House of Commons - Explanatory Note
Mental Capacity Bill - continued          House of Commons

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Clause 9: Lasting powers of attorney

40.     Clauses 9-14 create a new statutory form of power of attorney, the "lasting power of attorney" or LPA. These will take the place of the "enduring powers of attorney" or EPAs currently provided for by the Enduring Powers of Attorney Act 1985. The 1985 Act will be repealed on implementation of the Bill, but the legal effect of EPAs already made under the current law is preserved and integrated into the scheme of the Bill by clause 62(3) and Schedule 4.

41.     Clause 9 sets out the key aspects of an LPA. Unlike an EPA, it can extend to personal welfare matters ((subsection (1)(a)) as well as to property and affairs. By making an LPA, an individual (the donor) confers on another individual or individuals (donee/s) authority to make decisions about personal welfare and/or his property and affairs or specified matters concerning those areas. Power to make decisions, includes, by virtue of clause 60(2), acting on decisions made where appropriate.

42.     Subsection (1) also makes clear that to be an LPA this authority must include authority to make decisions when the donor no longer has capacity to make those decisions himself. An LPA can, in certain circumstances, operate as an 'ordinary' power of attorney when the donor has full mental capacity but will also continue to operate after the donor has lost capacity.

43.     Subsection (2) deals with the creation of an LPA. The donor must be aged 18 or over and have capacity to execute an LPA. The rules about who can be a donee in clause 10 must be complied with. Detailed provisions about the making and registration of the instrument, as set out in Schedule 1, must be complied with. If the rules are not complied with the document created will not be a valid LPA and could not be lawfully used to make decisions on behalf of the donor (subsection (3)).

44.     Subsection (4) reiterates that any donee must act in the donor's best interests. A donee's authority is also subject to any conditions or restrictions that the donor may choose to put in the LPA document itself.

Clause 10: Appointment of donees

45.     This sets out certain requirements relating to donees and how they should act. A donee must be aged 18 or over. Someone who is bankrupt cannot be appointed as the donee of an LPA relating to property and affairs. If the LPA relates only to property and affairs, the donee can be either an individual or a trust corporation.

      Trust corporatio
    n is defined in the Trustee Act 1925, section 68 (1) as the Public Trustee or a corporation either appointed by the court in any particular case to be a trustee, or entitled by rules made under subsection (3) of section four of the Public Trustee Act 1906, to act as custodian trustee.

46.     Subsection (4) provides that where two or more people are appointed as donees, they may be appointed either to act jointly (so that they must all join together in any decision) or to act jointly and severally (which means they can act independently or all together). If the donor does not specify, then it will be assumed that they are appointed to act jointly (subsection (5)).

47.     For joint attorneys, any breach of the relevant rules about how lasting powers of attorney are made will prevent a valid LPA being created (subsection (6)). For "joint and several" attorneys, a breach only affects the attorney who is in breach; a valid LPA is still created in respect of the other donee(s) (subsection (7)).

48.     Subsection (8) allows a donor to provide for the replacement of the donee(s) on the occurrence of specified events which would normally terminate a donee's powers. These events are the donee renouncing his appointment, the donee's death, bankruptcy or winding-up, or dissolution in the case of a donee who is a trust corporation, the dissolution or annulment of a marriage or civil partnership between the donor and the donee or the lack of capacity of the donee. For example, an older donor might wish to appoint his spouse, but nominate a son or daughter as a replacement donee. A donee cannot be given power to choose a successor (subsection (8)(a)) as this would be inconsistent with the core principle that the donor is giving authority to a chosen attorney. A civil partnership is a registered relationship between two people of the same sex which ends only on death, dissolution or annulment, as provided for in the Civil Partnership Bill currently before Parliament.

Clause 11: Lasting powers of attorney: restrictions

49.     Subsections (1)-(4) place restrictions on the use of restraint by attorneys, matching those applying in relation to "section 5 acts" (see clause 6) and deputies (see clause 20). Restraint can only be used to prevent harm to P, and must be proportionate.

