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Mental Capacity Act 2005

Type Public General Act

Publication 2005-04-07

Last updated 2023-02-07

State In force

Department Statute Law Database

Source legislation.gov.uk

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as the Lord Chancellor thinks necessary for the proper discharge of the Public Guardian's functions.

(5) Any functions of the Public Guardian may, to the extent authorised by him, be performed by any of his officers.

Functions of the Public Guardian

58

(1) The Public Guardian has the following functions—

(a) establishing and maintaining a register of lasting powers of attorney,

(b) establishing and maintaining a register of orders appointing deputies,

(d) directing a Court of Protection Visitor to visit—

(i) a donee of a lasting power of attorney,

(ii) a deputy appointed by the court, or

(iii) the person granting the power of attorney or for whom the deputy is appointed (“P”),

and to make a report to the Public Guardian on such matters as he may direct,

(e) receiving security which the court requires a person to give for the discharge of his functions,

(f) receiving reports from donees of lasting powers of attorney and deputies appointed by the court,

(g) reporting to the court on such matters relating to proceedings under this Act as the court requires,

(h) dealing with representations (including complaints) about the way in which a donee of a lasting power of attorney or a deputy appointed by the court is exercising his powers,

(i) publishing, in any manner the Public Guardian thinks appropriate, any information he thinks appropriate about the discharge of his functions.

(2) The functions conferred by subsection (1)(c) and (h) may be discharged in co-operation with any other person who has functions in relation to the care or treatment of P.

(2A) The Public Guardian also has the following functions—

(a) establishing and maintaining a register of guardianship orders,

(b) supervising guardians,

(d) receiving reports from guardians,

(e) reporting to the court on such matters relating to proceedings under the Guardianship (Missing Persons) Act 2017 as the court requires,

(f) dealing with representations (including complaints) about the way in which a guardian is exercising the guardian’s functions, and

(g) publishing, in any manner the Public Guardian thinks appropriate, information about the exercise of his or her functions in connection with guardians and guardianship orders.

(3) The Lord Chancellor may by regulations make provision—

(a) conferring on the Public Guardian other functions in connection with this Act or the Guardianship (Missing Persons) Act 2017 ;

(b) in connection with the discharge by the Public Guardian of his functions.

(4) Regulations made under subsection (3)(b) may in particular make provision as to—

(a) the giving of security by deputies appointed by the court or guardians and the enforcement and discharge of security so given;

(b) the fees which may be charged by the Public Guardian;

(d) exemptions from and reductions in such fees;

(e) remission of such fees in whole or in part;

(f) the making of reports to the Public Guardian by deputies appointed by the court and others who are directed by the court to carry out any transaction for a person who lacks capacity.

(g) the making of reports to the Public Guardian by guardians.

(5) For the purpose of enabling him to carry out his functions in relation to lasting powers of attorney or deputies , the Public Guardian may, at all reasonable times, examine and take copies of—

(a) any health record,

(b) any record of, or held by, a local authority and compiled in connection with a social services function, and

(c) any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) , Chapter 2 of Part 1 of the Health and Social Care Act 2008 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016,

so far as the record relates to P.

(6) The Public Guardian may also for that purpose interview P in private.

(7) In this section “guardian” and “guardianship order” have the same meaning as in the Guardianship (Missing Persons) Act 2017.

Public Guardian Board

59

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annual report

60

(1) The Public Guardian must make an annual report to the Lord Chancellor about the discharge of his functions.

(2) The Lord Chancellor must, within one month of receiving the report, lay a copy of it before Parliament.

Court of Protection Visitors

61

(1) A Court of Protection Visitor is a person who is appointed by the Lord Chancellor to—

(a) a panel of Special Visitors, or

(b) a panel of General Visitors.

(2) A person is not qualified to be a Special Visitor unless he—

(a) is a registered medical practitioner or appears to the Lord Chancellor to have other suitable qualifications or training, and

(b) appears to the Lord Chancellor to have special knowledge of and experience in cases of impairment of or disturbance in the functioning of the mind or brain.

(3) A General Visitor need not have a medical qualification.

(4) A Court of Protection Visitor—

(a) may be appointed for such term and subject to such conditions, and

(b) may be paid such remuneration and allowances,

as the Lord Chancellor may determine.

(5) For the purpose of carrying out his functions under this Act in relation to a person who lacks capacity (“P”), a Court of Protection Visitor may, at all reasonable times, examine and take copies of—

(a) any health record,

(b) any record of, or held by, a local authority and compiled in connection with a social services function, and

(c) any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) , Chapter 2 of Part 1 of the Health and Social Care Act 2008 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016,

so far as the record relates to P.

(6) A Court of Protection Visitor may also for that purpose interview P in private.

Part 3 — Miscellaneous and general

Declaratory provision

Scope of the Act

62

For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide).

Private international law

International protection of adults

63

Schedule 3—

(a) gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2000 (Cm. 5881) (in so far as this Act does not otherwise do so), and

(b) makes related provision as to the private international law of England and Wales.

General

Interpretation

64

(1) In this Act—

“the 1985 Act” means the Enduring Powers of Attorney Act 1985 (c. 29),

“advance decision” has the meaning given in section 24(1),

“authorisation under Schedule A1”means either— a standard authorisation under that Schedule, oran urgent authorisation under that Schedule.

“the court” means the Court of Protection established by section 45,

“Court of Protection Rules” has the meaning given in section 51(1),

“Court of Protection Visitor” has the meaning given in section 61,

“deputy” has the meaning given in section 16(2)(b),

“enactment” includes a provision of subordinate legislation (within the meaning of the Interpretation Act 1978 (c. 30)),

“health record” has the same meaning as in the Data Protection Act 2018 (see section 205 of that Act);

“the Human Rights Convention” has the same meaning as “the Convention” in the Human Rights Act 1998 (c. 42),

“independent mental capacity advocate” has the meaning given in section 35(1),

“lasting power of attorney” has the meaning given in section 9,

“life-sustaining treatment” has the meaning given in section 4(10),

“local authority” , except in section 35(6A)(a) and Schedule A1, means—the council of a county in England in which there are no district councils,the council of a district in England,the council of a county or county borough in Wales,the council of a London borough,the Common Council of the City of London, orthe Council of the Isles of Scilly,

“Mental Health Act” means the Mental Health Act 1983 (c. 20),

“prescribed”, in relation to regulations made under this Act, means prescribed by those regulations,

“property” includes any thing in action and any interest in real or personal property,

“public authority” has the same meaning as in the Human Rights Act 1998,

“Public Guardian” has the meaning given in section 57,

“purchaser” and “purchase” have the meaning given in section 205(1) of the Law of Property Act 1925 (c. 20),

“social services function”—in relation to England has the meaning given in section 1A of the Local Authority Social Services Act 1970 (c. 42),in relation to Wales, has the meaning given in section 143 of the Social Services and Well-being (Wales) Act 2014 (anaw 4).

“treatment” includes a diagnostic or other procedure,

“trust corporation” has the meaning given in section 68(1) of the Trustee Act 1925 (c. 19), and

“will” includes codicil.

(2) In this Act, references to making decisions, in relation to a donee of a lasting power of attorney or a deputy appointed by the court, include, where appropriate, acting on decisions made.

(3) In this Act, references to the bankruptcy of an individual include a case where a bankruptcy restrictions order under the Insolvency Act 1986 (c. 45) has effect in respect of him.

