Mental Capacity Bill

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
75

Administration of Justice Act 1985 (c. 61)
30
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)
31    (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
32
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)
33
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
76

(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)
34    (1)
The Courts and Legal Services Act 1990 (c. 41) is amended as follows.
5
      (2)
In Schedule 11 (judges etc. 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,
10
(c)
Vice-President of the Court of Protection.
      (3)
In paragraph 5(3) of Schedule 14 (exercise of powers of intervention in
registered foreign lawyer’s practice), for paragraph (f) substitute—
“(f)
he lacks capacity (within the meaning of the Mental
Capacity Act 2004) to act as a registered foreign lawyer and
15
powers under sections 15 to 20 or section 46 are exercisable
in relation to him;”.
Child Support Act 1991 (c. 48)
35
In section 50 of the Child Support Act 1991 (c. 48) (unauthorised disclosure
of information)—
20
(a)
in subsection (8)—
(i)
immediately after paragraph (a), insert “or”,
(ii)
omit paragraphs (b) and (d) and the “or” immediately after
paragraph (c), and
(iii)
for “, receiver, custodian or appointee” substitute “or
25
custodian”, and
(b)
after that subsection, insert—
“(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—
30
(a)
a donee of an enduring power of attorney or lasting
power of attorney (within the meaning of that Act), or
(b)
a deputy appointed for him, or any other person
authorised, by the Court of Protection,

with power in that respect.”.
35
Social Security Administration Act 1992 (c. 5)
36
In section 123 of the Social Security Administration Act 1992 (c. 5)
(unauthorised disclosure of information)—
(a)
in subsection (10), omit—
(i)
in paragraph (b), “a receiver appointed under section 99 of
40
the Mental Health Act 1983 or”,
(ii)
in paragraph (d)(i), “sub-paragraph (a) of rule 41(1) of the
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
45

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
77

(iv)
“receiver,”, and
(b)
after that subsection, insert—
“(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—
5
(a)
a donee of an enduring power of attorney or lasting
power of attorney (within the meaning of that Act), or
(b)
a deputy appointed for him, or any other person
authorised, by the Court of Protection,

with power in that respect.”.
10
Judicial Pensions and Retirement Act 1993 (c. 8)
37    (1)
The Judicial Pensions and Retirement Act 1993 (c. 8) is amended as follows.
      (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
15
commencement of this sub-paragraph or who had previously retired from
that office or died.
      (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
20
before the commencement of this sub-paragraph.
      (4)
In Schedule 7 (retirement: transitional provisions), omit paragraph 5(5)(i)(g)
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.
25
Leasehold Reform, Housing and Urban Development Act 1993 (c. 28)
38    (1)
For paragraph 4 of Schedule 2 to the Leasehold Reform, Housing and Urban
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
30
2004) to exercise his functions as a landlord.
      (2)
For the purposes of the Chapter concerned, the landlord’s place is
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
35
a deputy appointed for him by the Court of Protection,
with power to exercise those functions, or
(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
40
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
landlord.

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
78

Goods Vehicles (Licensing of Operators) Act 1995 (c. 23)
39    (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
meaning of Part VII of the Mental Health Act 1983” substitute “he becomes
5
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)—
(i)
for “or become a patient within the meaning of Part VII of the
10
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
person who lacked capacity in that respect”, and
15
(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)
40
In section 20(7) of the Disability Discrimination Act 1995 (c. 50) (regulations
to disapply provisions about incapacity), in paragraph (b), for “Part VII of
20
the Mental Health Act 1983” substitute “the Mental Capacity Act 2004”.
Trusts of Land and Appointment of Trustees Act 1996 (c. 47)
41    (1)
The Trusts of Land and Appointment of Trustees Act 1996 (c. 47) is amended
as follows.
      (2)
In section 9 (delegation by trustees), in subsection (6), for the words from “an
25
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
trustee who lacks capacity”)—
30
(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)—
(i)
for paragraph (a) substitute—
35
“(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
power of attorney registered under the Mental Capacity Act
40
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)
42
In section 4(5) of the Human Rights Act 1998 (c. 42) (courts which may make
45

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
79

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.”
Access to Justice Act 1999 (c. 22)
5
43
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,
(eb)
the making of advance decisions under that Act,”.
10
Adoption and Children Act 2002 (c. 38)
44
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
consent”.
15
Licensing Act 2003 (c. 17)
45    (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—
“(b)
becomes a person who lacks capacity (within the meaning of
20
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
of the Mental Capacity Act 2004) to hold the licence
25
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”.
Courts Act 2003 (c. 39)
30
46    (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,”.
      (3)
In section 64(2) (judicial titles which the Lord Chancellor may by order
35
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,
(ii)
President of the Court of Protection,
40
(iii)
Vice-president of the Court of Protection.