50.     Further restrictions are set out in subsection (6). An attorney cannot act where P has capacity, nor where P has made a qualifying advance decision (see clauses 24-26). Paragraph (c) has to be read with subsection (7). Thus, although an attorney may give or refuse consent to the carrying out or continuation of health care, this would not extend to refusing life-sustaining treatment unless the LPA expressly said so, and is subject to any conditions or restrictions in the LPA.

Clause 12: Scope of LPAs: gifts

51.     This is similar to section 3(5) of the Enduring Powers of Attorney Act 1985and deals with an attorney's power to make gifts of the donor's property. The attorney can only do something that is in the donor's best interests but this clause operates as a specific restriction in relation to gifts. It allows modest gifts proportionate to the donor's assets to people related or connected to the donor (including himself) on "customary occasions", as defined; and to charities (subject to any conditions or restrictions in the LPA itself). The court has power to authorise more substantial gifts (see clause 23(4)) if satisfied this would be in P's best interests. For example, if an older person has substantial assets then tax planning might be a reason for the making of gifts.

Clause 13: Revocation of LPAs

52.     This deals with the ways in which LPAs may cease to be effective, whether before or after registration. A donor can revoke an LPA at any time while he has capacity to do so (subsection (2)). Other events will automatically terminate an LPA.

53.     The bankruptcy of either the donor or the attorney will terminate any financial powers granted. (Clause 60(3) provides that all references to the bankruptcy of an individual include a case where a bankruptcy restrictions order is in force in respect of him. Bankruptcy restrictions orders are provided for in Schedule 4A to the Insolvency Act 1986 (1986 c. 45)). Interim bankruptcy restrictions orders do not bring a power of attorney to an end; they just have a suspensive effect (subsections (4) and (9)).

54.     An LPA also comes to an end if the donee disclaims, dies or loses capacity. The dissolution or annulment of a marriage or civil partnership between the donee and the donor will terminate the attorney's powers unless the donor has specified that it should not (subsection (11)).

55.     Subsections (7) and (10) provide for situations where there is a replacement or a "joint and several" attorney who can continue to act.

Clause 14: Protection of donee and others if no power created or power revoked

56.     This addresses the legal consequences when a registered LPA later turns out to be invalid. There is similar provision in relation to EPAs in section 9 of the 1985 Act. Broadly, both attorneys and third parties are given protection from liability if they were unaware that the LPA was invalid or had come to an end.

Clause 15: Power to make declarations

57.     This gives the court power to make declarations, if necessary, about whether an individual has capacity, either in relation to a specific decision that needs to be made, or in relation to decisions on such matters as are described in the declaration. It also gives the court power to make declarations about whether an act or proposed act was or would be lawful. The Court of Protection would have this latter power as a superior court of record which under clause 45 has the same powers, rights, privileges and authority as the High Court, but it is considered helpful to spell this out. Subsection (2) confirms that the court can be asked to adjudicate on omissions to act (for example, the withholding or withdrawing of medical treatment) and also a course of conduct.

Clause 16: Powers to make decisions and appoint deputies: general

58.     This sets out the core jurisdiction of the court, which is (1) to make substitute decisions about personal welfare or property and affairs for persons lacking capacity, or (2) to appoint a deputy to do so.

59.     Subsection (3) confirms that the best interests principle and the checklist will govern the court's exercise of its powers.

60.     Subsection (4) requires the court to consider two additional principles, further emphasising the "least restrictive intervention" principle mentioned in clause 1(6). The first additional principle is that a decision of the court is preferable to the appointment of a deputy and the second is that, if a deputy is appointed, the appointment should be as limited in scope and duration as is reasonably practicable in the circumstances. In welfare (including healthcare) matters a deputy is never required in order for care or treatment to be given to a person because clause 5 provides sufficient scope for carers and professionals to act. Nevertheless, a deputy may be helpful particularly in cases of dispute. For matters concerning property and affairs, a deputy may be needed in order to provide the authority to deal with contractual matters and where there is an on-going need for such decisions to be taken. Subsection (6) gives the court an "own motion" power to make whatever order is in the person's best interests.

