Mental Capacity Bill

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Part 3 — Miscellaneous and general
31

Part 3
Miscellaneous and general
Declaratory provision
58
Scope of the Act
For the avoidance of doubt, it is hereby declared that nothing in this Act is to
5
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
59
International protection of adults
Schedule 3—
10
(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.
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General
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Interpretation
(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),
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“the court” means the Court of Protection established by section 43,

“Court of Protection Rules” has the meaning given in section 49(1),

“Court of Protection Visitor” has the meaning given in section 57,

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

“enactment” includes a provision of subordinate legislation (within the
25
meaning of the Interpretation Act 1978 (c. 30)),

“health record” has the meaning given in section 68 of the Data Protection
Act 1998 (c. 29) (as read with section 69 of that Act),

“independent consultee” has the meaning given in section 34(1),

“lasting power of attorney” has the meaning given in section 9,
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“life-sustaining treatment” has the meaning given in section 6(7),

“local authority” means—
(a)
the council of a county in England in which there are no district
councils,
(b)
the council of a district in England,
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(c)
the council of a county or county borough in Wales,
(d)
the council of a London borough,
(e)
the Common Council of the City of London, or
(f)
the Council of the Isles of Scilly,

“Mental Health Act” means the Mental Health Act 1983 (c. 20),
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Mental Capacity Bill
Part 3 — Miscellaneous and general
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“property” includes any thing in action and any interest in real or
personal property,

“Public Guardian” has the meaning given in section 55,

“purchaser” and “purchase” have the meaning given in section 205(1) of
the Law of Property Act 1925 (c. 20),
5

“social services function” has the meaning given in section 1A of the Local
Authority Social Services Act 1970 (c. 42),

“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
10

“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
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a bankruptcy restrictions order under the Insolvency Act 1986 (c. 45) has effect
in respect of him.
(4)
“Bankruptcy restrictions order” includes an interim bankruptcy restrictions
order.
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Rules, regulations and orders
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(1)
Any power to make rules, regulations or orders under this Act—
(a)
is exercisable by statutory instrument;
(b)
includes power to make supplementary, incidental, consequential,
transitional or saving provision;
(c)
includes power to make different provision for different cases.
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(2)
Any statutory instrument containing rules, regulations or orders made by the
Lord Chancellor or the Secretary of State under this Act, other than an order
under section 64 or of the kind mentioned in section 63(6), is subject to
annulment in pursuance of a resolution of either House of Parliament.
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Existing receivers and enduring powers of attorney etc.
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(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 this Act.
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(3)
Schedule 4 has effect in place of the 1985 Act in relation to any enduring power
of attorney created before the commencement of this Act.
(4)
Schedule 5 contains transitional provisions and savings in relation to Part 7 of
the Mental Health Act and the 1985 Act.
63
Minor and consequential amendments and repeals
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(1)
Schedule 6 contains minor and consequential amendments.

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Part 3 — Miscellaneous and general
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(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—
5
(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 passed in a Session after the one in which this Act is passed.
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(5)
The power conferred by subsection (3) is not restricted by any other provision
of this Act.
(6)
An order under subsection (3) which amends or repeals a provision of an Act
may not be made unless a draft has been laid before and approved by
resolution of each House of Parliament.
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64
Commencement and extent
(1)
This Act comes into force in accordance with provision made by order by the
Lord Chancellor.
(2)
An order under this section may appoint different days for different provisions
and different purposes.
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(3)
Subject to subsections (4) and (5), this Act extends to England and Wales only.
(4)
The following provisions extend to the United Kingdom—
(a)
paragraph 15(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
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registration of enduring powers of attorney).
(5)
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.
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Short title
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This Act may be cited as the Mental Capacity Act 2004.

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Mental Capacity Bill
Schedule 1 — Lasting powers of attorney: formalities
Part 1 — Making instruments

Schedules
Schedule 1
Section 9

Lasting powers of attorney: formalities
Part 1
Making instruments
5
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
(c)
any prescribed requirements in connection with its execution are
10
satisfied.
      (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
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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.
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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—
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(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,
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(c)
a statement by the donor—
(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
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notified of any such application,

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Schedule 1 — Lasting powers of attorney: formalities
Part 2 — Registration
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(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,
and
(ii)
understands the duty imposed on a donee of a lasting power
5
of attorney under section 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,
10
(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—
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(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
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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
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(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
30
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.
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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—
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(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,

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Schedule 1 — Lasting powers of attorney: formalities
Part 2 — Registration
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(b)
by the donee or donees, or
(c)
if the instrument appoints two or more donees to act jointly and
severally, by any of the donees.
      (3)
The application must be accompanied by—
(a)
the instrument, and
5
(b)
any fee provided for under section 56(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 12
10
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.
5
Subject to paragraphs 11 to 13, the Public Guardian must register the
instrument as a lasting power of attorney at the end of the prescribed period.
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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.
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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
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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,
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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
35
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),
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if satisfied that no useful purpose would be served by giving the notice.
Deputy already appointed
11    (1)
Sub-paragraph (2) applies if it appears to the Public Guardian that—

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Schedule 1 — Lasting powers of attorney: formalities
Part 2 — Registration
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(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
5
directs him to do so.
Objection by donee or named person
12    (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
10
(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)
The Public Guardian must not register the instrument if he is satisfied that
15
the ground for making the objection is established.
      (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—
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(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.
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Objection by donor
13    (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
30
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
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(b)
directs the Public Guardian to register the instrument.
Notification of registration
14
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
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(b)
the donee or, if more than one, each of them.