Assisted Decision-Making (Capacity) Act 2015


Applications to court

77. (1) Where the Director makes an application to the court for a determination on whether the instrument creating an enduring power of attorney should be registered, the court may, notwithstanding that—

(a) the enduring power of attorney or the instrument creating it does not comply with section 59 or section 60, or

(b) the application to register the instrument was not in accordance with section 68,

register the instrument where it is satisfied that—

(i) the donor intended the power to be effective during any period when the donor lacks capacity,

(ii) fraud, coercion or undue pressure was not used to induce the donor to appoint an attorney,

(iii) the attorney is suitable within the meaning of section 59(6) to be the donor’s attorney, and

(iv) it is desirable in the interests of justice to register the enduring power.

(2) In determining whether an attorney is suitable within the meaning of section 59(6), the court, in addition to any other matters which it considers relevant shall have regard to—

(a) the relationship and degree of connection between the donor and the attorney,

(b) the degree of involvement which will be required on the part of the attorney in the care of the donor,

(c) the willingness of the attorney to carry out his or her functions under the enduring power, and

(d) any conflict of interest which may arise.

(3) Where an instrument creating an enduring power of attorney has been F115[the subject of a notification under section 71A that has been accepted by the Director under section 71C], the court may, whether on application by the donor, the attorney, the Director or an interested party—

(a) determine any question as to the meaning or effect of the power,

(b) give directions with respect to—

(i) a relevant decision relating to the personal welfare of the donor made or about to be made by the attorney,

(ii) the management or disposal by the attorney of the property and affairs of the donor, and

(iii) the remuneration or expenses of the attorney, whether or not in default of or in accordance with any provision of the enduring power, including directions for the repayment of excessive, or the payment of additional, remuneration,


F115[(c) consent to a resignation by the attorney of his or her role as attorney under the enduring power of attorney.]

(4) Where the court gives a determination under subsection (3)(a), a direction under subsection (3)(b) or a consent under subsection (3)(c), it shall cause the Director to be notified of such direction or consent and the Director shall monitor the giving of effect by the attorney to such direction or consent as the case may be.




Substituted (26.04.2023) by Assisted Decision-Making (Capacity) (Amendment) Act 2022 (46/2022), s. 66(a), (b), S.I. No. 194 of 2023.