Mental Capacity Bill

House of Commons

Session 2003 - 04
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Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 7 — Joint and joint and several attorneys
59

(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—
5
(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
10
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
15
(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
20
(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).
25
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—
30
(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.
35
      (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
40
(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.

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 7 — Joint and joint and several attorneys
60

      (5)
If one or more but not both or all the attorneys makes or joins in making an
application for registration of the instrument—
(a)
an attorney who is not an applicant as well as one who is may act
pending the registration of the instrument as provided in paragraph
1(2),
5
(b)
notice of the application must also be given under Part 3 of this
Schedule to the other attorney or attorneys, and
(c)
objection may validly be taken to the registration on a ground
relating to an attorney or to the power of an attorney who is not an
applicant as well as to one or the power of one who is an applicant.
10
      (6)
The Public Guardian is not precluded by paragraph 13(5) or (8) from
registering an instrument and the court must not direct him not to do so
under paragraph 13(10) if an enduring power subsists as respects some
attorney who is not affected by the ground or grounds of the objection in
question; and where the Public Guardian registers an instrument in that
15
case, he must make against the registration an entry in the prescribed form.
      (7)
Sub-paragraph (6) does not preclude the court from revoking a power in so
far as it confers a power on any other attorney in respect of whom the
ground in paragraph 13(9)(d) or (e) is established; and where any ground in
paragraph 13(9) affecting any other attorney is established the court must
20
direct the Public Guardian to make against the registration an entry in the
prescribed form.
      (8)
In sub-paragraph (4) “the requirements for the creation of enduring powers”
means the provisions of—
(a)
paragraph 2 other than sub-paragraphs (8) and (9), and
25
(b)
the regulations mentioned in paragraph 2.
Joint attorneys
21    (1)
In paragraph 2(5), the reference to the time when the attorney executes the
instrument is to be read as a reference to the time when the second or last
attorney executes the instrument.
30
      (2)
In paragraph 2(6) to (8), the reference to the attorney is to be read as a
reference to any attorney under the power.
      (3)
Paragraph 13 has effect as if the ground of objection to the registration of the
instrument specified in sub-paragraph (9)(e) applied to any attorney under
the power.
35
      (4)
In paragraph 16(2), references to the attorney are to be read as including
references to any attorney under the power.
      (5)
In paragraph 16(4), references to the attorney are to be read as including
references to any attorney under the power.
      (6)
In paragraph 17, references to the attorney are to be read as including
40
references to any attorney under the power.
Joint and several attorneys
22    (1)
In paragraph 2(7), the reference to the bankruptcy of the attorney is to be
read as a reference to the bankruptcy of the last remaining attorney under
the power; and the bankruptcy of any other attorney under the power causes
45
that person to cease to be an attorney under the power.

Mental Capacity Bill
Schedule 5 — Transitional provisions and savings
Part 1 — Repeal of Part 7 of the Mental Health Act 1983
61

      (2)
In paragraph 2(8), the reference to the suspension of the power is to be read
as a reference to its suspension in so far as it relates to the attorney in respect
of whom the interim bankruptcy restrictions order has effect.
      (3)
The restriction upon disclaimer imposed by paragraph 4(6) applies only to
those attorneys who have reason to believe that the donor is or is becoming
5
mentally incapable.
Part 8
Interpretation
23    (1)
In this Schedule—
“enduring power” is to be construed in accordance with paragraph 2,
10
“mentally incapable” or “mental incapacity”, except where it refers to
revocation at common law, means in relation to any person, that he
is incapable by reason of mental disorder (within the meaning of
the Mental Health Act) of managing and administering his
property and affairs and “mentally capable” and “mental capacity”
15
are to be construed accordingly,
“notice” means notice in writing, and
“prescribed”, except for the purposes of paragraph 2, means
prescribed by regulations made for the purposes of this Schedule by
the Lord Chancellor.
20
      (2)
Any question arising under or for the purposes of this Schedule as to what
the donor of the power might at any time be expected to do is to be
determined by assuming that he had full mental capacity at the time but
otherwise by reference to the circumstances existing at that time.
Schedule 5
25
Section 62(4)

Transitional provisions and savings
Part 1
Repeal of Part 7 of the Mental Health Act 1983
Existing receivers
1     (1)
This paragraph applies where, immediately before the commencement day,
30
there is a receiver (“R”) for a person (“P”) appointed under section 99 of the
Mental Health Act.
      (2)
On and after that day—
(a)
this Act applies as if R were a deputy appointed for P by the court,
but with the functions that R had as receiver immediately before that
35
day, and
(b)
a reference in any other enactment to a deputy appointed by the
court includes a person appointed as a deputy as a result of
paragraph (a).
      (3)
On any application to it by R, the court may end R’s appointment as P’s
40
deputy.

