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Mental Capacity Bill


Mental Capacity Bill
Schedule 6 — Minor and consequential amendments

73

 

Administration of Justice Act 1985 (c. 61)

27         

In section 18(3) of the Administration of Justice Act 1985 (c. 61) (licensed

conveyancer who lacks capacity), for the words from “that person” to the

end substitute “he becomes a person who lacks capacity (within the meaning

of the Mental Capacity Act 2004) to practise as a licensed conveyancer.”.

5

Insolvency Act 1986 (c. 45)

28    (1)  

The Insolvency Act 1986 (c. 45) is amended as follows.

      (2)  

In section 389A (people not authorised to act as nominee or supervisor in

voluntary arrangement), in subsection (3)—

(a)   

omit the “or” immediately after paragraph (b),

10

(b)   

in paragraph (c), omit “Part VII of the Mental Health Act 1983 or”,

and

(c)   

after that paragraph, insert “, or

(d)   

he lacks capacity (within the meaning of the Mental

Capacity Act 2004) to act as nominee or supervisor”.

15

      (3)  

In section 390 (people not qualified to be insolvency practitioners), in

subsection (4)—

(a)   

omit the “or” immediately after paragraph (b),

(b)   

in paragraph (c), omit “Part VII of the Mental Health Act 1983 or”,

and

20

(c)   

after that paragraph, insert “, or

(d)   

he lacks capacity (within the meaning of the Mental

Capacity Act 2004) to act as an insolvency

practitioner.”.

Building Societies Act 1986 (c. 53)

25

29         

In section 102D(9) of the Building Societies Act 1986 (c. 53) (references to a

person holding an account on trust for another)—

(a)   

in paragraph (a), for “Part VII of the Mental Health Act 1983”

substitute “the Mental Capacity Act 2004”, and

(b)   

for paragraph (b), substitute—

30

“(b)   

to an attorney holding an account for another person

under—

(i)   

an enduring power of attorney or lasting

power of attorney registered under the Mental

Capacity Act 2004, or

35

(ii)   

an enduring power registered under the

Enduring Powers of Attorney (Northern

Ireland) Order 1987;”.

Public Trustee and Administration of Funds Act 1986 (c. 57)

30         

In section 3 of the Public Trustee and Administration of Funds Act 1986

40

(c. 57) (functions of the Public Trustee)—

(a)   

for subsections (1) to (5) substitute—

“(1)   

The Public Trustee may exercise the functions of a deputy

appointed by the Court of Protection.”,

 

 

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments

74

 

(b)   

in subsection (6), for “the 1906 Act” substitute “the Public Trustee Act

1906”, and

(c)   

omit subsection (7).

Courts and Legal Services Act 1990 (c. 41)

31         

In Schedule 11 to the Courts and Legal Services Act 1990 (c. 41) (judges etc.

5

barred from legal practice), for the reference to a Master of the Court of

Protection substitute a reference to each of the following—

(a)   

Senior Judge of the Court of Protection,

(b)   

President of the Court of Protection,

(c)   

Vice-President of the Court of Protection.

10

Child Support Act 1991 (c. 48)

32         

In section 50 of the Child Support Act 1991 (c. 48) (unauthorised disclosure

of information)—

(a)   

in subsection (8)—

(i)   

immediately after paragraph (a), insert “or”,

15

(ii)   

omit paragraphs (b) and (d) and the “or” immediately after

paragraph (c), and

(iii)   

for “, receiver, custodian or appointee” substitute “or

custodian”, and

(b)   

after that subsection, insert—

20

“(9)   

Where the person to whom the information relates lacks

capacity (within the meaning of the Mental Capacity Act

2004) to consent to its disclosure, the appropriate person is—

(a)   

a donee of an enduring power of attorney or lasting

power of attorney (within the meaning of that Act), or

25

(b)   

a deputy appointed for him, or any other person

authorised, by the Court of Protection,

   

with power in that respect.”.