(3A) In this Act references to a debt relief order (under Part 7A of the Insolvency Act 1986) being made in relation to an individual include a case where a debt relief restrictions order under the Insolvency Act 1986 has effect in respect of him.

(4) “Bankruptcy restrictions order” includes an interim bankruptcy restrictions order.

(4A) “Debt relief restrictions order” includes an interim debt relief restrictions order.

(5) In this Act, references to deprivation of a person's liberty have the same meaning as in Article 5(1) of the Human Rights Convention.

(6) For the purposes of such references, it does not matter whether a person is deprived of his liberty by a public authority or not.

Rules, regulations and orders

65

(1) Any power to make rules, regulations or orders under this Act , other than the power in section 21—

(a) is exercisable by statutory instrument;

(b) includes power to make supplementary, incidental, consequential, transitional or saving provision;

(2) Any statutory instrument containing rules, regulations or orders made by the Lord Chancellor or the Secretary of State under this Act, other than—

(a) regulations under section 34 (loss of capacity during research project),

(b) regulations under section 41 (adjusting role of independent mental capacity advocacy service),

(d) an order of the kind mentioned in section 67(6) (consequential amendments of primary legislation), or

(e) an order under section 68 (commencement),

is subject to annulment in pursuance of a resolution of either House of Parliament.

(2A) Any statutory instrument containing regulations made by the Welsh Ministers under Schedule AA1 is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

(3) A statutory instrument containing an Order in Council under paragraph 31 of Schedule 3 (provision to give further effect to Hague Convention) is subject to annulment in pursuance of a resolution of either House of Parliament.

(4) A statutory instrument containing regulations made by the Secretary of State under section 34 or 41 or by the Lord Chancellor under paragraph 32(1)(b) of Schedule 3 may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(4A) Subsection (2) does not apply to a statutory instrument containing regulations made by the Secretary of State under Schedule A1.

(4B) If such a statutory instrument contains regulations under paragraph 42(2)(b), 129, 162 or 164 of Schedule A1 (whether or not it also contains other regulations), the instrument may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(4C) Subject to that, such a statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament.

(5) An order under section 21—

(a) may include supplementary, incidental, consequential, transitional or saving provision;

(b) may make different provision for different cases;

(c) is to be made in the form of a statutory instrument to which the Statutory Instruments Act 1946 applies as if the order were made by a Minister of the Crown; and

(d) is subject to annulment in pursuance of a resolution of either House of Parliament.

Existing receivers and enduring powers of attorney etc.

66

(1) The following provisions cease to have effect—

(a) Part 7 of the Mental Health Act,

(b) the Enduring Powers of Attorney Act 1985 (c. 29).

(2) No enduring power of attorney within the meaning of the 1985 Act is to be created after the commencement of subsection (1)(b).

(3) Schedule 4 has effect in place of the 1985 Act in relation to any enduring power of attorney created before the commencement of subsection (1)(b).

(4) Schedule 5 contains transitional provisions and savings in relation to Part 7 of the Mental Health Act and the 1985 Act.

Minor and consequential amendments and repeals

67

(1) Schedule 6 contains minor and consequential amendments.

(2) Schedule 7 contains repeals.

(3) The Lord Chancellor may by order make supplementary, incidental, consequential, transitional or saving provision for the purposes of, in consequence of, or for giving full effect to a provision of this Act.

(4) An order under subsection (3) may, in particular—

(a) provide for a provision of this Act which comes into force before another provision of this Act has come into force to have effect, until the other provision has come into force, with specified modifications;

(b) amend, repeal or revoke an enactment, other than one contained in an Act or Measure passed in a Session after the one in which this Act is passed.

(5) The amendments that may be made under subsection (4)(b) are in addition to those made by or under any other provision of this Act.

(6) An order under subsection (3) which amends or repeals a provision of an Act or Measure may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

Commencement and extent

68

(1) This Act, other than sections 30 to 41, comes into force in accordance with provision made by order by the Lord Chancellor.

(2) Sections 30 to 41 come into force in accordance with provision made by order by—

(a) the Secretary of State, in relation to England, and

(b) the National Assembly for Wales, in relation to Wales.

(3) An order under this section may appoint different days for different provisions and different purposes.

(4) Subject to subsections (5) and (6), this Act extends to England and Wales only.

(5) The following provisions extend to the United Kingdom—

(a) paragraph 16(1) of Schedule 1 (evidence of instruments and of registration of lasting powers of attorney),

(b) paragraph 15(3) of Schedule 4 (evidence of instruments and of registration of enduring powers of attorney).

(6) Subject to any provision made in Schedule 6, the amendments and repeals made by Schedules 6 and 7 have the same extent as the enactments to which they relate.

Short title

69

This Act may be cited as the Mental Capacity Act 2005.

SCHEDULE 1

Part 1 — Making instruments

General requirements as to making instruments

1

(1) An instrument is not made in accordance with this Schedule unless—

(a) it is in the prescribed form,

(b) it complies with paragraph 2, and

(2) Regulations may make different provision according to whether—

(a) the instrument relates to personal welfare or to property and affairs (or to both);

(b) only one or more than one donee is to be appointed (and if more than one, whether jointly or jointly and severally).

(3) In this Schedule—

(a) “prescribed” means prescribed by regulations, and

(b) “regulations” means regulations made for the purposes of this Schedule by the Lord Chancellor.

Requirements as to content of instruments

2

(1) The instrument must include—

(a) the prescribed information about the purpose of the instrument and the effect of a lasting power of attorney,

(b) a statement by the donor to the effect that he—

(i) has read the prescribed information or a prescribed part of it (or has had it read to him), and

(ii) intends the authority conferred under the instrument to include authority to make decisions on his behalf in circumstances where he no longer has capacity,

(i) naming a person or persons whom the donor wishes to be notified of any application for the registration of the instrument, or

(ii) stating that there are no persons whom he wishes to be notified of any such application,

(d) a statement by the donee (or, if more than one, each of them) to the effect that he—

(i) has read the prescribed information or a prescribed part of it (or has had it read to him), and

(ii) understands the duties imposed on a donee of a lasting power of attorney under sections 1 (the principles) and 4 (best interests), and

(e) a certificate by a person of a prescribed description that, in his opinion, at the time when the donor executes the instrument—

(i) the donor understands the purpose of the instrument and the scope of the authority conferred under it,

(ii) no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and

(iii) there is nothing else which would prevent a lasting power of attorney from being created by the instrument.

(2) Regulations may—

(a) prescribe a maximum number of named persons;

(b) provide that, where the instrument includes a statement under sub-paragraph (1)(c)(ii), two persons of a prescribed description must each give a certificate under sub-paragraph (1)(e).

(3) The persons who may be named persons do not include a person who is appointed as donee under the instrument.

(4) In this Schedule, “named person” means a person named under sub-paragraph (1)(c).

(5) A certificate under sub-paragraph (1)(e)—

(a) must be made in the prescribed form, and

(b) must include any prescribed information.

(6) The certificate may not be given by a person appointed as donee under the instrument.

Failure to comply with prescribed form

3

(1) If an instrument differs in an immaterial respect in form or mode of expression from the prescribed form, it is to be treated by the Public Guardian as sufficient in point of form and expression.

(2) The court may declare that an instrument which is not in the prescribed form is to be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney.

Part 2 — Registration

Applications and procedure for registration

4

(1) An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney—

(a) must be made in the prescribed form, and

(b) must include any prescribed information.