61.     The court can always vary or discharge its orders and subsection (8) clarifies that it has power to take away or alter a deputy's powers if the deputy is overstepping his powers or not adhering to his 'best interests' obligations.

Clause 17: Section 16 powers: Personal welfare

62.     The powers created by clause 16 in relation to making orders and appointing deputies will extend to a wide-range of personal welfare issues. Particular mention is made in this clause of issues which have arisen in the past and been dealt with by the High Court in the exercise of its inherent jurisdiction and may be most likely to arise in future. This is not an exhaustive, merely an indicative, list. It is not a list of decisions that must always go to court, rather it provides examples of where the court can act if it would be appropriate, and beneficial to the person, for the court to do so. There are restrictions on what may be delegated to a deputy, set out in clause 20(2).

Clause 18: Section 16 powers: Property and affairs

63.     Subsection (1) indicates the extent of the court's powers with regard to property and affairs. Again it provides a non-exhaustive, indicative list of the matters within the powers relating to property and affairs. This largely reproduces the list which applies to the current Court of Protection in section 96 of the Mental Health Act 1983. Again, this is not a list of matters which must always go to the Court of Protection but rather an indication of the types of order the court might make if an application is made. Where property and financial matters are concerned the effect of the general law relating to contract and property will often be to create a need for formal powers. So if P has lost capacity to enter into a contract for the sale of his house no purchaser is going to accept a contract or Land Registry transfer document signed by someone who is not the registered owner. The proposed purchaser will need to see a document proving that someone else has formal authority to contract to sell and transfer the property on his behalf. Equally, P's bank will be bound by the terms of its contract with P not to hand P's money over to someone else. If P can no longer give a valid instruction or valid receipt to the bank then his money will have to be held by the bank until formal authority is provided. If a valid power of attorney exists then this would probably remove any need for the Court of Protection to make orders. Again, not all of the powers can be given to deputies (see clause 20(3)). These correspond to matters which, under the current law, always have to be dealt with by the court itself.

Clause 19: Appointment of deputies

64.     This deals with deputies appointed by the court. The general rule is that a deputy must be at least 18 years of age. If a trust corporation is appointed deputy it can only be in respect of property and affairs. The court may appoint the holder of a specified office as deputy (this is different to LPAs where the attorney must be an individual). Before any person is appointed deputy he or she must consent to being appointed. The court will be able to appoint more than one deputy to act on behalf of an individual who lacks capacity and these deputies can either act jointly or jointly and severally. That is, the court can specify either that they must all act together or that each can act independently of the other. When appointing a deputy, the court will also have the power to appoint a successor or successors to the original appointees. The court will specify the circumstances under which this could occur.

65.     Subsection (6) provides that a deputy will be treated as an "agent" of the adult who lacks capacity. The law of agency imposes a range of duties on those who act as agents for someone else and it is important to impose these duties on deputies. For example, an agent must act with "due care and skill" and is bound by fiduciary duties. Case law has established that receivers appointed by the current Court of Protection under Part 7 of the Mental Health Act 1983 are agents but it is considered helpful to make statutory provision to that effect in relation to deputies.

66.     All deputies will be able to claim reasonable expenses from the estate of the adult lacking capacity and if the court directs, the deputy can be paid for his services from the estate. The court will be able to give a deputy the power to deal with all matters concerning the control and management of any property belonging to the adult lacking capacity, including being able to invest. The court will also be able to require a deputy to give the Public Guardian security against misbehaviour (that is, either a deposit of money or a guarantee bond) and to direct the deputy to file with the Public Guardian reports and accounts as it sees fit. These provisions are broadly in line with current arrangements in the Court of Protection (Mental Health Act 1983, Part 7).

