Mental Capacity Bill

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Part 1 — Persons who lack capacity
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(7)
The cases are—
(a)
the donee is replaced under the terms of the instrument,
(b)
he is one of two or more persons appointed to act as donees jointly and
severally and, after the event, there is at least one remaining donee.
(8)
The bankruptcy of a donee does not terminate his appointment, or revoke the
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power, in so far as his authority relates to P’s personal welfare.
(9)
Where the donee is bankrupt merely because an interim bankruptcy
restrictions order has effect in respect of him, his appointment and the power
are suspended, so far as they relate to P’s property and affairs, for so long as
the order has effect.
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(10)
Where the donee is one of two or more appointed to act jointly and severally
under the power, the reference in subsection (9) to the suspension of the power
is to its suspension in so far as it relates to that donee.
(11)
The dissolution or annulment of a marriage or civil partnership does not
terminate the appointment of a donee, or revoke the power, if the instrument
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provided that it was not to do so.
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Protection of donee and others if no power created or power revoked
(1)
Subsections (2) and (3) apply if—
(a)
an instrument has been registered under Schedule 1 as a lasting power
of attorney, but
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(b)
a lasting power of attorney was not created,

whether or not the registration has been cancelled at the time of the act or
transaction in question.
(2)
A donee who acts in purported exercise of the power does not incur any
liability (to P or any other person) because of the non-existence of the power
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unless at the time of acting he—
(a)
knows that a lasting power of attorney was not created, or
(b)
is aware of events, facts or circumstances which, if a lasting power of
attorney had been created, would have terminated his authority to act
as a donee.
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(3)
Any transaction between the donee and another person is, in favour of that
person, as valid as if the power had been in existence, unless at the time of the
transaction that person has knowledge of a matter referred to in subsection (2).
(4)
If the interest of a purchaser depends on whether a transaction between the
donee and the other person was valid by virtue of subsection (3), it is
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conclusively presumed in favour of the purchaser that the transaction was
valid if—
(a)
the transaction was completed within 12 months of the date on which
the instrument was registered, or
(b)
the other person makes a statutory declaration, before or within 3
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months after the completion of the purchase, that he had no reason at
the time of the transaction to doubt that the donee had authority to
dispose of the property which was the subject of the transaction.
(5)
In its application to a lasting power of attorney which relates to matters in
addition to P’s property and affairs, section 5 of the Powers of Attorney Act
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1971 (c. 27) (protection where power is revoked) has effect as if references to

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Part 1 — Persons who lack capacity
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revocation included the cessation of the power in relation to P’s property and
affairs.
(6)
Where two or more donees are appointed under a lasting power of attorney,
this section applies as if references to the donee were to all or any of them.
General powers of the court and appointment of deputies
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Power to make declarations
(1)
The court may make declarations as to—
(a)
whether a person has or lacks capacity to make a decision specified in
the declaration;
(b)
whether a person has or lacks capacity to make decisions on such
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matters as are described in the declaration;
(c)
the lawfulness or otherwise of any act done, or yet to be done, in
relation to that person.
(2)
“Act” includes an omission and a course of conduct.
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Powers to make decisions and appoint deputies: general
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(1)
This section applies if a person (“P”) lacks capacity in relation to a matter or
matters concerning—
(a)
P’s personal welfare, or
(b)
P’s property and affairs.
(2)
The court may—
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(a)
by making an order, make the decision or decisions on P’s behalf in
relation to the matter or matters, or
(b)
appoint a person (a “deputy”) to make decisions on P’s behalf in
relation to the matter or matters.
(3)
The powers of the court under this section are subject to the provisions of this
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Act and, in particular, to section 4 (best interests).
(4)
When deciding whether it is in P’s best interests to appoint a deputy, the court
must have regard (in addition to the matters mentioned in section 4) to the
principles that—
(a)
a decision by the court is to be preferred to the appointment of a deputy
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to make a decision, and
(b)
the powers conferred on a deputy should be as limited in scope and
duration as is reasonably practicable in the circumstances.
(5)
The court may make such further orders or give such directions, and confer on
a deputy such powers, as it thinks necessary or expedient for giving effect to
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an order or appointment made by it under subsection (2).
(6)
Without prejudice to section 4, the court may make the order, give the
directions or make the appointment on such terms as it considers are in P’s best
interests, even though no application is before the court for an order, directions
or an appointment on those terms.
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(7)
An order of the court may be varied or discharged by a subsequent order.