(2) The application may be made—

(a) by the donor,

(b) by the donee or donees, or

(c) if the instrument appoints two or more donees to act jointly and severally in respect of any matter, by any of the donees.

(3) The application must be accompanied by—

(a) the instrument, and

(b) any fee provided for under section 58(4)(b).

(4) A person who, in an application for registration, makes a statement which he knows to be false in a material particular is guilty of an offence and is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

5

Subject to paragraphs 11 to 14, the Public Guardian must register the instrument as a lasting power of attorney at the end of the prescribed period.

Notification requirements

6

(1) A donor about to make an application under paragraph 4(2)(a) must notify any named persons that he is about to do so.

(2) The donee (or donees) about to make an application under paragraph 4(2)(b) or (c) must notify any named persons that he is (or they are) about to do so.

7

As soon as is practicable after receiving an application by the donor under paragraph 4(2)(a), the Public Guardian must notify the donee (or donees) that the application has been received.

8

(1) As soon as is practicable after receiving an application by a donee (or donees) under paragraph 4(2)(b), the Public Guardian must notify the donor that the application has been received.

(2) As soon as is practicable after receiving an application by a donee under paragraph 4(2)(c), the Public Guardian must notify—

(a) the donor, and

(b) the donee or donees who did not join in making the application,

that the application has been received.

9

(1) A notice under paragraph 6 must be made in the prescribed form.

(2) A notice under paragraph 6, 7 or 8 must include such information, if any, as may be prescribed.

Power to dispense with notification requirements

10

The court may—

(a) on the application of the donor, dispense with the requirement to notify under paragraph 6(1), or

(b) on the application of the donee or donees concerned, dispense with the requirement to notify under paragraph 6(2),

if satisfied that no useful purpose would be served by giving the notice.

Instrument not made properly or containing ineffective provision

11

(1) If it appears to the Public Guardian that an instrument accompanying an application under paragraph 4 is not made in accordance with this Schedule, he must not register the instrument unless the court directs him to do so.

(2) Sub-paragraph (3) applies if it appears to the Public Guardian that the instrument contains a provision which—

(a) would be ineffective as part of a lasting power of attorney, or

(b) would prevent the instrument from operating as a valid lasting power of attorney.

(3) The Public Guardian—

(a) must apply to the court for it to determine the matter under section 23(1), and

(b) pending the determination by the court, must not register the instrument.

(4) Sub-paragraph (5) applies if the court determines under section 23(1) (whether or not on an application by the Public Guardian) that the instrument contains a provision which—

(a) would be ineffective as part of a lasting power of attorney, or

(b) would prevent the instrument from operating as a valid lasting power of attorney.

(5) The court must—

(a) notify the Public Guardian that it has severed the provision, or

(b) direct him not to register the instrument.

(6) Where the court notifies the Public Guardian that it has severed a provision, he must register the instrument with a note to that effect attached to it.

Deputy already appointed

12

(1) Sub-paragraph (2) applies if it appears to the Public Guardian that—

(a) there is a deputy appointed by the court for the donor, and

(b) the powers conferred on the deputy would, if the instrument were registered, to any extent conflict with the powers conferred on the attorney.

(2) The Public Guardian must not register the instrument unless the court directs him to do so.

Objection by donee or named person

13

(1) Sub-paragraph (2) applies if a donee or a named person—

(a) receives a notice under paragraph 6, 7 or 8 of an application for the registration of an instrument, and

(b) before the end of the prescribed period, gives notice to the Public Guardian of an objection to the registration on the ground that an event mentioned in section 13(3) or (6)(a) to (d) has occurred which has revoked the instrument.

(2) If the Public Guardian is satisfied that the ground for making the objection is established, he must not register the instrument unless the court, on the application of the person applying for the registration—

(a) is satisfied that the ground is not established, and

(b) directs the Public Guardian to register the instrument.

(3) Sub-paragraph (4) applies if a donee or a named person—

(a) receives a notice under paragraph 6, 7 or 8 of an application for the registration of an instrument, and

(b) before the end of the prescribed period—

(i) makes an application to the court objecting to the registration on a prescribed ground, and

(ii) notifies the Public Guardian of the application.

(4) The Public Guardian must not register the instrument unless the court directs him to do so.

Objection by donor

14

(1) This paragraph applies if the donor—

(a) receives a notice under paragraph 8 of an application for the registration of an instrument, and

(b) before the end of the prescribed period, gives notice to the Public Guardian of an objection to the registration.

(2) The Public Guardian must not register the instrument unless the court, on the application of the donee or, if more than one, any of them—

(a) is satisfied that the donor lacks capacity to object to the registration, and

(b) directs the Public Guardian to register the instrument.

Notification of registration

15

Where an instrument is registered under this Schedule, the Public Guardian must give notice of the fact in the prescribed form to—

(a) the donor, and

(b) the donee or, if more than one, each of them.

Evidence of registration

16

(1) A document purporting to be an office copy of an instrument registered under this Schedule is, in any part of the United Kingdom, evidence of—

(a) the contents of the instrument, and

(b) the fact that it has been registered.

(2) Sub-paragraph (1) is without prejudice to—

(a) section 3 of the Powers of Attorney Act 1971 (c. 27) (proof by certified copy), and

(b) any other method of proof authorised by law.

Part 3 — Cancellation of registration and notification of severance

17

(1) The Public Guardian must cancel the registration of an instrument as a lasting power of attorney on being satisfied that the power has been revoked—

(a) as a result of the donor's bankruptcyor a debt relief order (under Part 7A of the Insolvency Act 1986) having been made in respect of the donor, or

(b) on the occurrence of an event mentioned in section 13(6)(a) to (d).

(2) If the Public Guardian cancels the registration of an instrument he must notify—

(a) the donor, and

(b) the donee or, if more than one, each of them.

18

The court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if it—

(a) determines under section 22(2)(a) that a requirement for creating the power was not met,

(b) determines under section 22(2)(b) that the power has been revoked or has otherwise come to an end, or

19

(1) Sub-paragraph (2) applies if the court determines under section 23(1) that a lasting power of attorney contains a provision which—

(a) is ineffective as part of a lasting power of attorney, or

(b) prevents the instrument from operating as a valid lasting power of attorney.

(2) The court must—

(a) notify the Public Guardian that it has severed the provision, or

(b) direct him to cancel the registration of the instrument as a lasting power of attorney.

20

On the cancellation of the registration of an instrument, the instrument and any office copies of it must be delivered up to the Public Guardian to be cancelled.

Part 4 — Records of alterations in registered powers

Partial revocation or suspension of power as a result of bankruptcy

21

If in the case of a registered instrument it appears to the Public Guardian that under section 13 a lasting power of attorney is revoked, or suspended, in relation to the donor's property and affairs (but not in relation to other matters), the Public Guardian must attach to the instrument a note to that effect.

Termination of appointment of donee which does not revoke power

22

If in the case of a registered instrument it appears to the Public Guardian that an event has occurred—

(a) which has terminated the appointment of the donee, but

(b) which has not revoked the instrument,

the Public Guardian must attach to the instrument a note to that effect.

Replacement of donee

23

If in the case of a registered instrument it appears to the Public Guardian that the donee has been replaced under the terms of the instrument the Public Guardian must attach to the instrument a note to that effect.

Severance of ineffective provisions

24

If in the case of a registered instrument the court notifies the Public Guardian under paragraph 19(2)(a) that it has severed a provision of the instrument, the Public Guardian must attach to it a note to that effect.