Clause 20: Restrictions on deputies

67.     This sets a number of limitations on the powers of deputies. Subsection (1) specifies that a deputy cannot act where P is able to act for himself. In some cases P may have fluctuating capacity, for example as a result of mental health problems, and it is not acceptable for a deputy to carry on making substitute decisions when P has in fact recovered. Subsection (7) reiterates that a deputy must act in P's best interests (see also clause 1(5) and clause 4).

68.     Subsections (2) and(3) relate back to clauses 16-18 and list certain matters which must always be dealt with by the court, not a deputy. The powers to prohibit a person from having contact with the adult lacking capacity or to direct a person responsible for the health care of the person lacking capacity to allow a different person to take over the health care are obviously powers which have to be exercised by the court itself. As under the current law, deputies will also be restricted from making certain financial decisions in connection with wills and trusts.

69.     Subsection (4) makes it clear that a deputy cannot be given power to "trump" an attorney (who will have been chosen by P himself, at a time when he had capacity). If there is a concern or a dispute about the way an attorney is behaving the court must use its powers in clauses 22-23, rather than seeking to appoint a deputy.

70.     Subsections (5)and(6) restrict deputies from refusing consent to the carrying out or continuation of life-sustaining treatment without the express authority of the court, which is only to be given if the circumstances are exceptional. An example of such an exceptional circumstance might be where P has a complex and terminal medical condition and two family members are in dispute about who should determine which treatment options should be accepted or rejected at a particular stage. The court may decide that it can trust one family member to co-operate with medical staff in P's best interests, but not the other. In those exceptional circumstances, it may see no benefit to anyone in a later return to court and may appoint the suitable family member with express powers.

71.     Subsections (8) and(12) impose limitations on deputies in relation to restraint, matching those imposed in relation to "section 5 acts" by clause 6 and on attorneys by clause 11. A deputy will have to be acting within the scope of an authority expressly conferred on him by the court. Restraint can only be used to prevent harm to P and must be proportionate.

Clause 21: Transfer of proceedings relating to people under 18

72.     The Bill deals with people aged 16 and over (and with the property of younger children - see clause 18(3)), while the Children Act deals with people under the age of 18. There will be some overlap between the jurisdictions and the Lord Chancellor is therefore given power by this clause to make transfer of proceedings orders. It is intended that the order will indicate that a case should be transferred to the court most suitable to deal with the issues. One factor is likely to be the prospect of a person under 18 who is the subject of a dispute still lacking capacity when an adult. For example, if the parents of a 17-year old with profound learning difficulties are in dispute about residence or contact then it may be more appropriate for the Court of Protection to deal with the case, since an order made under the Children Act 1989 would expire on the child's 18th birthday at the latest.

Powers of the court in relation to lasting powers of attorney

Clause 22: Powers of court in relation to validity of LPAs

73.     This clause and clause 23 set out what the Court of Protection can do in relation to LPAs. The powers are similar to those in section 8 of the 1985 Act, except that administrative functions connected with registration will be performed by the Public Guardian.

74.     The court can determine questions about validity and revocation (subsection (2)). It can direct that an instrument should not be registered, or (if it is unregistered) revoke it on the grounds set out in subsection (3)- fraud or undue pressure, or misbehaviour by the attorney.

75.     Subsection (5) provides that where there is more than one donee the court may revoke the instrument or the LPA so far as it relates to any of them.

Clause 23: Powers of court in relation to operation of LPAs

76.     This allows the court to decide questions about the meaning or effect of an LPA and to give directions to attorneys where the donor lacks capacity. The court may also give the attorney directions about producing reports, accounts, records and information and about his remuneration and expenses. The court has power to relieve a donee from some or all of the liabilities arising from a breach of duty (cf 1985 Act, section 8(2)(f)). It may also authorise gifts beyond the scope of what is permitted by clause 12(2) (for example, for tax planning purposes).

