms that would provide, for the debtor and a majority of his or her creditors, an acceptable alternative to the debtor’s bankruptcy;

(b) the general effect of making a proposal for, and of entering into, an arrangement, including as to the effect on the debtor’s credit rating;

(c) the consequences for the debtor of entering into an arrangement if the debtor does not comply with the terms of that arrangement;

(d) the other option or options (if any) available to the debtor and the general effect of any such option or options, including advice relating to—

(i) negotiation with a creditor or creditors with a view to adjusting the terms of a debt owed to that creditor or creditors, whether as part of any arrears process or otherwise,

(ii) becoming a specified debtor as respects a Debt Relief Notice, and

(iii) bankruptcy.

(3) In advising the debtor under subsection (1)(c) of the appropriateness of entering into a Personal Insolvency Arrangement or a Debt Settlement Arrangement, the personal insolvency practitioner shall have regard to—

(a) the value of the debtor’s unsecured debts as compared to the value of the debtor’s secured debts (if any),

(b) if applicable, whether the debtor has communicated with his or her secured creditors for the purpose of seeking to renegotiate or restructure the secured debts,

(c) whether the debtor has co-operated in good faith with his or her creditors who are secured creditors as respects the debtor’s principal private residence in connection with any process relating to mortgage arrears operated by the secured creditors concerned which has been approved or required by the Central Bank of Ireland and which relates to the secured debt concerned,

(d) whether any of the debtor’s secured creditors have indicated to the debtor or the personal insolvency practitioner a willingness to vary the terms of the secured debt to facilitate the operation of a Debt Settlement Arrangement in respect of the debtor’s unsecured debts (including, without limitation, any variation of the terms of the secured debt that would reduce the amounts payable by the debtor in respect of the secured debt for the duration of the Debt Settlement Arrangement),

(e) where the debtor has proposed, but not entered into, a Debt Settlement Arrangement in respect of his or her unsecured debts, the terms of such proposal and the result of the creditors’ meeting to consider such proposal, and

(f) where the debtor has entered into a Debt Settlement Arrangement in respect of his or her unsecured debts that has come to an end, failed or otherwise terminated, the circumstances of such ending, failure or other termination.

(4) The personal insolvency practitioner shall confirm his or her advice under subsection (1)(c) in writing to the debtor.

(5) Where the advice of a personal insolvency practitioner under subsection (1) is that the debtor should not make a proposal for, or enter into, an arrangement, the personal insolvency practitioner shall notify the Insolvency Service of that fact, and the appointment of the personal insolvency practitioner under section 49(3) shall come to an end.