Powers of Attorney Act, 1996
Acts of the Oireachtas
Source: Acts of the Oireachtas

num: 1
paragraphs: —(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.
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paragraphs: —(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 .
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paragraphs: —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.
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paragraphs: —(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.
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paragraphs: —(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 appointed by the power and subsection (3) applies.
(7) An enduring power in favour of a spouse shall, unless the power provides otherwise, be invalidated or, as the case may be, cease to be in force if subsequently—
(a) the marriage is either annulled under the law of the State or is annulled or dissolved under the law of another state and is, by reason of that annulment or divorce, not or no longer a subsisting valid marriage under the law of the State,
(b) either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having the like effect,
(c) a written agreement to separate is entered into between the spouses, or
(d) a protection order, interim barring order, barring order or safety order is made against the attorney on the application of the donor, or vice versa.
(8) Subsection (6) shall not apply to an enduring power which authorises, or to the extent that it authorises, an attorney to make personal care decisions on behalf of the donor unless the attorney has been convicted of an offence against the person of the donor or has become a person who would be disqualified from acting as attorney by virtue of subsection (4) (b).
(9) An enduring power shall be invalidated or, as the case may be, shall cease to be in force on the exercise by the court of any of its powers under the Lunacy Regulation (Ireland) Act, 1871 , if the court so directs.
(10) No disclaimer, whether by deed or otherwise, of an enduring power which has not been registered under section 10 shall be valid unless and until the attorney gives notice of it to the donor.
(11) In subsection (4) (b) “owner” includes a person managing a nursing home or a director (including a shadow director within the meaning of section 27 of the Companies Act, 1990 ) of, or a shareholder in, a company which owns or manages such a home.
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paragraphs: —(1) An enduring power may confer general authority (as defined in subsection (2)) on the attorney to act on the donor's behalf in relation to all or a specified part of the property and affairs of the donor or may confer on the attorney authority to do specified things on the donor's behalf and the authority may, in either case, be conferred subject to conditions and restrictions.
(2) Where an instrument is expressed to confer general authority on the attorney, it operates to confer, subject to the restriction imposed by subsection (5) and to any conditions or restrictions contained in the instrument, authority to do on behalf of the donor anything which the donor can lawfully do by attorney.
(3) Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may execute or exercise any of the powers or discretions vested in the donor as a tenant for life within the meaning of the Settled Land Act, 1882.
(4) Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may act under the power for the attorney's benefit or that of other persons to the following extent but no further, that is to say, the attorney—
(a) may so act in relation to himself or herself or in relation to any other person if the donor might be expected to provide for his or her or that person's needs respectively; and
(b) may do whatever the donor might be expected to do to meet those needs.
(5) Without prejudice to subsection (4) but subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may, if specific provision to that effect is made in the instrument, dispose of the property of the donor by way of gift to the following extent but no further, that is to say, by making—
(a) gifts of a seasonal nature or at a time, or on an anniversary, of a birth or marriage, to persons (including the attorney) who are related to or connected with the donor, and
(b) gifts to any charity to which the donor made or might be expected to make gifts,
provided that the value of each such gift is not unreasonable having regard to all the circumstances and in particular the extent of the donor's assets.
(6) An enduring power may also confer authority on the attorney to make any specified personal care decision or decisions on the donor's behalf.
(7) (a) Any personal care decision made by an attorney on behalf of a donor shall be made in the donor's best interests.
(b) In deciding what is in a donor's best interests regard shall be had to the following:
(i) so far as ascertainable, the past and present wishes and feelings of the donor and the factors which the donor would consider if he or she were able to do so;
(ii) the need to permit and encourage the donor to participate, or to improve the donor's ability to participate, as fully as possible in any decision affecting the donor;
(iii) so far as it is practicable and appropriate to consult any of the persons mentioned below, their views as to the donor's wishes and feelings and as to what would be in the donor's best interests:
(I) any person named by the donor as someone to be consulted on those matters;
(II) anyone (whether the donor's spouse, a relative, friend or other person) engaged in caring for the donor or interested in the donor's welfare;
(iv) whether the purpose for which any decision is required can be as effectively achieved in a manner less restrictive of the donor's freedom of action.
(c) In the case of any personal care decision made by an attorney it shall be a sufficient compliance with paragraph (a) if the attorney reasonably believes that what he or she decides is in the best interests of the donor.
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paragraphs: —(1) Where an individual creates an enduring power of attorney—
(a) subject to subsection (2) and section 9 , the power shall not come into force until it has been registered under section 10 ; and
(b) the power shall not be revoked by the donor's subsequent mental incapacity.