Advance decisions to refuse treatment

Clause 24: Advance decisions to refuse treatment: general

77.     Clauses 24-26 deal with advance decisions to refuse treatment. Some people already choose to make such decisions and their legal effect has been analysed in a number of judicial decisions. It has recently been confirmed by the High Court that a competent adult patient's anticipatory refusal of consent remains binding and effective notwithstanding that the patient has subsequently become incompetent (HE v NHS Trust A and AE [2003] EWHC 1017 (Fam), a case concerning a refusal of blood transfusion). Broadly, the clauses seek to codify and clarify the current common law rules, integrating them into the broader scheme of the Bill. There would otherwise be a lacuna in the scheme of the Bill and the powers of the new court. Many general forms of advance statement or "living will" will be important and relevant as "past wishes" of the person for the purposes of the best interests checklist in clause 4. An "advance decision" as defined in these clauses is a special type of advance statement that represents an actual decision made to refuse treatment by P, albeit at an earlier date. As now, it will therefore be decisive in certain circumstances.

78.     The key characteristics of an "advance decision" for the purposes of the Bill are set out in subsection (1) of this clause. It must be made by a person who is 18 or over and at a time when the person has capacity to make it. A qualifying advance decision must specify the treatment being refused, although this can be in lay terms, for example using "tummy" instead of stomach. It may specify particular circumstances, again in lay terms, in which the refusal will apply. A person can change or completely withdraw the advance decision if he has capacity to do so (subsection (3)).

Clause 25: Validity and applicability of advance decisions

79.     This introduces the two important safeguards of "validity" and "applicability" in relation to advance decisions to refuse treatment.

80.     To be valid the advance decision must not have been withdrawn, nor overridden by a subsequent LPA giving a donee the authority to consent, or refuse consent, to the treatment (other LPAs will not override - see subsection (6)). Also, if the person has acted in a way that is clearly inconsistent with the advance decision remaining his fixed decision, then the advance decision is invalid. An example of an inconsistent action might be a former Jehovah's Witness converting to Islam and marrying a Muslim man. Even if she had forgotten to destroy a written advance decision refusing blood transfusion, her actions could be taken into account in determining whether that earlier refusal remained her fixed decision.

81.     An advance decision will not be applicable if the person actually has capacity to make the decision at the particular time. It will also not be applicable to treatments not specified in the decision or if the circumstances are not those specified in the decision. Furthermore the decision will not be applicable if there are reasonable grounds for believing that the current circumstances were not anticipated by P and, if they had been anticipated by P would have affected his decision. For example, there may be new medications available that radically change the outlook for a particular condition and make treatment much less burdensome than was previously the case.

82.     Subsection (5) introduces another rule about applicability. An advance decision will not apply to life-sustaining treatment unless P specified that it should.

Clause 26: Effect of advance decisions

83.     This deals with the legal effect of a qualifying advance decision. If it is both valid and applicable it has the same effect as a contemporaneous refusal of treatment by a person with capacity. That is, the treatment cannot lawfully be given. If given, the person refusing would be able to claim damages for the tort of battery and the treatment-provider might face criminal liability for assault. Subsections (2)-(3) clarify the rules about liability. A treatment-provider may safely treat unless satisfied that there is a valid and applicable qualifying advance refusal; and a treatment-provider may safely withhold or withdraw treatment as long as he has reasonable grounds for believing that there is a valid and applicable qualifying advance decision.

84.     If there is doubt or a dispute about the existence, validity or applicability of an advance decision then the court can determine the issue. There is an important proviso to the general rule that an advance refusal is legally effective. There may be a doubt or dispute about whether a particular refusal is in fact one which meets all the tests (existence, validity and applicability). As with decisions by donees or deputies in clause 6(6), action may be taken to prevent the death of the person concerned, or a serious deterioration in his condition, whilst any such doubt or dispute is referred to the court.

Excluded decisions

Clause 27: Family relationships etc.

85.     This lists certain decisions that can never be made under the Bill on behalf of a person who lacks capacity. For example, in relation to adoption, if a birth parent lacks capacity to consent to an adoption order the rules as to dispensing with consent in the adoption legislation will apply. There will be no question of an attorney consenting, nor of the Court of Protection making an order or appointing a deputy to provide the requisite consent.

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Prepared: 18 June 2004