The Gazette 1994

GAZETTE

APRIL 1994

The Social We l f a re (Consol idat ion) Ac t 1993: Extension of a Personal Representat ive 's Liabi l i ty

by Raphael King, Solicitor*

Section 280 goes on to provide that a personal representative who contravenes sub-section (1) and who distributes the assets of the deceased person without payment of any sum due to the Minister in respect of payments to which the deceased was not entitled or, alternatively, payments of assistance in excess of the amount to which the deceased was entitled, shall be personally liable to repay to the Minister an amount equal to the amount which the Minister would have received if, in the course of the administration, the said amount had been duly taken into account and repaid to the Minister. It is clear that the objective of this section is to allow the Department of Social Welfare the opportunity to see from the schedule of assets whether any overpayment of assistance took place. There is a presumption in section 280 that the assets owned by the deceased at the date of death belonged to him for the entire period during which he was in receipt of assistance. (Ref. section 280(2).) This presumption applies in the absence of evidence to the contrary. We can see therefore that the 1993 Act introduced radical changes. The situation outlined previously above in relation to the Social Welfare (Consolidation) Act, 1981 applied only to estates where the deceased had been in receipt of a non-contributory old age pension or a blind pension. The situation now is that the personal representative assumes this liability in any situation where the deceased was in receipt of assistance as defined by the Act. "Assistance" under the Act means Unemployment Assistance, Pre- Retirement Allowance, Old Age (non- contributory) Pension, Blind Pension, Widows and Orphans (non- contributory) Pensions, Deserted Wives Allowance, Prisoners Wives Allowance, Lone Parents Allowance,

Most solicitors acting in the administration of estates will be aware of the obligations imposed by previous Social Welfare Acts on the personal representatives of deceased old age pensioners. However, they may be unaware of the changes introduced by the Social Welfare (Consolidation) Act, 1993, which have extended these duties and obligations. The situation which previously obtained related only to deceased persons who had been in receipt of a non-contributory old age pension or a blind pension. Section 174 of the Social Welfare (Consolidation) Act, 1981, as amended by section 33 of the Social Welfare Act, 1991, provided that the personal representative of such a deceased's estate was bound to give three months notice to the Minister for Social Welfare before distribution of the estate and to provide the Department with a copy of the schedule of assets. If the personal representative failed to do so and if there was a refund due, then the personal representative became personally liable to the Minister for the amount due to the Minister from the estate in respect of the overpaid old age pension or blind pension. The Social Welfare Act, 1993 greatly extended the duty imposed on personal representatives administering estates. This Act has been repealed and replaced by The Social Welfare (Consolidation) Act, 1993. Section 280 of the Social Welfare (Consolidation) Act, 1993 provides as follows:- "(1) The personal representative of a person who was at any time in receipt of assistance shall, not less than three months before commencing to distribute the assets of that person:-

Raphael King, Solicitor

(a) inform the Minister, by notice in writing delivered to the Minister, of his intention to distribute the assets, and

provide the Minister with a schedule of the assets of the estate, and

(b) if requested in writing by the Minister within three months of the furnishing of the notice and schedule of assets referred to in paragraph (a), ensure that sufficient assets are retained, to the extent (if any) appropriate, to repay any sum which may be determined to be due to the Minister or the State (as the case may be) in respect of:- (i) payment of assistance to the person at a time when the person was not entitled to received such assistance or (ii) payment of assistance to

the person of an amount in excess of the amount which the person was entitled to receive.

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