Notification of alterations

25

If the Public Guardian attaches a note to an instrument under paragraph 21, 22, 23 or 24 he must give notice of the note to the donee or donees of the power (or, as the case may be, to the other donee or donees of the power).

SCHEDULE 2

Wills: general

1

Paragraphs 2 to 4 apply in relation to the execution of a will, by virtue of section 18, on behalf of P.

Provision that may be made in will

2

The will may make any provision (whether by disposing of property or exercising a power or otherwise) which could be made by a will executed by P if he had capacity to make it.

Wills: requirements relating to execution

3

(1) Sub-paragraph (2) applies if under section 16 the court makes an order or gives directions requiring or authorising a person (“the authorised person”) to execute a will on behalf of P.

(2) Any will executed in pursuance of the order or direction—

(a) must state that it is signed by P acting by the authorised person,

(b) must be signed by the authorised person with the name of P and his own name, in the presence of two or more witnesses present at the same time,

(d) must be sealed with the official seal of the court.

Wills: effect of execution

4

(1) This paragraph applies where a will is executed in accordance with paragraph 3.

(2) The Wills Act 1837 (c. 26) has effect in relation to the will as if it were signed by P by his own hand, except that—

(a) section 9 of the 1837 Act (requirements as to signing and attestation) does not apply, and

(b) in the subsequent provisions of the 1837 Act any reference to execution in the manner required by the previous provisions is to be read as a reference to execution in accordance with paragraph 3.

(3) The will has the same effect for all purposes as if—

(a) P had had the capacity to make a valid will, and

(b) the will had been executed by him in the manner required by the 1837 Act.

(4) But sub-paragraph (3) does not have effect in relation to the will—

(a) in so far as it disposes of immovable property outside England and Wales, or

(b) in so far as it relates to any other property or matter if, when the will is executed—

(i) P is domiciled outside England and Wales, and

(ii) the condition in sub-paragraph (5) is met.

(5) The condition is that, under the law of P's domicile, any question of his testamentary capacity would fall to be determined in accordance with the law of a place outside England and Wales.

Vesting orders ancillary to settlement etc.

5

(1) If provision is made by virtue of section 18 for—

(a) the settlement of any property of P, or

(b) the exercise of a power vested in him of appointing trustees or retiring from a trust,

the court may also make as respects the property settled or the trust property such consequential vesting or other orders as the case may require.

(2) The power under sub-paragraph (1) includes, in the case of the exercise of such a power, any order which could have been made in such a case under Part 4 of the Trustee Act 1925 (c. 19).

Variation of settlements

6

(1) If a settlement has been made by virtue of section 18, the court may by order vary or revoke the settlement if—

(a) the settlement makes provision for its variation or revocation,

(b) the court is satisfied that a material fact was not disclosed when the settlement was made, or

(2) Any such order may give such consequential directions as the court thinks fit.

Vesting of stock in curator appointed outside England and Wales

7

(1) Sub-paragraph (2) applies if the court is satisfied—

(a) that under the law prevailing in a place outside England and Wales a person (“M”) has been appointed to exercise powers in respect of the property or affairs of P on the ground (however formulated) that P lacks capacity to make decisions with respect to the management and administration of his property and affairs, and

(b) that, having regard to the nature of the appointment and to the circumstances of the case, it is expedient that the court should exercise its powers under this paragraph.

(2) The court may direct—

(a) any stocks standing in the name of P, or

(b) the right to receive dividends from the stocks,

to be transferred into M's name or otherwise dealt with as required by M, and may give such directions as the court thinks fit for dealing with accrued dividends from the stocks.

(3) “Stocks” includes—

(a) shares, and

(b) any funds, annuity or security transferable in the books kept by any body corporate or unincorporated company or society or by an instrument of transfer either alone or accompanied by other formalities,

and “dividends” is to be construed accordingly.

Preservation of interests in property disposed of on behalf of person lacking capacity

8

(1) Sub-paragraphs (2) and (3) apply if—

(a) P's property has been disposed of by virtue of section 18,

(b) under P's will or intestacy, or by a gift perfected or nomination taking effect on his death, any other person would have taken an interest in the property but for the disposal, and

(2) The person takes the same interest, if and so far as circumstances allow, in the property representing the property disposed of.

(3) If the property disposed of was real property, any property representing it is to be treated, so long as it remains part of P's estate, as if it were real property.

(4) The court may direct that, on a disposal of P's property—

(a) which is made by virtue of section 18, and

(b) which would apart from this paragraph result in the conversion of personal property into real property,

property representing the property disposed of is to be treated, so long as it remains P's property or forms part of P's estate, as if it were personal property.

(5) References in sub-paragraphs (1) to (4) to the disposal of property are to—

(a) the sale, exchange, charging of or other dealing (otherwise than by will) with property other than money;

(b) the removal of property from one place to another;

(d) the transfer of money from one account to another;

and references to property representing property disposed of are to be construed accordingly and as including the result of successive disposals.

(6) The court may give such directions as appear to it necessary or expedient for the purpose of facilitating the operation of sub-paragraphs (1) to (3), including the carrying of money to a separate account and the transfer of property other than money.

9

(1) Sub-paragraph (2) applies if the court has ordered or directed the expenditure of money—

(a) for carrying out permanent improvements on any of P's property, or

(b) otherwise for the permanent benefit of any of P's property.

(2) The court may order that—

(a) the whole of the money expended or to be expended, or

(b) any part of it,

is to be a charge on the property either without interest or with interest at a specified rate.

(3) An order under sub-paragraph (2) may provide for excluding or restricting the operation of paragraph 8(1) to (3).

(4) A charge under sub-paragraph (2) may be made in favour of such person as may be just and, in particular, where the money charged is paid out of P's general estate, may be made in favour of a person as trustee for P.

(5) No charge under sub-paragraph (2) may confer any right of sale or foreclosure during P's lifetime.

Powers as patron of benefice

10

(1) Any functions which P has as patron of a benefice may be discharged only by a person (“R”) appointed by the court.

(2) R must be an individual capable of appointment under section 8(1)(b) of the 1986 Measure (which provides for an individual able to make a declaration of communicant status, a clerk in Holy Orders, etc. to be appointed to discharge a registered patron's functions).

(3) The 1986 Measure applies to R as it applies to an individual appointed by the registered patron of the benefice under section 8(1)(b) or (3) of that Measure to discharge his functions as patron.

(4) “The 1986 Measure” means the Patronage (Benefices) Measure 1986 (No. 3).

SCHEDULE 3

Part 1 — Preliminary

Introduction

1

This Part applies for the purposes of this Schedule.

The Convention

2

(1) “Convention” means the Convention referred to in section 63.

(2) “Convention country” means a country in which the Convention is in force.

(3) A reference to an Article or Chapter is to an Article or Chapter of the Convention.

(4) An expression which appears in this Schedule and in the Convention is to be construed in accordance with the Convention.

Countries, territories and nationals

3

(1) “Country” includes a territory which has its own system of law.

(2) Where a country has more than one territory with its own system of law, a reference to the country, in relation to one of its nationals, is to the territory with which the national has the closer, or the closest, connection.

Adults with incapacity

4

(1) “Adult” means subject to sub-paragraph (2) a person who—

(a) as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests, and

(b) has reached 16.