(2) Where the attorney has made an application for registration of the instrument then, until the application has been determined, the attorney may take action under the power—
(a) to maintain the donor or prevent loss to the donor's estate,
(b) to maintain the attorney or other persons in so far as that is permitted under section 6 (4), or
(c) to make a personal care decision which cannot reasonably be deferred until the application has been determined.
(3) Where the attorney purports to act as provided by subsection (2) then, in favour of a person who deals with the attorney without knowledge that the attorney is acting otherwise than in accordance with that subsection, the transaction between them shall be as valid as if the attorney were acting in accordance therewith.
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paragraphs: —Where the court has reason to believe that the donor of an enduring power may be, or may be becoming, mentally incapable and the court is of the opinion that it is necessary, before the instrument creating the power is registered, to exercise any power with respect to the power of attorney or the attorney appointed to act under it which would become exercisable under section 12 on its registration, the court may on application to it by any interested party exercise that power under this section and may do so whether the attorney has or has not made an application to the court for the registration of the instrument.
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paragraphs: —(1) If the attorney under an enduring power has reason to believe that the donor is or is becoming mentally incapable, the attorney shall, as soon as practicable, make an application to the court for the registration of the instrument creating the power.
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paragraphs: —(1) On an application for registration being made in compliance with section 9 the Registrar of Wards of Court shall, unless subsection (2) applies, register the instrument to which the application relates.
(2) If, in the case of an application for registration—
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paragraphs: —(1) The effect of the registration of an instrument is that—
(a) no revocation of the power by the donor shall be valid unless and until the court confirms the revocation under section 12 (3);
(b) no disclaimer of the power shall be valid except on notice to the donor and with the consent of the court;
(c) the donor may not extend or restrict the scope of the authority conferred by the instrument and no consent orinstruction given by the donor after registration shall, in the case of a consent, confer any right and, in the case of an instruction, impose or confer any obligation or right on or create any liability of the attorney or other persons having notice of the consent or instruction.
(2) Subsection (1) applies for so long as the instrument is registered whether or not the donor is for the time being mentally capable.
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paragraphs: —(1) Where an instrument has been registered the court shall, on application to it by the donor, the attorney or any other interested party, as the case may be, have the functions set out in subsections (2) to (6).
(2) The court may—
(a) determine any question as to the meaning or effect of the instrument;
(b) give directions with respect to—
(i) the management or disposal by the attorney of the property and affairs of the donor;
(ii) the rendering of accounts by the attorney and the production of the records kept by the attorney for that purpose;
(iii) the remuneration or expenses of the attorney, whether or not in default of or in accordance with any provision made by the instrument, including directions for the repayment of excessive, or the payment of additional, remuneration;
(iv) a personal care decision made or to be made by the attorney;
(c) require the attorney to furnish information or produce documents or things in his or her possession as attorney;
(d) give any consent or authorisation to act which the attorney would have to obtain from a mentally capable donor;
(e) authorise the attorney to act for the attorney's own benefit or that of other persons than the donor otherwise than inaccordance with section 6 (4) and (5) (but subject to any conditions or restrictions contained in the instrument);
(f) where appropriate, relieve the attorney wholly or partly from any liability incurred or which may have been incurred on account of a breach of duty as attorney.
(3) On application on notice to the attorney made for the purpose by or on behalf of the donor, the court shall confirm the revocation of the power if satisfied that the donor has done whatever is necessary in law to effect an express revocation of the power and was mentally capable of revoking a power of attorney at the time of the purported revocation.
(4) The court may cancel the registration of an instrument in any of the following circumstances, that is to say—
(a) on confirming the revocation of the power under subsection(3) or consenting to a disclaimer under section 11 (1) (b);
(b) on giving a direction revoking the power on exercising any of its powers under the Lunacy Regulation (Ireland) Act, 1871 ;
(c) on being satisfied that the donor is and is likely to remain mentally capable;
(d) on being satisfied that the power has ceased to be in force by the death or adjudication in bankruptcy of the donor or by virtue of subsection (7) or (9) of section 5 or by the death or mental incapacity of the attorney or by virtue of section 5 (6);
(e) on being satisfied that the power was not a valid and subsisting enduring power when registration was effected;
(f) on being satisfied that, having regard to all the circumstances, the attorney is unsuitable to be the donor's attorney;
(g) on being satisfied that fraud or undue pressure was used to induce the donor to create the power; or
(h) for any other good and sufficient reason.
(5) Where the court cancels the registration of an instrument on being satisfied of the matters specified in paragraph (f) or (g) of subsection (4) it shall by order revoke the power created by the instrument.
