|
| |
|
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 |
| |
| 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. |
| |
| 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. |
| |
| |
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. |
| |
| |
Recognition and enforcement |
| |
| 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 |
| |
| |
(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 |
| |
| |
(3) | But the court may disapply this paragraph in relation to a measure if it |
| |
| 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 |
| |
(b) | the measure would be inconsistent with a mandatory provision of |
| |
the law of England and Wales, or |
| |
|
| |
|
| |
|
(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 |
| |
22 | For the purposes of paragraphs 20 and 21, any finding of fact relied on when |
| |
the measure was taken is conclusive. |
| |
| |
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 |
| |
(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 |
| |
| |
(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 |
| |
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 |
| |
|
| |
|
| |
|
| |
| |
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 |
| |
| |
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. |
| |
| 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 |
| |
(2) | The public authority must tell an appropriate authority in that other country |
| |
| |
| |
(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 |
| |
| |
| |
| |
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 |
| |
| |
|
| |
|
| |
|
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. |
| |
| |
(a) | confer functions on the court or another public authority; |
| 10 |
| |
(c) | provide for this Schedule to apply with specified modifications; |
| |
(d) | make provision about countries other than Convention countries. |
| |
| |
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 |
| |
| |
| |
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. |
| |
| |
36 | The following provisions of this Schedule have effect only if the Convention |
| |
is in force in accordance with Article 57— |
| |
| 25 |
| |
(c) | paragraph 20(2) and (5), |
| |
| |
| |
| 30 |
| |
Provisions applying to existing enduring powers of attorney |
| |
| |
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, |
| |
|
| |
|
| |
|
(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 |
| |
| |
| 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 |
| |
(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 |
| |
| 25 |
(a) | is in the prescribed form, |
| |
(b) | was executed in the prescribed manner by the donor and the |
| |
| |
(c) | incorporated at the time of execution by the donor the prescribed |
| |
| 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 |
| |
| |
(b) | the Enduring Powers of Attorney (Prescribed Form) Regulations |
| 35 |
| |
(c) | the Enduring Powers of Attorney (Prescribed Form) Regulations |
| |
| |
(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 |
| |
| |
(5) | A power of attorney cannot be an enduring power unless, when he executes |
| |
the instrument creating it, the attorney is— |
| |
|
| |
|
| |
|
(a) | an individual who has reached 18 and is not bankrupt, or |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| 30 |
(b) | he may do whatever the donor might be expected to do to meet those |
| |
| |
(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 |
| |
| |
(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 |
|
| |
|
| |
|
| |
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. |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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. |
| 30 |
| |
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 |
| |
(d) | the donor’s brothers and sisters, whether of the whole or half blood, |
| |
|
| |
|