(2) But “adult” does not include a child to whom ... the following applies—

(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children that was signed at The Hague on 19 October 1996;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Protective measures

5

(1) “Protective measure” means a measure directed to the protection of the person or property of an adult; and it may deal in particular with any of the following—

(a) the determination of incapacity and the institution of a protective regime,

(b) placing the adult under the protection of an appropriate authority,

(d) the designation and functions of a person having charge of the adult's person or property, or representing or otherwise helping him,

(e) placing the adult in a place where protection can be provided,

(f) administering, conserving or disposing of the adult's property,

(g) authorising a specific intervention for the protection of the person or property of the adult.

(2) Where a measure of like effect to a protective measure has been taken in relation to a person before he reaches 16, this Schedule applies to the measure in so far as it has effect in relation to him once he has reached 16.

Central Authority

6

(1) Any function under the Convention of a Central Authority is exercisable in England and Wales by the Lord Chancellor.

(2) A communication may be sent to the Central Authority in relation to England and Wales by sending it to the Lord Chancellor.

Part 2 — Jurisdiction of competent authority

Scope of jurisdiction

7

(1) The court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to—

(a) an adult habitually resident in England and Wales,

(b) an adult's property in England and Wales,

(d) an adult present in England and Wales, if a protective measure which is temporary and limited in its effect to England and Wales is proposed in relation to him.

(2) An adult present in England and Wales is to be treated for the purposes of this paragraph as habitually resident there if—

(a) his habitual residence cannot be ascertained,

(b) he is a refugee, or

8

(1) The court may also exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to an adult if sub-paragraph (2) or (3) applies in relation to him.

(2) This sub-paragraph applies in relation to an adult if—

(a) he is a British citizen,

(b) he has a closer connection with England and Wales than with Scotland or Northern Ireland, and

(3) This sub-paragraph applies in relation to an adult if the Lord Chancellor, having consulted such persons as he considers appropriate, agrees to a request under Article 8 in relation to the adult.

Exercise of jurisdiction

9

(1) This paragraph applies where jurisdiction is exercisable under this Schedule in connection with a matter which involves a Convention country other than England and Wales.

(2) Any Article on which the jurisdiction is based applies in relation to the matter in so far as it involves the other country (and the court must, accordingly, comply with any duty conferred on it as a result).

(3) Article 12 also applies, so far as its provisions allow, in relation to the matter in so far as it involves the other country.

10

A reference in this Schedule to the exercise of jurisdiction under this Schedule is to the exercise of functions under this Act as a result of this Part of this Schedule.

Part 3 — Applicable law

Applicable law

11

In exercising jurisdiction under this Schedule, the court may, if it thinks that the matter has a substantial connection with a country other than England and Wales, apply the law of that other country.

12

Where a protective measure is taken in one country but implemented in another, the conditions of implementation are governed by the law of the other country.

Lasting powers of attorney, etc.

13

(1) If the donor of a lasting power is habitually resident in England and Wales at the time of granting the power, the law applicable to the existence, extent, modification or extinction of the power is—

(a) the law of England and Wales, or

(b) if he specifies in writing the law of a connected country for the purpose, that law.

(2) If he is habitually resident in another country at that time, but England and Wales is a connected country, the law applicable in that respect is—

(a) the law of the other country, or

(b) if he specifies in writing the law of England and Wales for the purpose, that law.

(3) A country is connected, in relation to the donor, if it is a country—

(a) of which he is a national,

(b) in which he was habitually resident, or

(4) Where this paragraph applies as a result of sub-paragraph (3)(c), it applies only in relation to the property which the donor has in the connected country.

(5) The law applicable to the manner of the exercise of a lasting power is the law of the country where it is exercised.

(6) In this Part of this Schedule, “lasting power” means—

(a) a lasting power of attorney (see section 9),

(b) an enduring power of attorney within the meaning of Schedule 4, or

14

(1) Where a lasting power is not exercised in a manner sufficient to guarantee the protection of the person or property of the donor, the court, in exercising jurisdiction under this Schedule, may disapply or modify the power.

(2) Where, in accordance with this Part of this Schedule, the law applicable to the power is, in one or more respects, that of a country other than England and Wales, the court must, so far as possible, have regard to the law of the other country in that respect (or those respects).

15

Regulations may provide for Schedule 1 (lasting powers of attorney: formalities) to apply with modifications in relation to a lasting power which comes within paragraph 13(6)(c) above.

Protection of third parties

16

(1) This paragraph applies where a person (a “representative”) in purported exercise of an authority to act on behalf of an adult enters into a transaction with a third party.

(2) The validity of the transaction may not be questioned in proceedings, nor may the third party be held liable, merely because—

(a) where the representative and third party are in England and Wales when entering into the transaction, sub-paragraph (3) applies;

(b) where they are in another country at that time, sub-paragraph (4) applies.

(3) This sub-paragraph applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Schedule, the law of a country other than England and Wales, and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under the law of that other country.

(4) This sub-paragraph applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Part of this Schedule, the law of England and Wales, and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under that law.

(5) This paragraph does not apply if the third party knew or ought to have known that the applicable law was—

(a) in a case within sub-paragraph (3), the law of the other country;

(b) in a case within sub-paragraph (4), the law of England and Wales.

Mandatory rules

17

Where the court is entitled to exercise jurisdiction under this Schedule, the mandatory provisions of the law of England and Wales apply, regardless of any system of law which would otherwise apply in relation to the matter.

Public policy

18

Nothing in this Part of this Schedule requires or enables the application in England and Wales of a provision of the law of another country if its application would be manifestly contrary to public policy.

Part 4 — Recognition and enforcement

Recognition

19

(1) A protective measure taken in relation to an adult under the law of a country other than England and Wales is to be recognised in England and Wales if it was taken on the ground that the adult is habitually resident in the other country.

(2) A protective measure taken in relation to an adult under the law of a Convention country other than England and Wales is to be recognised in England and Wales if it was taken on a ground mentioned in Chapter 2 (jurisdiction).

(3) But the court may disapply this paragraph in relation to a measure if it thinks that—

(a) the case in which the measure was taken was not urgent,

(b) the adult was not given an opportunity to be heard, and

(4) It may also disapply this paragraph in relation to a measure if it thinks that—

(a) recognition of the measure would be manifestly contrary to public policy,

(b) the measure would be inconsistent with a mandatory provision of the law of England and Wales, or

(c) the measure is inconsistent with one subsequently taken, or recognised, in England and Wales in relation to the adult.

(5) And the court may disapply this paragraph in relation to a measure taken under the law of a Convention country in a matter to which Article 33 applies, if the court thinks that that Article has not been complied with in connection with that matter.

20

(1) An interested person may apply to the court for a declaration as to whether a protective measure taken under the law of a country other than England and Wales is to be recognised in England and Wales.

(2) No permission is required for an application to the court under this paragraph.

21

For the purposes of paragraphs 19 and 20, any finding of fact relied on when the measure was taken is conclusive.

Enforcement

22

(1) An interested person may apply to the court for a declaration as to whether a protective measure taken under the law of, and enforceable in, a country other than England and Wales is enforceable, or to be registered, in England and Wales in accordance with Court of Protection Rules.

(2) The court must make the declaration if—

(a) the measure comes within sub-paragraph (1) or (2) of paragraph 19, and

(b) the paragraph is not disapplied in relation to it as a result of sub-paragraph (3), (4) or (5).

(3) A measure to which a declaration under this paragraph relates is enforceable in England and Wales as if it were a measure of like effect taken by the court.