Social Security Administration Act 1992 (c. 5)

33         

In section 123 of the Social Security Administration Act 1992 (c. 5)

30

(unauthorised disclosure of information)—

(a)   

in subsection (10), omit—

(i)   

in paragraph (b), “a receiver appointed under section 99 of

the Mental Health Act 1983 or”,

(ii)   

in paragraph (d)(i), “sub-paragraph (a) of rule 41(1) of the

35

Court of Protection Rules 1984 or”,

(iii)   

in paragraph (d)(ii), “a receiver ad interim appointed under

sub-paragraph (b) of the said rule 41(1) or”, and

(iv)   

“receiver,”, and

(b)   

after that subsection, insert—

40

“(11)   

Where the person to whom the information relates lacks

capacity (within the meaning of the Mental Capacity Act

2004) to consent to its disclosure, the appropriate person is—

(a)   

a donee of an enduring power of attorney or lasting

power of attorney (within the meaning of that Act), or

45

 

 

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments

75

 

(b)   

a deputy appointed for him, or any other person

authorised, by the Court of Protection,

   

with power in that respect.”.

Judicial Pensions and Retirement Act 1993 (c. 8)

34    (1)  

The Judicial Pensions and Retirement Act 1993 (c. 8) is amended as follows.

5

      (2)  

In Schedule 1 (qualifying judicial offices), in Part 2, under the cross-heading

“Court officers”, omit the reference to a Master of the Court of Protection

except in the case of a person holding that office immediately before the

commencement of this sub-paragraph or who had previously retired from

that office or died.

10

      (3)  

In Schedule 5 (retirement: the relevant offices), omit the entries relating to

the Master and Deputy or temporary Master of the Court of Protection,

except in the case of a person holding any of those offices immediately

before the commencement of this sub-paragraph.

      (4)  

In Schedule 7 (retirement: transitional provisions), omit paragraph 5(5)(i)(g)

15

except in the case of a person holding office as a deputy or temporary Master

of the Court of Protection immediately before the commencement of this

sub-paragraph.

Leasehold Reform, Housing and Urban Development Act 1993 (c. 28)

35    (1)  

For paragraph 4 of Schedule 2 to the Leasehold Reform, Housing and Urban

20

Development Act 1993 (c. 28) (landlord under a disability), substitute—

“4    (1)  

This paragraph applies where a Chapter I or Chapter II landlord

lacks capacity (within the meaning of the Mental Capacity Act

2004) to exercise his functions as a landlord.

      (2)  

For the purposes of the Chapter concerned, the landlord’s place is

25

to be taken—

(a)   

by a donee of an enduring power of attorney or lasting

power of attorney (within the meaning of the 2004 Act), or

a deputy appointed for him by the Court of Protection,

with power to exercise those functions, or

30

(b)   

if no deputy or donee has that power, by a person

authorised in that respect by that court.”.

      (2)  

That amendment does not affect any proceedings pending at the

commencement of this paragraph in which a receiver or a person authorised

under Part 7 of the Mental Health Act 1983 (c. 20) is acting on behalf of the

35

landlord.

Goods Vehicles (Licensing of Operators) Act 1995 (c. 23)

36    (1)  

The Goods Vehicles (Licensing of Operators) Act 1995 (c. 23) is amended as

follows.

      (2)  

In section 16(5) (termination of licence), for “he becomes a patient within the

40

meaning of Part VII of the Mental Health Act 1983” substitute “he becomes

a person who lacks capacity (within the meaning of the Mental Capacity Act

2004) to use a vehicle under the licence”.

      (3)  

In section 48 (licence not to be transferable, etc.)—

(a)   

in subsection (2)—

45

 

 

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments

76

 

(i)   

for “or become a patient within the meaning of Part VII of the

Mental Health Act 1983” substitute “, or become a person

who lacks capacity (within the meaning of the Mental

Capacity Act 2004) to use a vehicle under the licence,”, and

(ii)   

in paragraph (a), for “became a patient” substitute “became a

5

person who lacked capacity in that respect”, and

(b)   

in subsection (5), for “a patient within the meaning of Part VII of the

Mental Health Act 1983” substitute “a person lacking capacity”.