(6) On the cancellation of the registration of an instrument under subsection (4) (other than paragraph (c)) the instrument shall be delivered up to be cancelled, unless the court otherwise directs.
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paragraphs: —(1) Subsections (2) and (3) apply where an instrument which did not create a valid enduring power has been registered, whether or not the registration has been cancelled at the time of the act or transaction in question.
(2) An attorney who acts in pursuance of an enduring power which is not or no longer a valid power or which has ceased to be inforce shall not thereby incur any liability (either to the donor or to any other person) unless at the time of acting the attorney knows—
(a) that the instrument did not create a valid enduring power; or
(b) that an event has occurred which, if the instrument had created a valid enduring power, would have invalidated the power or caused it to cease to be in force; or
(c) that the instrument has been cancelled.
(3) Any transaction between the attorney and another person shall, in favour of that person, be as valid as if the power had then been in existence, unless at the time of the transaction that person has knowledge of any of the matters mentioned in subsection (2).
(4) Where the interest of a purchaser depends on whether a transaction between the attorney and another person was valid by virtue of subsection (3), it shall be presumed in favour of the purchaser unless the contrary is shown that the transaction was valid if—
(a) the transaction between that person and the attorney was completed within twelve months of the date on which the instrument was registered; or
(b) that person makes a statutory declaration, before or within three months after the completion of the purchase, that he or she had no reason at the time of the transaction to doubt that the attorney had authority to dispose of the property which was the subject of the transaction.
(5) For the purposes of section 18 (protection of attorney and third persons where action is taken under the power of attorney in ignorance of its having been revoked) in its application to an enduring power the revocation of which by the donor is by virtue of section 11 (1) (a) invalid unless and until confirmed by the court under section 12 (3), knowledge of the confirmation of the revocation is, but knowledge of the unconfirmed revocation is not, knowledge of the revocation of the power.
(6) In this section “purchaser” has the meaning assigned to it by section 18 (6) and “purchase” shall be construed accordingly.
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paragraphs: —(1) An instrument which appoints more than one person to be an attorney may specify that the attorneys are appointed to act either jointly or jointly and severally. In default, the attorneys shall be deemed to have been appointed to act jointly.
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paragraphs: —(1) Where an instrument creating a power of attorney is signed by direction of the donor it shall be signed in the presence of the donor and of another person who shall attest the instrument as witness.
(2) A power of attorney is not required to be made under seal.
(3) This section is without prejudice to any requirement in or under any other enactment as to the witnessing of powers of attorney or as to the execution of instruments by bodies corporate.
num: 16
paragraphs: —(1) A general power of attorney in the form set out in the Third Schedule , or in a form to the like effect expressed to be made under this Act, shall operate to confer on the donee or donees of the power acting in accordance with its terms authority to do on behalf of the donor anything which the donor can lawfully do by attorney.
(2) This section does not apply to functions which the donor has as a trustee or personal representative or as a tenant for life within the meaning of the Settled Land Act, 1882, or as a trustee or other person exercising the powers of a tenant for life under section 60 of that Act.
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paragraphs: —(1) The donee of a power of attorney may—
(a) execute any instrument with his or her own signature and, where sealing is required, with his or her own seal, and
(b) do any other thing in his or her own name,
by the authority of the donor of the power; and any instrument executed or thing done in that manner shall be as effective as if executed or done by the donee with the signature and seal, or, as the case may be, in the name, of the donor of the power.
(2) A person who is authorised under a power of attorney to convey any estate or interest in property in the name or on behalf of a corporation sole or aggregate may either execute the conveyance as provided in subsection (1) or, as donee of the power, execute the conveyance by signing his or her name as acting in the name or on behalf of the corporation in the presence of at least one witness and, in the case of a deed, by affixing his or her own seal, and such execution takes effect and is valid in like manner as if the corporation had executed the conveyance.
(3) Where a corporation aggregate is authorised under a power of attorney to convey any interest in property in the name or on behalf of any other person (including another body corporate), a person appointed for that purpose by the corporation may execute the deed or other instrument in the name of such other person; and where an instrument appears to be executed by a person so appointed then in favour of a purchaser the instrument is deemed to have been executed by that person, unless the contrary is shown.
(4) In this section “purchaser” has the meaning given to it by section 18 (6).
(5) This section applies whenever the power of attorney was created.
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paragraphs: —(1) A donee of a power of attorney who acts in pursuance of the power at a time when it has been revoked shall not, by reason of the revocation, incur any liability (either to the donor or to any other person) if at that time the donee did not know that the power had been revoked.