Measures taken in relation to those aged under 16

23

(1) This paragraph applies where—

(a) provision giving effect to, or otherwise deriving from, the Convention in a country other than England and Wales applies in relation to a person who has not reached 16, and

(b) a measure is taken in relation to that person in reliance on that provision.

(2) This Part of this Schedule applies in relation to that measure as it applies in relation to a protective measure taken in relation to an adult under the law of a Convention country other than England and Wales.

Supplementary

24

The court may not review the merits of a measure taken outside England and Wales except to establish whether the measure complies with this Schedule in so far as it is, as a result of this Schedule, required to do so.

25

Court of Protection Rules may make provision about an application under paragraph 20 or 22.

Part 5 — Co-operation

Proposal for cross-border placement

26

(1) This paragraph applies where a public authority proposes to place an adult in an establishment in a Convention country other than England and Wales.

(2) The public authority must consult an appropriate authority in that other country about the proposed placement and, for that purpose, must send it—

(a) a report on the adult, and

(b) a statement of its reasons for the proposed placement.

(3) If the appropriate authority in the other country opposes the proposed placement within a reasonable time, the public authority may not proceed with it.

27

A proposal received by a public authority under Article 33 in relation to an adult is to proceed unless the authority opposes it within a reasonable time.

Adult in danger etc.

28

(1) This paragraph applies if a public authority is told that an adult—

(a) who is in serious danger, and

(b) in relation to whom the public authority has taken, or is considering taking, protective measures,

is, or has become resident, in a Convention country other than England and Wales.

(2) The public authority must tell an appropriate authority in that other country about—

(a) the danger, and

(b) the measures taken or under consideration.

29

A public authority may not request from, or send to, an appropriate authority in a Convention country information in accordance with Chapter 5 (co-operation) in relation to an adult if it thinks that doing so—

(a) would be likely to endanger the adult or his property, or

(b) would amount to a serious threat to the liberty or life of a member of the adult's family.

Part 6 — General

Certificates

30

A certificate given under Article 38 by an authority in a Convention country other than England and Wales is, unless the contrary is shown, proof of the matters contained in it.

Powers to make further provision as to private international law

31

Her Majesty may by Order in Council confer on the Lord Chancellor, the court or another public authority functions for enabling the Convention to be given effect in England and Wales.

32

(1) Regulations may make provision—

(a) giving further effect to the Convention, or

(b) otherwise about the private international law of England and Wales in relation to the protection of adults.

(2) The regulations may—

(a) confer functions on the court or another public authority;

(b) amend this Schedule;

(d) make provision about countries other than Convention countries.

Exceptions

33

Nothing in this Schedule applies, and no provision made under paragraph 32 is to apply, to any matter to which the Convention, as a result of Article 4, does not apply.

Regulations and orders

34

A reference in this Schedule to regulations or an order (other than an Order in Council) is to regulations or an order made for the purposes of this Schedule by the Lord Chancellor.

Commencement

35

The following provisions of this Schedule have effect only if the Convention is in force in accordance with Article 57—

(a) paragraph 8,

(b) paragraph 9,

(d) Part 5,

(e) paragraph 30.

SCHEDULE 4

Part 1 — Enduring powers of attorney

Enduring power of attorney to survive mental incapacity of donor

1

(1) Where an individual has created a power of attorney which is an enduring power within the meaning of this Schedule—

(a) the power is not revoked by any subsequent mental incapacity of his,

(b) upon such incapacity supervening, the donee of the power may not do anything under the authority of the power except as provided by sub-paragraph (2) unless or until the instrument creating the power is registered under paragraph 13, and

(c) if and so long as paragraph (b) operates to suspend the donee's authority to act under the power, section 5 of the Powers of Attorney Act 1971 (c. 27) (protection of donee and third persons), so far as applicable, applies as if the power had been revoked by the donor's mental incapacity,

and, accordingly, section 1 of this Act does not apply.

(2) Despite sub-paragraph (1)(b), where the attorney has made an application for registration of the instrument then, until it is registered, the attorney may take action under the power—

(a) to maintain the donor or prevent loss to his estate, or

(b) to maintain himself or other persons in so far as paragraph 3(2) permits him to do so.

(3) Where the attorney purports to act as provided by sub-paragraph (2) then, in favour of a person who deals with him without knowledge that the attorney is acting otherwise than in accordance with sub-paragraph (2)(a) or (b), the transaction between them is as valid as if the attorney were acting in accordance with sub-paragraph (2)(a) or (b).

Characteristics of an enduring power of attorney

2

(1) Subject to sub-paragraphs (5) and (6) and paragraph 20, a power of attorney is an enduring power within the meaning of this Schedule if the instrument which creates the power—

(a) is in the prescribed form,

(b) was executed in the prescribed manner by the donor and the attorney, and

(2) In this paragraph, “prescribed” means prescribed by such of the following regulations as applied when the instrument was executed—

(a) the Enduring Powers of Attorney (Prescribed Form) Regulations 1986 (S.I. 1986/126),

(b) the Enduring Powers of Attorney (Prescribed Form) Regulations 1987 (S.I. 1987/1612),

(d) the Enduring Powers of Attorney (Welsh Language Prescribed Form) Regulations 2000 (S.I. 2000/289).

(3) An instrument in the prescribed form purporting to have been executed in the prescribed manner is to be taken, in the absence of evidence to the contrary, to be a document which incorporated at the time of execution by the donor the prescribed explanatory information.

(4) If an instrument differs in an immaterial respect in form or mode of expression from the prescribed form it is to be treated as sufficient in point of form and expression.

(5) A power of attorney cannot be an enduring power unless, when he executes the instrument creating it, the attorney is—

(a) an individual who has reached 18 and is not bankruptor is not subject to a debt relief order (under Part 7A of the Insolvency Act 1986), or

(b) a trust corporation.

(6) A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power.

(7) An enduring power is revoked by the bankruptcy of the donor or attorneyor the making of a debt relief order (under Part 7A of the Insolvency Act 1986) in respect of the donor or attorney.

(8) But where the donor or attorney is bankrupt merely because an interim bankruptcy restrictions order has effect in respect of himor where the donor or attorney is subject to an interim debt relief restrictions order, the power is suspended for so long as the order has effect.

(9) An enduring power is revoked if the court—

(a) exercises a power under sections 16 to 20 in relation to the donor, and

(b) directs that the enduring power is to be revoked.

(10) No disclaimer of an enduring power, whether by deed or otherwise, is valid unless and until the attorney gives notice of it to the donor or, where paragraph 4(6) or 15(1) applies, to the Public Guardian.

Scope of authority etc. of attorney under enduring power

3

(1) If the instrument which creates an enduring power of attorney is expressed to confer general authority on the attorney, the instrument operates to confer, subject to—

(a) the restriction imposed by sub-paragraph (3), and

(b) any conditions or restrictions contained in the instrument,

authority to do on behalf of the donor anything which the donor could lawfully do by an attorney at the time when the donor executed the instrument.

(2) Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) act under the power so as to benefit himself or other persons than the donor to the following extent but no further—

(a) he may so act in relation to himself or in relation to any other person if the donor might be expected to provide for his or that person's needs respectively, and

(b) he may do whatever the donor might be expected to do to meet those needs.

(3) Without prejudice to sub-paragraph (2) but subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) dispose of the property of the donor by way of gift to the following extent but no further—

(a) he may make gifts of a seasonal nature or at a time, or on an anniversary, of a birth, a marriage or the formation of a civil partnership, to persons (including himself) who are related to or connected with the donor, and

(b) he may make gifts to any charity to whom 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 size of the donor's estate.