Mental Capacity Bill
Schedule 5 — Transitional provisions and savings
Part 1 — Repeal of Part 7 of the Mental Health Act 1983
62

      (4)
Where, as a result of section 20(1), R may not make a decision on behalf of P
in relation to a relevant matter, R must apply to the court.
      (5)
If, on the application, the court is satisfied that P is capable of managing his
property and affairs in relation to the relevant matter—
(a)
it must make an order ending R’s appointment as P’s deputy in
5
relation to that matter, but
(b)
it may, in relation to any other matter, exercise in relation to P any of
the powers which it has under sections 15 to 19.
      (6)
If it is not satisfied, the court may exercise in relation to P any of the powers
which it has under sections 15 to 19.
10
      (7)
R’s appointment as P’s deputy ceases to have effect if P dies.
      (8)
“Relevant matter” means a matter in relation to which, immediately before
the commencement day, R was authorised to act as P’s receiver.
      (9)
In sub-paragraph (1), the reference to a receiver appointed under section 99
of the Mental Health Act includes a reference to a person who by virtue of
15
Schedule 5 to that Act was deemed to be a receiver appointed under that
section.
Orders, appointments etc.
2     (1)
Any order or appointment made, direction or authority given or other thing
done which has, or by virtue of Schedule 5 to the Mental Health Act was
20
deemed to have, effect under Part 7 of the Act immediately before the
commencement day is to continue to have effect despite the repeal of Part 7.
      (2)
In so far as any such order, appointment, direction, authority or thing could
have been made, given or done under sections 15 to 20 if those sections had
then been in force—
25
(a)
it is to be treated as made, given or done under those sections, and
(b)
the powers of variation and discharge conferred by section 16(7)
apply accordingly.
      (3)
Sub-paragraph (1)—
(a)
does not apply to nominations under section 93(1) or (4) of the
30
Mental Health Act, and
(b)
as respects receivers, has effect subject to paragraph 1.
      (4)
This Act does not affect the operation of section 109 of the Mental Health Act
(effect and proof of orders etc.) in relation to orders made and directions
given under Part 7 of that Act.
35
      (5)
This paragraph is without prejudice to section 16 of the Interpretation Act
1978 (c. 30) (general savings on repeal).
Pending proceedings
3     (1)
Any application for the exercise of a power under Part 7 of the Mental Health
Act which is pending immediately before the commencement day is to be
40
treated, in so far as a corresponding power is exercisable under sections 16
to 20, as an application for the exercise of that power.
      (2)
For the purposes of sub-paragraph (1) an application for the appointment of
a receiver is to be treated as an application for the appointment of a deputy.

Mental Capacity Bill
Schedule 5 — Transitional provisions and savings
Part 1 — Repeal of Part 7 of the Mental Health Act 1983
63

Appeals
4     (1)
Part 7 of the Mental Health Act and the rules made under it are to continue
to apply to any appeal brought by virtue of section 105 of that Act which has
not been determined before the commencement day.
      (2)
If in the case of an appeal brought by virtue of section 105(1) (appeal to
5
nominated judge) the judge nominated under section 93 of the Mental
Health Act has begun to hear the appeal, he is to continue to do so but
otherwise it is to be heard by a puisne judge of the High Court nominated
under section 44.
Fees
10
5
All fees and other payments which, having become due, have not been paid
to the former Court of Protection before the commencement day, are to be
paid to the new Court of Protection.
Court records
6     (1)
The records of the former Court of Protection are to be treated, on and after
15
the commencement day, as records of the new Court of Protection and are
to be dealt with accordingly under the Public Records Act 1958 (c. 51).
      (2)
On and after the commencement day, the Public Guardian is, for the
purpose of exercising any of his functions, to be given such access as he may
require to such of the records mentioned in sub-paragraph (1) as relate to the
20
appointment of receivers under section 99 of the Mental Health Act.
Existing charges
7
This Act does not affect the operation in relation to a charge created before
the commencement day of—
(a)
so much of section 101(6) of the Mental Health Act as precludes a
25
charge created under section 101(5) from conferring a right of sale or
foreclosure during the lifetime of the patient; or
(b)
section 106(6) of the Mental Health Act (charge created by virtue of
section 106(5) not to cause interest to fail etc.).
Preservation of interests on disposal of property
30
8
Paragraph 8(1) of Schedule 2 applies in relation to any disposal of property
(within the meaning of that provision) by a person living on 1st November
1960, being a disposal effected under the Lunacy Act 1890 (c. 5) as it applies
in relation to the disposal of property effected under sections 16 to 20.
Accounts
35
9
Court of Protection Rules may provide that, in a case where paragraph 1
applies, R is to have a duty to render accounts—
(a)
while he is receiver;
(b)
after he is discharged.
Interpretation
40
10
In this Part of this Schedule—

