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Mental Capacity Bill


Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 3 — Notification prior to registration

52

 

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.

5

      (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—

10

(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

15

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

20

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

25

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.

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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)

35

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,

40

(c)   

the donor’s parents,

(d)   

the donor’s brothers and sisters, whether of the whole or half blood,

 

 

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 3 — Notification prior to registration

53

 

(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,

5

(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

10

(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

15

(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.

20

      (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,

25

           

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

30

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

35

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.

40

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.

45

 

 

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 4 — Registration

54

 

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

5

power in question;

(c)   

inform the person to whom it is given of his right to object to the

registration under paragraph 13(4);

(d)   

specify, as the grounds on which an objection to registration may be

made, the grounds set out in paragraph 13(9).

10

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

15

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

20

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

25

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

30

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

35

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—

40

(a)   

there is a deputy appointed for the donor of the power created by the

instrument, and

 

 

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 4 — Registration

55

 

(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.

5

      (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

10

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

15

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—

20

(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

25

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.

30

      (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

35

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,

40

(b)   

that the power created by the instrument no longer subsists,

(c)   

that the application is premature because the donor is not yet

becoming mentally incapable,

(d)   

that fraud or undue pressure was used to induce the donor to create

the power,

45

(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.

 

 

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 5 — Legal position after registration

56

 

     (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

5

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 sub-

paragraph (9)(c) is established, the instrument must be delivered up to be

cancelled unless the court otherwise directs.

10

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

15

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

20

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

25

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.

30

      (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

35

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

40

attorney appointed to act under the power.

      (2)  

The court may—

(a)   

determine any question as to the meaning or effect of the instrument;

 

 

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 5 — Legal position after registration

57

 

(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;

5

(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;

(c)   

require the attorney to supply information or produce documents or

10

things in his possession as attorney;

(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)

15

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

20

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).

25

      (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,

30

(c)   

on being satisfied that the donor is and is likely to remain mentally

capable,

(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

35

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

40

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

45

sub-paragraph (4) except paragraph (c) the instrument must be delivered up

to the Public Guardian to be cancelled, unless the court otherwise directs.

 

 

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 6 — Protection of attorney and third parties

58

 

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

5

bankruptcy of the donor or attorney or, if the attorney is a body

corporate, by its winding up or dissolution;

(c)   

on receipt of notification from the court that the court has revoked

the power;

(d)   

on confirmation from the court that the donor has revoked the

10

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

15

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

20

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

25

(c)   

that, if the instrument had created a valid enduring power, the

power would have expired before that time.

      (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

30

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—

35

(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

40

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

45

unless and until confirmed by the court under paragraph 16—

 

 

 
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