Part 2 — Action on actual or impending incapacity of donor

Duties of attorney in event of actual or impending incapacity of donor

4

(1) Sub-paragraphs (2) to (6) apply if the attorney under an enduring power has reason to believe that the donor is or is becoming mentally incapable.

(2) The attorney must, as soon as practicable, make an application to the Public Guardian for the registration of the instrument creating the power.

(3) Before making an application for registration the attorney must comply with the provisions as to notice set out in Part 3 of this Schedule.

(4) An application for registration—

(a) must be made in the prescribed form, and

(b) must contain such statements as may be prescribed.

(5) The attorney—

(a) may, before making an application for the registration of the instrument, refer to the court for its determination any question as to the validity of the power, and

(b) must comply with any direction given to him by the court on that determination.

(6) No disclaimer of the power is valid unless and until the attorney gives notice of it to the Public Guardian; and the Public Guardian must notify the donor if he receives a notice under this sub-paragraph.

(7) A person who, in an application for registration, makes a statement which he knows to be false in a material particular is guilty of an offence and is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

(8) In this paragraph, “prescribed” means prescribed by regulations made for the purposes of this Schedule by the Lord Chancellor.

Part 3 — Notification prior to registration

Duty to give notice to relatives

5

Subject to paragraph 7, before making an application for registration the attorney must give notice of his intention to do so to all those persons (if any) who are entitled to receive notice by virtue of paragraph 6.

6

(1) Subject to sub-paragraphs (2) to (4), persons of the following classes (“relatives”) are entitled to receive notice under paragraph 5—

(a) the donor's spouse or civil partner,

(b) the donor's children,

(d) the donor's brothers and sisters, whether of the whole or half blood,

(e) the widow, widower or surviving civil partner of a child of the donor,

(f) the donor's grandchildren,

(g) the children of the donor's brothers and sisters of the whole blood,

(h) the children of the donor's brothers and sisters of the half blood,

(i) the donor's uncles and aunts of the whole blood,

(j) the children of the donor's uncles and aunts of the whole blood.

(2) A person is not entitled to receive notice under paragraph 5 if—

(a) his name or address is not known to the attorney and cannot be reasonably ascertained by him, or

(b) the attorney has reason to believe that he has not reached 18 or is mentally incapable.

(3) Except where sub-paragraph (4) applies—

(a) no more than 3 persons are entitled to receive notice under paragraph 5, and

(b) in determining the persons who are so entitled, persons falling within the class in sub-paragraph (1)(a) are to be preferred to persons falling within the class in sub-paragraph (1)(b), those falling within the class in sub-paragraph (1)(b) are to be preferred to those falling within the class in sub-paragraph (1)(c), and so on.

(4) Despite the limit of 3 specified in sub-paragraph (3), where—

(a) there is more than one person falling within any of classes (a) to (j) of sub-paragraph (1), and

(b) at least one of those persons would be entitled to receive notice under paragraph 5,

then, subject to sub-paragraph (2), all the persons falling within that class are entitled to receive notice under paragraph 5.

7

(1) An attorney is not required to give notice under paragraph 5—

(a) to himself, or

(b) to any other attorney under the power who is joining in making the application,

even though he or, as the case may be, the other attorney is entitled to receive notice by virtue of paragraph 6.

(2) In the case of any person who is entitled to receive notice by virtue of paragraph 6, the attorney, before applying for registration, may make an application to the court to be dispensed from the requirement to give him notice; and the court must grant the application if it is satisfied—

(a) that it would be undesirable or impracticable for the attorney to give him notice, or

(b) that no useful purpose is likely to be served by giving him notice.

Duty to give notice to donor

8

(1) Subject to sub-paragraph (2), before making an application for registration the attorney must give notice of his intention to do so to the donor.

(2) Paragraph 7(2) applies in relation to the donor as it applies in relation to a person who is entitled to receive notice under paragraph 5.

Contents of notices

9

A notice to relatives under this Part of this Schedule must—

(a) be in the prescribed form,

(b) state that the attorney proposes to make an application to the Public Guardian for the registration of the instrument creating the enduring power in question,

(d) specify, as the grounds on which an objection to registration may be made, the grounds set out in paragraph 13(9).

10

A notice to the donor under this Part of this Schedule—

(a) must be in the prescribed form,

(b) must contain the statement mentioned in paragraph 9(b), and

(c) must inform the donor that, while the instrument remains registered, any revocation of the power by him will be ineffective unless and until the revocation is confirmed by the court.

Duty to give notice to other attorneys

11

(1) Subject to sub-paragraph (2), before making an application for registration an attorney under a joint and several power must give notice of his intention to do so to any other attorney under the power who is not joining in making the application; and paragraphs 7(2) and 9 apply in relation to attorneys entitled to receive notice by virtue of this paragraph as they apply in relation to persons entitled to receive notice by virtue of paragraph 6.

(2) An attorney is not entitled to receive notice by virtue of this paragraph if—

(a) his address is not known to the applying attorney and cannot reasonably be ascertained by him, or

(b) the applying attorney has reason to believe that he has not reached 18 or is mentally incapable.

Supplementary

12

Despite section 7 of the Interpretation Act 1978 (c. 30) (construction of references to service by post), for the purposes of this Part of this Schedule a notice given by post is to be regarded as given on the date on which it was posted.

Part 4 — Registration

Registration of instrument creating power

13

(1) If an application is made in accordance with paragraph 4(3) and (4) the Public Guardian must, subject to the provisions of this paragraph, register the instrument to which the application relates.

(2) If it appears to the Public Guardian that—

(a) there is a deputy appointed for the donor of the power created by the instrument, and

(b) the powers conferred on the deputy would, if the instrument were registered, to any extent conflict with the powers conferred on the attorney,

the Public Guardian must not register the instrument except in accordance with the court's directions.

(3) The court may, on the application of the attorney, direct the Public Guardian to register an instrument even though notice has not been given as required by paragraph 4(3) and Part 3 of this Schedule to a person entitled to receive it, if the court is satisfied—

(a) that it was undesirable or impracticable for the attorney to give notice to that person, or

(b) that no useful purpose is likely to be served by giving him notice.

(4) Sub-paragraph (5) applies if, before the end of the period of 5 weeks beginning with the date (or the latest date) on which the attorney gave notice under paragraph 5 of an application for registration, the Public Guardian receives a valid notice of objection to the registration from a person entitled to notice of the application.

(5) The Public Guardian must not register the instrument except in accordance with the court's directions.

(6) Sub-paragraph (7) applies if, in the case of an application for registration—

(a) it appears from the application that there is no one to whom notice has been given under paragraph 5, or

(b) the Public Guardian has reason to believe that appropriate inquiries might bring to light evidence on which he could be satisfied that one of the grounds of objection set out in sub-paragraph (9) was established.

(7) The Public Guardian—

(a) must not register the instrument, and

(b) must undertake such inquiries as he thinks appropriate in all the circumstances.

(8) If, having complied with sub-paragraph (7)(b), the Public Guardian is satisfied that one of the grounds of objection set out in sub-paragraph (9) is established—

(a) the attorney may apply to the court for directions, and

(b) the Public Guardian must not register the instrument except in accordance with the court's directions.

