When the relevant sections are commenced, the following offences will be created:
Fraud, Coercion or Undue Influence
It will be a criminal offence to use fraud, coercion or undue influence to force another person to make, vary or revoke a decision support arrangement.
For the purposes of this criminal offence, 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 (whether in whole or in part) on the person having to, or being led to believe that he or she has to, make, vary or revoke the relevant decision support arrangement.
The offence carries the following penalties:
- on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or
- on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.
Section 15A of the 2015 Act (as inserted by Section 14 of the 2022 Act) creates the offence in respect of Decision-Making Assistance Agreements.
Section 34 of the 2015 Act creates the offence in respect of Co-Decision-Making Agreements.
Section 80 of the 2015 Act creates the offence in respect of Enduring Powers of Attorney.
Section 90 of the 2015 Act creates the offence in respect of Advance Healthcare Directives.
Making a False Statement
Co-Decision-Making Agreements
2015 Act, Section 34(2) – A person who, in an application for registration of a co-decision-making agreement, or in connection with such an application, makes a statement which he or she knows to be false in a material particular commits an offence and shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €15,000 or imprisonment for a term not exceeding 2 years, or both.
Enduring Powers of Attorney
2015 Act, Section 80(2) (as amended by Section 70 of the 2022 Act) – A person who, in an instrument creating an enduring power of attorney, in an application for registration of an enduring power of attorney, or in connection with such an application, or in a notification to the Director under section 71A or in connection with such a notification, makes a statement which he or she knows to be false in a material particular commits an offence and shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €15,000 or imprisonment for a term not exceeding 2 years, or both.
Interfering with an Advance Healthcare Directive
2015 Act, Section 90(2) – A person who knowingly creates, falsifies or alters, or purports to revoke, an advance healthcare directive on behalf of another person without that other person’s consent in writing when the other person has the capacity to do so commits an offence and shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.
Ill-Treatment or Wilful Neglect
2015 Act, Section 145 – A decision-making assistant, co-decision-maker, decision-making representative, attorney for the relevant person, or designated healthcare representative who ill-treats or wilfully neglects the relevant person shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a class A fine and imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.
Liability of Officers of Trust Corporations for Offences
2015 Act, Section 58B (as inserted by Section 50 of the 2022 Act) –
(1) Where an offence under section 80 or section 145 has been committed by a trust corporation and the doing of the acts that constituted the offence has been authorised, or consented to, or connived in, by a person, being a director, manager, chief executive officer, secretary, or other similar officer of the trust corporation, or a person who purports to act in any such capacity, that person as well as the trust corporation shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(2) Where a person is proceeded against as aforesaid for such an offence and it is proved that, at the material time, he or she was a director of the trust corporation concerned or a person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the trust corporation, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is proved, that that person consented to the doing of the acts by the trust corporation which constituted the commission by it of the offence concerned under section 80 or 145.
(3) Where the affairs of a trust corporation are managed by its members, subsections (1) and (2) shall apply in relation to the acts or defaults of a member in connection with his or her functions of management as if he or she were a director of the trust corporation.
Last Updated: 1 March 2023