Disability Discrimination Act 1995 (c. 50)

37         

In section 20(7) of the Disability Discrimination Act 1995 (c. 50) (regulations

10

to disapply provisions about incapacity), in paragraph (b), for “Part VII of

the Mental Health Act 1983” substitute “the Mental Capacity Act 2004”.

Trusts of Land and Appointment of Trustees Act 1996 (c. 47)

38    (1)  

The Trusts of Land and Appointment of Trustees Act 1996 (c. 47) is amended

as follows.

15

      (2)  

In section 9 (delegation by trustees), in subsection (6), for the words from “an

enduring power” to the end substitute “an enduring power of attorney or

lasting power of attorney within the meaning of the Mental Capacity Act

2004”.

      (3)  

In section 20 (the title to which becomes “Appointment of substitute for

20

trustee who lacks capacity”)—

(a)   

in subsection (1)(a), for “is incapable by reason of mental disorder of

exercising” substitute “lacks capacity (within the meaning of the

Mental Capacity Act 2004) to exercise”, and

(b)   

in subsection (2)—

25

(i)   

for paragraph (a) substitute—

“(a)   

a deputy appointed for the trustee by the

Court of Protection,”,

(ii)   

in paragraph (b), for the words from “a power of attorney” to

the end substitute “an enduring power of attorney or lasting

30

power of attorney registered under the Mental Capacity Act

2004”, and

(iii)   

in paragraph (c), for the words from “the authority” to the

end substitute “the Court of Protection”.

Human Rights Act 1998 (c. 42)

35

39         

In section 4(5) of the Human Rights Act 1998 (c. 42) (courts which may make

declarations of incompatibility), after paragraph (e) insert—

“(f)   

the Court of Protection, in any matter being dealt with by the

President of the Family Division, the Vice-Chancellor or a

puisne judge of the High Court.”

40

Access to Justice Act 1999 (c. 22)

40         

In paragraph 1 of Schedule 2 to the Access to Justice Act 1999 (c. 22) (services

excluded from the Community Legal Service), after paragraph (e) insert—

“(ea)   

the creation of lasting powers of attorney under the Mental

Capacity Act 2004,

45

 

 

Mental Capacity Bill
Schedule 7 — Repeals

77

 

(eb)   

the making of advance decisions under that Act,”.

Adoption and Children Act 2002 (c. 38)

41         

In section 52(1)(a) of the Adoption and Children Act 2002 (c. 38) (parental

consent to adoption), for “is incapable of giving consent” substitute “lacks

capacity (within the meaning of the Mental Capacity Act 2004) to give

5

consent”.

Licensing Act 2003 (c. 17)

42    (1)  

The Licensing Act 2003 (c.17) is amended as follows.

      (2)  

In section 27(1) of the Licensing Act 2003 (c. 17) (lapse of premises licence),

for paragraph (b) substitute—

10

“(b)   

becomes a person who lacks capacity (within the meaning of

the Mental Capacity Act 2004) to hold the licence,”.

      (3)  

In section 47 (interim authority notice in relation to premises licence)—

(a)   

in subsection (5), for paragraph (b) substitute—

“(b)   

the former holder lacks capacity (within the meaning

15

of the Mental Capacity Act 2004) to hold the licence

and that person acts for him under an enduring

power of attorney or lasting power of attorney

registered under that Act,”, and

(b)   

in subsection (10), omit the definition of “mentally incapable”.

20

Courts Act 2003 (c. 39)

43    (1)  

The Courts Act 2003 (c. 39) is amended as follows.

      (2)  

In section 1(1) (the courts in relation to which the Lord Chancellor must

discharge his general duty), after paragraph (a) insert—

“(aa)   

the Court of Protection,”.

25

      (3)  

In section 64(2) (judicial titles which the Lord Chancellor may by order

alter)—

(a)   

omit the reference to a Master of the Court of Protection, and

(b)   

at the appropriate place insert a reference to each of the following—

(i)   

Senior Judge of the Court of Protection,

30

(ii)   

President of the Court of Protection,

(iii)   

Vice-president of the Court of Protection.

Schedule 7

Section 63(2)

 

Repeals

 

Short title and chapter

Extent of repeal

 

35

 

Trustee Act 1925 (c. 19)

Section 54(3).

