On 18 June 2010 the Department of Justice and Law Reform issued a press notice  in relation to the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.  The notice is directed at those carrying on the following businesses:

• Auditor, External Acountant or Tax Advisor.
• Trust or Company Service Provider.
• Private Members’ Club at which gambling activities are carried on.
• Any person trading in goods involving payments, to the person in cash, of a total of at least €15,000.

The notice states as follows:

1 The Act places obligations on a wide range of “designated persons” including those listed above in relation to money laundering and terrorist financing controls.

It is a matter for designated persons to familiarise themselves fully with their obligations under the Act and with the penalties for non-compliance. The Act obliges “designated persons” to:

• identify customers and to undertake Customer Due Diligence in business dealings,

• to report suspicious transactions to An Garda Síochána and the Revenue Commissioners and

• to have procedures in place for the prevention of money laundering and terrorist financing including record keeping, staff training and the maintenance of appropriate controls.

2 Authorisation of Trust or Company Service Providers (TCSPs) -The Act introduces an authorisation requirement to carry on the business of a Trust or Company Service Provider. Applications for authorisation must be made by the 15th July 2010 on the official form*. It will be an offence to carry on the business of a Trust or Company Service Provider without an authorisation from the Minister. An application fee will apply.

Trust or Company Service Provider services are defined as:

a. forming companies or other bodies corporate;

b. acting as a director or secretary of a company under an arrangement with a person other than the company;

c. arranging for another person to act as a director or secretary of a company;

d. acting, or arranging for a person to act, as a partner of a partnership;

e. providing a registered office, business address, correspondence or administrative address or other related services for a body corporate or partnership;

f. acting, or arranging for another person to act, as a trustee of a trust

g. acting, or arranging for another person to act, as a nominee shareholder for a person other than a company whose securities are listed on a regulated market.

This authorisation requirement does not apply to persons whose TCSP activities are already subject to supervision or regulation by the Financial Regulator, a designated accountancy body, the Law Society of Ireland or the General Council of the Bar of Ireland.

3 Private Members’ Clubs and gambling activities – The Act introduces a requirement for persons directing private members’ clubs at which gambling activities are carried on, but only in respect of those gambling activities, to register with the Minister for Justice and Law Reform. Registration must be made by the 15th July 2010 on the official form* (see below for details).

The administration of these functions will be carried out by the Department of Justice and Law Reform’s Anti-Money Laundering Compliance Unit (AMLCU).

*Further information on the Act and application forms for TCSPs/Private Members’ Gaming Clubs are available from our website http://www.antimoneylaundering.gov.ie or by emailing antimoneylaundering@justice.ie

The Nursing Homes Support Scheme Act 2009 (the “Act”) came into operation on 27 October 2009, and certain of its provisions will have significant implications for practitioners involved in drafting Wills for clients.

The Act makes provision for a new system of financial support for those in need of long-term residential care, and the aim of the new legislation is to make nursing homes “accessible, affordable and anxiety free” and replace the former nursing home subvention scheme, which was seen by many as inequitable.

Under the new Scheme, before receiving State support, a financial assessment will be carried out to determine the amount that an individual will need to contribute to their care; that is 80% of their assessable income and 5% of the value of their assets per annum.  Where the assets include land and property, this latter contribution may be deferred and collected from their estate, or if the property is sold or transferred in advance.  This deferral is known under the legislation as Ancillary State Support and consists of a loan advanced by the State.  In exchange, a charge will be registered against the asset.  This will have obvious implications for the beneficiaries under the Wills of those receiving the support in that the assets the subject of the charge will under Section 47 of the Succession Act, in the absence of an clear expression to the contrary in the will,  be  taken subject to the charge. 

In addition, the application for Ancillary State Support, the giving of consent to the charging order and related actions must be carried out by a care representative where the person requiring care does not have full capacity to make decisions concerning the matter, and has not appointed an attorney under an enduring power of attorney or been made a ward of court.  Potential conflicts of interest are likely to arise where the care representatives are the same persons as those due to benefit from the charged asset under the Scheme.

Practitioners should also be aware of the provisions of Section 27 of the Act which inter alia obliges the personal representatives of the estate of a person who was in receipt of Ancillary State Support to send a copy of the IRA to the HSE and holds the personal representatives personally liable for repayment of the loan if they fail to so notify the HSE and retain sufficient funds to pay off the loan.

The introduction of the new Scheme is an additional issue that should be taken into account in advising clients in respect of their Wills and estate planning, and personal representatives in the administration of estates. Any Wills/Probate instruction checklist/questionnaire should ideally take account of this issue.

For the calender year 2010 the CAT Thresholds are:

Group A: €414,799
Group B: 41,481
Group C: 20,740