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Application for appointment of family successor: farm or relevant business
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3. The Principal Act is amended, in Part 2, by the insertion of the following section after section 14:
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“14A. (1) This section applies where—
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(a) the Executive has made a determination under section 7(8)(a) that a person (in this section referred to as the ‘relevant person’) needs care services,
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(b) the Executive has made a determination under section 11(1) in relation to the relevant person,
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(c) the relevant person is receiving care services, and
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(d) the relevant person or his or her partner falls into one or more of the following categories—
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(i) he or she has an interest in a farm,
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(ii) he or she has an interest in a relevant business,
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(iii) he or she had an interest in a farm which is a transferred asset, or
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(iv) he or she had an interest in a relevant business which is a transferred asset.
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(2) On the application of the relevant person, the Executive shall—
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(a) if satisfied that the conditions in subsection (3) are met, appoint the person specified in the application as the family successor in respect of the relevant person in relation to the interest that the relevant person has or had or, in the case of a relevant person who is a member of a couple, the interest that each member of the couple has or had in the specified asset, or
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(b) if not so satisfied, refuse the application.
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(3) The conditions referred to in subsection (2)(a) are—
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(a) that the person specified in the application has attained the age of 18 years and is—
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(i) the partner of the relevant person,
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(ii) a relative of the relevant person or of the relevant person’s partner, or
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(iii) a son-in-law or daughter-in-law of the relevant person or of the relevant person’s partner,
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(b) that the relevant person declares by way of statutory declaration that, in relation to the specified asset, for a period of 3 years (which period need not be continuous) during the period of 5 years ending with the day on which the relevant person began to receive care services, a substantial part of the working time of—
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(i) the relevant person,
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(ii) the person specified in the application,
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(iii) a person appointed as a family successor in respect of the relevant person,
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(iv) a person who meets the condition under subsection (3)(a) and is specified in any other application made by the relevant person under this section which has not been refused under subsection (2)(b), or
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(v) the relevant person’s partner,
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was regularly and consistently applied to running the family asset,
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(c) that if all or part of the specified asset is a transferred asset—
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(i) it became a transferred asset on its transfer by the relevant person or by the relevant person’s partner to the person specified in the application,
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(ii) it continues to be held as a transferred asset by the person specified in the application, and
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(iii) the person specified in the application undertakes by way of statutory declaration to repay any sums for which he or she may become liable by virtue of section 14J(11),
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(d) that the person specified in the application undertakes by way of statutory declaration that, if appointed as a family successor in respect of the relevant person under subsection (2), a substantial part of that person’s normal working time will regularly and consistently be applied to running the family asset for the period of 6 years beginning on the date of the appointment,
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(e) that, except where the application relates to a relevant business which does not include an interest in land situated within the State—
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(i) in a case where the specified asset is not a transferred asset, the relevant person, the relevant person’s partner and any other owner of the specified asset, or
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(ii) in a case where the specified asset is a transferred asset, the person specified in the application and any other owner of the transferred asset,
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each consent to the creation by virtue of section 14B(1) of a charge in favour of the Executive against the interest in the chargeable land in respect of the specified asset,
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(f) that, where the specified asset is a transferred asset, each owner of the transferred asset consents to the making of the application, and
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(g) that, where the relevant person is a member of a couple—
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(i) except for any application under this section in relation to which a repayment event has occurred or in such other circumstances as may be prescribed, the relevant person’s partner has not made an application under this section, and
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(ii) the relevant person’s partner consents to the making of the application by the relevant person.
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(4) The reference to ‘care services’ in subsection (3)(b) shall be construed as a reference to the type of services referred to in paragraph (a) or (b) that the relevant person first received if before receiving care services the relevant person received—
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(a) transitional care services within the meaning of section 13, or
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(b) services in a nursing home which services would, if they had been provided after the coming into operation of the definition of ‘approved nursing home’, have come within the meaning of the definition of ‘long-term residential care services’.
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(5) For the purposes of subsection (3)(c) it is immaterial whether the transfer was made—
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(a) to the person specified in the application solely, or
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(b) jointly to the person specified in the application and any other person or persons.
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(6) Subject to subsection (7), the Executive may appoint more than one person as a family successor in respect of the relevant person in accordance with this section where it is satisfied that the conditions in subsection (3) have been met in respect of each person specified in an application made under this section.
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(7) The Executive may not—
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(a) appoint more than one person as the family successor in respect of the relevant person in relation to the interest which the relevant person and his or her partner had in a specified asset which is a transferred asset, or
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(b) appoint 2 or more persons jointly as the family successors in respect of the relevant person in relation to the interest which the relevant person and his or her partner have in a specified asset.
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(8) An application under this section shall be made in the specified form.
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(9) In deciding an application under this section—
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(a) the Executive may request information from, and interviews with, the relevant person, the relevant person’s partner, the person specified in the application and any representative (whether appointed under section 21 or otherwise) of the relevant person, and
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(b) the Executive may request, receive and consider records and information relating to the relevant person, the relevant person’s partner and the person specified in the application whether received pursuant to section 45 or otherwise.
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(10) The persons referred to in subsection (9) shall furnish all information and attend any interviews which the Executive may request in accordance with this section.
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(11) The Executive may refuse to consider or further consider an application under this section if a person referred to in subsection (9) fails to provide the Executive with such information as may be requested by the application form or under that subsection within 40 working days from the date of the request.
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(12) Where the Executive refuses under subsection (11) to consider or further consider an application under this section, it shall, not later than 10 working days after the refusal, give the relevant person, the relevant person’s partner and the person specified in the application notice in writing of the decision and the reasons for the decision.
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(13) The Executive shall, not later than 10 working days after granting or refusing an application under this section, give notice in writing to the relevant person, the relevant person’s partner and the person specified in the application of the decision and the reasons for the decision.
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(14) In this section, ‘specified asset’, in relation to an application under this section, means—
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(a) any farm or farms specified in the application,
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(b) any relevant business or businesses specified in the application,
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(c) any farm which is a transferred asset, or any farms which are transferred assets, and which is (or are) specified in the application, and
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(d) any relevant business which is a transferred asset, or any relevant businesses which are transferred assets, and which is (or are) specified in the application.”.
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