(9) A notice of objection under this paragraph is valid if made on one or more of the following grounds—

(a) that the power purported to have been created by the instrument was not valid as an enduring power of attorney,

(b) that the power created by the instrument no longer subsists,

(d) that fraud or undue pressure was used to induce the donor to create the power,

(e) that, having regard to all the circumstances and in particular the attorney's relationship to or connection with the donor, the attorney is unsuitable to be the donor's attorney.

(10) If any of those grounds is established to the satisfaction of the court it must direct the Public Guardian not to register the instrument, but if not so satisfied it must direct its registration.

(11) If the court directs the Public Guardian not to register an instrument because it is satisfied that the ground in sub-paragraph (9)(d) or (e) is established, it must by order revoke the power created by the instrument.

(12) If the court directs the Public Guardian not to register an instrument because it is satisfied that any ground in sub-paragraph (9) except that in paragraph (c) is established, the instrument must be delivered up to be cancelled unless the court otherwise directs.

Register of enduring powers

14

The Public Guardian has the function of establishing and maintaining a register of enduring powers for the purposes of this Schedule.

Part 5 — Legal position after registration

Effect and proof of registration

15

(1) The effect of the registration of an instrument under paragraph 13 is that—

(a) no revocation of the power by the donor is valid unless and until the court confirms the revocation under paragraph 16(3);

(b) no disclaimer of the power is valid unless and until the attorney gives notice of it to the Public Guardian;

(c) the donor may not extend or restrict the scope of the authority conferred by the instrument and no instruction or consent given by him after registration, in the case of a consent, confers any right and, in the case of an instruction, imposes or confers any obligation or right on or creates any liability of the attorney or other persons having notice of the instruction or consent.

(2) Sub-paragraph (1) applies for so long as the instrument is registered under paragraph 13 whether or not the donor is for the time being mentally incapable.

(3) A document purporting to be an office copy of an instrument registered under this Schedule is, in any part of the United Kingdom, evidence of—

(a) the contents of the instrument, and

(b) the fact that it has been so registered.

(4) Sub-paragraph (3) is without prejudice to section 3 of the Powers of Attorney Act 1971 (c. 27) (proof by certified copies) and to any other method of proof authorised by law.

Functions of court with regard to registered power

16

(1) Where an instrument has been registered under paragraph 13, the court has the following functions with respect to the power and the donor of and the attorney appointed to act under the power.

(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 him for the 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;

(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 so as to benefit himself or other persons than the donor otherwise than in accordance with paragraph 3(2) and (3) (but subject to any conditions or restrictions contained in the instrument);

(f) relieve the attorney wholly or partly from any liability which he has or may have incurred on account of a breach of his duties as attorney.

(3) On application made for the purpose by or on behalf of the donor, the court must confirm the revocation of the power if satisfied that the donor—

(a) has done whatever is necessary in law to effect an express revocation of the power, and

(b) was mentally capable of revoking a power of attorney when he did so (whether or not he is so when the court considers the application).

(4) The court must direct the Public Guardian to cancel the registration of an instrument registered under paragraph 13 in any of the following circumstances—

(a) on confirming the revocation of the power under sub-paragraph (3),

(b) on directing under paragraph 2(9)(b) that the power is to be revoked,

(d) on being satisfied that the power has expired or has been revoked by the mental incapacity of the attorney,

(e) on being satisfied that the power was not a valid and subsisting enduring power when registration was effected,

(f) on being satisfied that fraud or undue pressure was used to induce the donor to create the power,

(g) on being satisfied that, having regard to all the circumstances and in particular the attorney's relationship to or connection with the donor, the attorney is unsuitable to be the donor's attorney.

(5) If the court directs the Public Guardian to cancel the registration of an instrument on being satisfied of the matters specified in sub-paragraph (4)(f) or (g) it must by order revoke the power created by the instrument.

(6) If the court directs the cancellation of the registration of an instrument under sub-paragraph (4) except paragraph (c) the instrument must be delivered up to the Public Guardian to be cancelled, unless the court otherwise directs.

Cancellation of registration by Public Guardian

17

The Public Guardian must cancel the registration of an instrument creating an enduring power of attorney—

(a) on receipt of a disclaimer signed by the attorney;

(b) if satisfied that the power has been revoked by the death or bankruptcy of the donor or attorneyor the making of a debt relief order (under Part 7A of the Insolvency Act 1986) in respect of the donor or attorney or, if the attorney is a body corporate, by its winding up or dissolution;

(d) on confirmation from the court that the donor has revoked the power.

Part 6 — Protection of attorney and third parties

Protection of attorney and third persons where power is invalid or revoked

18

(1) Sub-paragraphs (2) and (3) apply where an instrument which did not create a valid power of attorney has been registered under paragraph 13 (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 the power does not incur any liability (either to the donor or to any other person) because of the non-existence of the power unless at the time of acting he knows—

(a) that the instrument did not create a valid enduring power,

(b) that an event has occurred which, if the instrument had created a valid enduring power, would have had the effect of revoking the power, or

(3) Any transaction between the attorney and another person is, in favour of that person, 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 sub-paragraph (2).

(4) If the interest of a purchaser depends on whether a transaction between the attorney and another person was valid by virtue of sub-paragraph (3), it is conclusively presumed in favour of the purchaser that the transaction was valid if—

(a) the transaction between that person and the attorney was completed within 12 months of the date on which the instrument was registered, or

(b) that person makes a statutory declaration, before or within 3 months after the completion of the purchase, that he 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 5 of the Powers of Attorney Act 1971 (c. 27) (protection where power is revoked) in its application to an enduring power the revocation of which by the donor is by virtue of paragraph 15 invalid unless and until confirmed by the court under paragraph 16—

(a) knowledge of the confirmation of the revocation is knowledge of the revocation of the power, but

(b) knowledge of the unconfirmed revocation is not.

Further protection of attorney and third persons

19

(1) If—

(a) an instrument framed in a form prescribed as mentioned in paragraph 2(2) creates a power which is not a valid enduring power, and

(b) the power is revoked by the mental incapacity of the donor,

sub-paragraphs (2) and (3) apply, whether or not the instrument has been registered.

(2) An attorney who acts in pursuance of the power does not, by reason of the revocation, incur any liability (either to the donor or to any other person) unless at the time of acting he knows—

(a) that the instrument did not create a valid enduring power, and

(b) that the donor has become mentally incapable.

(3) Any transaction between the attorney and another person is, in favour of that person, as valid as if the power had then been in existence, unless at the time of the transaction that person knows—

(a) that the instrument did not create a valid enduring power, and

(b) that the donor has become mentally incapable.

(4) Paragraph 18(4) applies for the purpose of determining whether a transaction was valid by virtue of sub-paragraph (3) as it applies for the purpose or determining whether a transaction was valid by virtue of paragraph 18(3).

Part 7 — Joint and joint and several attorneys

Application to joint and joint and several attorneys

20

(1) An instrument which appoints more than one person to be an attorney cannot create an enduring power unless the attorneys are appointed to act—

(a) jointly, or

(b) jointly and severally.

(2) This Schedule, in its application to joint attorneys, applies to them collectively as it applies to a single attorney but subject to the modifications specified in paragraph 21.

(3) This Schedule, in its application to joint and several attorneys, applies with the modifications specified in sub-paragraphs (4) to (7) and in paragraph 22.

(4) A failure, as respects any one attorney, to comply with the requirements for the creation of enduring powers—

(a) prevents the instrument from creating such a power in his case, but

(b) does not affect its efficacy for that purpose as respects the other or others or its efficacy in his case for the purpose of creating a power of attorney which is not an enduring power.

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