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Part 1 — Persons who lack capacity
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(8)
The court may, in particular, revoke the appointment of a deputy or vary the
powers conferred on him if it is satisfied that the deputy—
(a)
has behaved, or is behaving, in a way that contravenes the authority
conferred on him by the court or is not in P’s best interests, or
(b)
proposes to behave in a way that would contravene that authority or
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would not be in P’s best interests.
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Section 16 powers: personal welfare
(1)
The powers under section 16 as respects P’s personal welfare extend in
particular to—
(a)
deciding where P is to live;
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(b)
deciding what contact, if any, P is to have with any specified persons;
(c)
making an order prohibiting a named person from having contact with
P;
(d)
giving or refusing consent to the carrying out or continuation of a
treatment by a person providing health care for P;
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(e)
giving a direction that a person responsible for P’s health care allow a
different person to take over that responsibility.
(2)
Subsection (1) is subject to section 20 (restrictions on deputies).
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Section 16 powers: property and affairs
(1)
The powers under section 16 as respects P’s property and affairs extend in
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particular to—
(a)
the control and management of P’s property;
(b)
the sale, exchange, charging, gift or other disposition of P’s property;
(c)
the acquisition of property in P’s name or on P’s behalf;
(d)
the carrying on, on P’s behalf, of any profession, trade or business;
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(e)
the taking of a decision which will have the effect of dissolving a
partnership of which P is a member;
(f)
the carrying out of any contract entered into by P;
(g)
the discharge of P’s debts and of any of P’s obligations, whether legally
enforceable or not;
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(h)
the settlement of any of P’s property, whether for P’s benefit or for the
benefit of others;
(i)
the execution for P of a will;
(j)
the exercise of any power (including a power to consent) vested in P
whether beneficially or as trustee or otherwise;
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(k)
the conduct of legal proceedings in P’s name or on P’s behalf.
(2)
No will may be made under subsection (1)(i) at a time when P has not reached
18.
(3)
The powers under section 16 as respects any other matter relating to P’s
property and affairs may be exercised even though P has not reached 16, if the
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court considers it likely that P will still lack capacity to make decisions in
respect of that matter when he reaches 18.
(4)
Schedule 2 supplements the provisions of this section.

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(5)
Section 16(7) (variation and discharge of court orders) is subject to paragraph
6 of Schedule 2.
(6)
Subsection (1) is subject to section 20 (restrictions on deputies).
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Appointment of deputies
(1)
A deputy appointed by the court must be—
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(a)
an individual who has reached 18, or
(b)
as respects powers in relation to property and affairs, an individual
who has reached 18 or a trust corporation.
(2)
The court may appoint an individual by appointing the holder for the time
being of a specified office or position.
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(3)
A person may not be appointed as a deputy without his consent.
(4)
The court may appoint two or more deputies to act—
(a)
jointly, or
(b)
jointly and severally.
(5)
When appointing a deputy or deputies, the court may at the same time appoint
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one or more other persons to succeed the existing deputy or those deputies—
(a)
in such circumstances, or on the happening of such events, as may be
specified by the court;
(b)
for such period as may be so specified.
(6)
A deputy is to be treated as P’s agent in relation to anything done or decided
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by him within the scope of his appointment and in accordance with this Part.
(7)
The deputy is entitled—
(a)
to be reimbursed out of P’s property for his reasonable expenses in
discharging his functions, and
(b)
if the court so directs when appointing him, to remuneration out of P’s
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property for discharging them.
(8)
The court may confer on a deputy powers to—
(a)
take possession or control of all or any specified part of P’s property;
(b)
exercise all or any specified powers in respect of it, including such
powers of investment as the court may determine.
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(9)
The court may require a deputy—
(a)
to give to the Public Guardian such security as the court thinks fit for
the due discharge of his functions, and
(b)
to submit to the Public Guardian such reports at such times or at such
intervals as the court may direct.
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Restrictions on deputies
(1)
A deputy does not have power to make a decision on behalf of P in relation to
a matter if he knows or has reasonable grounds for believing that P has
capacity in relation to the matter.
(2)
Nothing in section 16(5) or 17 permits a deputy to be given power—
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(a)
to prohibit a named person from having contact with P;

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(b)
to direct a person responsible for P’s health care to allow a different
person to take over that responsibility.
(3)
A deputy may not be given powers with respect to—
(a)
the settlement of any of P’s property, whether for P’s benefit or for the
benefit of others,
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(b)
the execution for P of a will, or
(c)
the exercise of any power (including a power to consent) vested in P
whether beneficially or as trustee or otherwise.
(4)
A deputy may not be given power to make a decision on behalf of P which is
inconsistent with a decision made, within the scope of his authority and in
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accordance with this Act, by the donee of a lasting power of attorney granted
by P (or, if there is more than one donee, by any of them).
(5)
A deputy may not refuse consent to the carrying out or continuation of life-
sustaining treatment in relation to P, unless the court has conferred on the
deputy express authority to that effect.
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(6)
The court may exercise its power under subsection (5) only if it is satisfied that
the circumstances are exceptional.
(7)
The authority conferred on a deputy is subject to the provisions of this Act and,
in particular, section 4 (best interests).
(8)
A deputy may not do an act that is intended to restrain P unless four conditions
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are satisfied.
(9)
The first condition is that, in doing the act, the deputy is acting within the scope
of an authority expressly conferred on him by the court.
(10)
The second is that P lacks, or the deputy reasonably believes that P lacks,
capacity in relation to the matter in question.
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(11)
The third is that the deputy reasonably believes that it is necessary to do the act
in order to prevent harm to P.
(12)
The fourth is that the act is a proportionate response to—
(a)
the likelihood of P’s suffering harm, or
(b)
the seriousness of that harm.
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(13)
For the purposes of this section, a deputy restrains P if he—
(a)
uses, or threatens to use, force to secure the doing of an act which P
resists, or
(b)
restricts P’s liberty of movement, whether or not P resists,

or if he authorises another person to do any of those things.
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Transfer of proceedings relating to people under 18
The Lord Chancellor may by order make provision as to the transfer of
proceedings relating to a person under 18, in such circumstances as are
specified in the order—
(a)
from the Court of Protection to a court having jurisdiction under the
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Children Act 1989 (c. 41), or
(b)
from a court having jurisdiction under that Act to the Court of
Protection.