Mental Capacity Bill
Schedule 5 — Transitional provisions and savings
Part 2 — Repeal of the Enduring Powers of Attorney Act 1985
64

(a)
“the commencement day” means the day on which section 62(1)(a)
(repeal of Part 7 of the Mental Health Act) comes into force,
(b)
“the former Court of Protection” means the office abolished by
section 43, and
(c)
“the new Court of Protection” means the court established by section
5
43.
Part 2
Repeal of the Enduring Powers of Attorney Act 1985
Orders, determinations, etc.
11    (1)
Any order or determination made or other thing done under the 1985 Act
10
which has effect immediately before the commencement day continues to
have effect despite the repeal of that Act.
      (2)
In so far as any such order, determination or thing could have been made or
done under Schedule 4 if it had then been in force—
(a)
it is to be treated as made or done under that Schedule, and
15
(b)
the powers of variation and discharge exercisable by the court apply
accordingly.
      (3)
Any instrument registered under the 1985 Act is to be treated as having been
registered by the Public Guardian under Schedule 4.
      (4)
This paragraph is without prejudice to section 16 of the Interpretation Act
20
1978 (c. 30) (general savings on repeal).
Pending proceedings
12    (1)
An application for the exercise of a power under the 1985 Act which is
pending immediately before the commencement day is to be treated, in so
far as a corresponding power is exercisable under Schedule 4, as an
25
application for the exercise of that power.
      (2)
For the purposes of sub-paragraph (1)—
(a)
a pending application under section 4(2) of the 1985 Act for the
registration of an instrument is to be treated as an application to the
Public Guardian under paragraph 4 of Schedule 4 and any notice
30
given in connection with that application under Schedule 1 to the
1985 Act is to be treated as given under Part 3 of Schedule 4;
(b)
a notice of objection to the registration of an instrument is to be
treated as a notice of objection under paragraph 13 of Schedule 4;
(c)
pending proceedings under section 5 of the 1985 Act are to be treated
35
as proceedings on an application for the exercise by the court of a
power which would become exercisable in relation to an instrument
under paragraph 16(2) of Schedule 4 on its registration.
Appeals
13    (1)
The 1985 Act, and, so far as relevant, the provisions of Part 7 of the Mental
40
Health Act and the rules made under it as applied by section 10 of the 1985
Act, are to continue to have effect in relation to any appeal brought by virtue
of section 10(1)(c) of the 1985 Act which has not been determined before the
commencement day.

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
65

      (2)
If in the case of an appeal brought by virtue of section 105(1) of the Mental
Health Act as applied by section 10(1)(c) of the 1985 Act (appeal to
nominated judge) the judge nominated under section 93 of the Mental
Health Act has begun to hear the appeal, he is to continue to do so but
otherwise the appeal is to be heard by a puisne judge of the High Court
5
nominated under section 44.
Exercise of powers of donor as trustee
14    (1)
Section 2(8) of the 1985 Act (which prevents a power of attorney under
section 25 of the Trustee Act 1925 (c. 19) as enacted from being an enduring
power) is to continue to apply to any enduring power—
10
(a)
created before 1st March 2000, and
(b)
having effect immediately before the commencement day.
      (2)
Section 3(3) of the 1985 Act (which entitles the donee of an enduring power
to exercise the donor’s powers as trustee) is to continue to apply to any
enduring power to which, as a result of the provision mentioned in sub-
15
paragraph (3), it applies immediately before the commencement day.
      (3)
The provision is section 4(3)(a) of the Trustee Delegation Act 1999 (c. 15)
(which provides for section 3(3) of the 1985 Act to cease to apply to an
enduring power when its registration is cancelled, if it was registered in
response to an application made before 1st March 2001).
20
      (4)
Even though section 4 of the 1999 Act is repealed by this Act, that section is
to continue to apply in relation to an enduring power—
(a)
to which section 3(3) of the 1985 Act applies as a result of sub-
paragraph (2), or
(b)
to which, immediately before the repeal of section 4 of the 1999 Act,
25
section 1 of that Act applies as a result of section 4 of it.
      (5)
The reference in section 1(9) of the 1999 Act to section 4(6) of that Act is to be
read with sub-paragraphs (2) to (4).
Interpretation
15
In this Part of this Schedule “the commencement day” means the day on
30
which section 62(1)(b) (repeal of the 1985 Act) comes into force.
Schedule 6
Section 63(1)

Minor and consequential amendments
Fines and Recoveries Act 1833 (c. 74)
1     (1)
The Fines and Recoveries Act 1833 (c. 74) is amended as follows.
35
      (2)
In section 33 (case where protector of settlement lacks capacity to act), for the
words from “shall be incapable” to “is incapable as aforesaid” substitute
“lacks capacity (within the meaning of the Mental Capacity Act 2004) to
manage his property and affairs, the Court of Protection is to take his place
as protector of the settlement while he lacks capacity”.
40