Mental Capacity Bill

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Schedule 3 — International protection of adults
Part 3 — Applicable law
45

Part 3
Applicable law
Applicable law
12
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
5
and Wales, apply the law of that other country.
13
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.
10
14    (1)
This paragraph applies where—
(a)
the donor of a lasting power designates in writing the law of a
connected country as the law applicable to the existence, extent,
modification or extinction of the power, and
(b)
but for this paragraph, the applicable law in that respect would be
15
the law of England and Wales.
      (2)
The law designated by the donor is the applicable law in that respect.
      (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
20
(c)
in which he has property.
      (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
25
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
(c)
any other power of like effect.
30
15    (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
35
and Wales, the court must, so far as possible, have regard to the law of the
other country in that respect (or those respects).
16
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 14(6)(c) above.
40

Mental Capacity Bill
Schedule 3 — International protection of adults
Part 4 — Recognition and enforcement
46

Protection of third parties
17    (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, at a time when the representative and the third party are
in England and Wales.
5
      (2)
The validity of the transaction may not be questioned in proceedings, nor
may the third party be held liable, merely because—
(a)
the law applicable to the authority in one or more respects is, in
accordance with this Part of this Schedule, the law of a country other
than England and Wales, and
10
(b)
the representative is not entitled to exercise the authority in that
respect (or those respects) under the law of that other country.
      (3)
This paragraph does not apply if the third party knew or ought to have
known that the applicable law was the law of that other country.
Mandatory rules
15
18
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
19
Nothing in this Part of this Schedule requires or enables the application in
20
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
25
20    (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
30
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—
35
(a)
the case in which the measure was taken was not urgent,
(b)
the adult was not given an opportunity to be heard, and
(c)
that omission amounted to a breach of natural justice.
      (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
40
policy,
(b)
the measure would be inconsistent with a mandatory provision of
the law of England and Wales, or

Mental Capacity Bill
Schedule 3 — International protection of adults
Part 4 — Recognition and enforcement
47

(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
5
connection with that matter.
21    (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
10
paragraph.
22
For the purposes of paragraphs 20 and 21, any finding of fact relied on when
the measure was taken is conclusive.
Enforcement
23    (1)
An interested person may apply to the court for a declaration as to whether
15
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 20,
20
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.
25
Measures taken in relation to those aged under 16
24    (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
30
(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.
35
Supplementary
25
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.
26
Court of Protection Rules may make provision about an application under
40
paragraph 21 or 23.

Mental Capacity Bill
Schedule 3 — International protection of adults
Part 6 — General
48

Part 5
Co-operation
Proposal for cross-border placement
27    (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.
5
      (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
10
placement within a reasonable time, the public authority may not proceed
with it.
28
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.
15
29    (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
20
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.
25
30
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
30
the adult’s family.
Part 6
General
Certificates
31
A certificate given under Article 38 by an authority in a Convention country
35
other than England and Wales is, unless the contrary is shown, proof of the
matters contained in it.

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 1 — Enduring powers of attorney
49

Powers to make further provision as to private international law
32
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.
33    (1)
Regulations may make provision—
5
(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;
10
(b)
amend this Schedule;
(c)
provide for this Schedule to apply with specified modifications;
(d)
make provision about countries other than Convention countries.
Exceptions
34
Nothing in this Schedule applies, and no provision made under paragraph
15
33 is to apply, to any matter to which the Convention, as a result of Article
4, does not apply.
Regulations and orders
35
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
20
Schedule by the Lord Chancellor.
Commencement
36
The following provisions of this Schedule have effect only if the Convention
is in force in accordance with Article 57—
(a)
paragraph 9,
25
(b)
paragraph 10,
(c)
paragraph 20(2) and (5),
(d)
Part 5,
(e)
paragraph 31.
Schedule 4
30
Section 62(3)

Provisions applying to existing enduring powers of attorney
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
35
power within the meaning of this Schedule—
(a)
the power is not revoked by any subsequent mental incapacity of his,

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 1 — Enduring powers of attorney
50

(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
5
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.
10
      (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)
15
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
20
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—
25
(a)
is in the prescribed form,
(b)
was executed in the prescribed manner by the donor and the
attorney, and
(c)
incorporated at the time of execution by the donor the prescribed
explanatory information.
30
      (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
35
1987 (S.I. 1987/1612),
(c)
the Enduring Powers of Attorney (Prescribed Form) Regulations
1990 (S.I. 1990/1376),
(d)
the Enduring Powers of Attorney (Welsh Language Prescribed
Form) Regulations 2000 (S.I. 2000/289).
40
      (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
45
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—

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 1 — Enduring powers of attorney
51

(a)
an individual who has reached 18 and is not bankrupt, 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 attorney.
5
      (8)
But where the donor or attorney is bankrupt merely because an interim
bankruptcy restrictions order has effect in respect of him, 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
10
(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
15
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,
20

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
25
(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
30
(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)
35
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, marriage or the formation of a civil
partnership, to persons (including himself) who are related to or
40
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.
45