 
 

Law of Property Act 1925 (c. 20)

Section 205(1)(xiii).

 
 

Administration of Estates Act

Section 55(1)(viii)

 
 

1925 (c. 23)

  
 

 

Mental Capacity Bill
Schedule 7 — Repeals

78

 
 

Short title and chapter

Extent of repeal

 
 

National Assistance Act 1948

Section 48(1)(c).

 
 

(c. 29)

  
 

U.S.A. Veterans’ Pensions

In section 1(4), the words from “or for whom” to

 
 

(Administration) Act 1949

“1983”.

 

5

 

(c. 45)

  
 

Mental Health Act 1959 (c. 72)

In Schedule 7, in Part I, the entries relating to—

 
  

section 33 of the Fines and Recoveries Act

 
  

1833, and

 
  

section 205(1) of the Law of Property Act

 

10

  

1925.

 
 

Courts Act 1971 (c. 23)

In Schedule 2, in Part 1A, the words “Master of

 
  

the Court of Protection”.

 
 

Sale of Goods Act 1979 (c. 54)

In section 3(2) the words “mental incapacity or”.

 
 

Limitation Act 1980 (c. 58)

Section 38(3) and (4).

 

15

 

Supreme Court Act 1981 (c. 54)

In Schedule 2, in Part 2, paragraph 11.

 
 

Mental Health Act 1983 (c. 20)

Part 7.

 
  

In section 139(1) the words from “or in, or in

 
  

pursuance” to “Part VII of this Act,”.

 
  

In section 145(1), in the definition of “patient”

 

20

  

the words “(except in Part VII)”.

 
  

In sections 146 and 147 the words from “104(4)”

 
  

to “section),”.

 
  

Schedule 3.

 
  

In Schedule 4, paragraphs 1, 2, 4, 5, 7, 9, 14, 20,

 

25

  

22, 25, 37, 38, 55 and 56.

 
  

In Schedule 5, paragraphs 26, 43, 44 and 45.

 
 

Enduring Powers of Attorney

The whole Act.

 
 

Act 1985 (c. 29)

  
 

Insolvency Act 1986 (c. 45)

In section 389A(3)—

 

30

  

the “or” immediately after paragraph (b), and

 
  

in paragraph (c), the words “Part VII of the

 
  

Mental Health Act 1983 or”.

 
  

In section 390(4)—

 
  

the “or” immediately after paragraph (b), and

 

35

  

in paragraph (c), the words “Part VII of the

 
  

Mental Health Act 1983 or”.

 
    
 

Public Trustee and

Section 2.

 
 

Administration of Funds Act

Section 3(7).

 

40

 

Child Support Act 1991 (c. 48)

In section 50(8)—

 
  

paragraphs (b) and (d), and

 
  

the “or” immediately after paragraph (c).

 
 

 

Mental Capacity Bill
Schedule 7 — Repeals

79

 
 

Short title and chapter

Extent of repeal

 
 

Social Security Administration

In section 123(10)—

 
 

Act 1992 (c. 5)

in paragraph (b), “a receiver appointed under

 
  

section 99 of the Mental Health Act 1983 or”,

 
  

in paragraph (d)(i), “sub-paragraph (a) of rule

 

5

  

41(1) of the Court of Protection Rules Act 1984

 
  

or”,

 
  

in paragraph (d)(ii), “a receiver ad interim

 
  

appointed under sub-paragraph (b) of the

 
  

said rule 41(1) or”, and

 

10

  

“receiver,”.

 
 

Trustee Delegation Act 1999

Section 4.

 
 

(c. 15)

Section 6.

 
  

In section 7(3), the words “in accordance with

 
  

section 4 above”.

 

15

 

Care Standards Act 2000 (c. 14)

In Schedule 4, paragraph 8.

 
 

Licensing Act 2003 (c. 17)

In section 47(10), the definition of “mentally

 
  

incapable”.

 
 

Courts Act 2003 (c. 64)

In section 64(2), the words “Master of the Court

 
  

of Protection”.

 

20

 

 

 
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