(2) Where a power of attorney has been revoked and a person, without knowledge of the revocation, deals with the donee of the power, the transaction between them shall, in favour of that person, be as valid as if the power had then been in force.
(3) Where the power is expressed in the instrument creating it to be irrevocable and to be given by way of security then, unless the person dealing with the donee knows that it was not in fact given by way of security, that person shall be entitled to assume that the power is incapable of revocation except by the donor acting with the consent of the donee and shall accordingly be treated for the purposes of subsection (2) as having knowledge of the revocation only if that person knows that it has been revoked in that manner.
(4) Where the interest of a purchaser depends on whether a transaction between the donee of a power of attorney and another person was valid by virtue of subsection (2), it shall be presumed in favour of the purchaser unless the contrary is shown that that person did not at the material time know of the revocation of the power if—
(a) the transaction between that person and the donee was completed within twelve months of the date on which the power came into operation, or
(b) that person makes a statutory declaration, before or within three months after the completion of the purchase, that that person did not at the material time know of the revocation of the power.
(5) Without prejudice to subsection (3), for the purposes of this section knowledge of the revocation of a power of attorney includes knowledge of the occurrence of any event (such as the death of the donor) which has the effect of revoking the power.
(6) In this section “purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who, for valuable consideration, acquires an interest in any property; and includes also an intending purchaser.
(7) This section applies to a power of attorney whenever created but only to acts and transactions after the commencement of this section.
num: 19
paragraphs: —(1) Without prejudice to section 18 , where—
(a) the donee of a power of attorney executes, as transferor, an instrument transferring registered securities, and
(b) the instrument is executed for the purposes of a stock exchange transaction,
it shall be presumed in favour of the transferee unless the contrary is shown that the power had not been revoked at the date of the instrument if a statutory declaration to that effect is made by the donee of the power on or within three months after that date.
(2) In this section “registered securities” and “stock exchange transaction” have the same meanings as in the Stock Transfer Act, 1963 .
num: 20
paragraphs: —(1) Where a power of attorney is expressed to be irrevocable and is given to secure—
(a) a proprietary interest of the donee of the power, or
(b) the performance of an obligation owed to the donee,
then, so long as the donee has that interest or the obligation remains undischarged, the power shall not be revoked—
(i) by the donor without the consent of the donee, or
(ii) by the death, incapacity or bankruptcy of the donor or, if the donor is a body corporate, by its winding-up or dissolution.
(2) A power of attorney given to secure a proprietary interest may be given, and shall be deemed to have been capable always of being given, to the person entitled to the interest and persons deriving title under that person to that interest, and those persons shall be duly constituted donees of the power for all purposes of the power but without prejudice to any right to appoint substitutes given by the power.
(3) This section applies to powers of attorney whenever created.
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paragraphs: —(1) A power of attorney may be proved by production of the original instrument or of a copy which—
(a) is certified by the donor of the power or by a solicitor or member firm (within the meaning of the Stock Exchange Act, 1995 ), or in such other manner as the court approves, to be a true copy of the original, or
(b) where the instrument has been deposited in the Central Office of the High Court pursuant to section 22 is attested in accordance with that section.
(2) It is immaterial for the purposes of subsection (1) how many removes there are between the copy and the original or by what means (which may include facsimile transmission) the copy produced or any intermediate copy was made.
(3) This section is without prejudice to any other method of proof authorised by law.
num: 22
paragraphs: —(1) An instrument creating a power of attorney, its execution being verified by affidavit, statutory declaration or other sufficient evidence, may, with the affidavit or declaration, if any, be deposited in the Central Office of the High Court.
(2) A separate file of instruments so deposited shall be kept and any person may, free of charge during normal office hours, search that file and inspect any instrument so deposited, and an attested copy thereof shall be delivered to that person on request.
(3) A copy of an instrument so deposited may be presented at the Central Office, and may be stamped or marked as an attested copy, and when so stamped or marked shall become and be an attested copy.
(4) An attested copy of an instrument so deposited shall without further proof be sufficient evidence of the contents of the instrument and of the deposit thereof in the Central Office.
(5) Subsections (2)to (4)apply to instruments deposited in the Central Office before the commencement of this section.
(6) This section applies to instruments creating powers of attorney whenever executed.
num: 23
paragraphs: —A purchaser of any estate or interest in land is entitled to have any instrument creating a power of attorney which affects title thereto, or a certified copy or attested copy thereof, furnished by the vendor to the purchaser free of expense.
num: 24
paragraphs: —Every order and regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next subsequent twenty-one days on which the House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
num: 25
paragraphs: —Each enactment specified in the Fourth Schedule is hereby repealed to the extent specified in the third column of that Schedule.