Mental Capacity Bill

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Part 2 — The Court of Protection and the Public Guardian
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The Public Guardian
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The Public Guardian
(1)
For the purposes of this Act, there is to be an officer, to be known as the Public
Guardian.
(2)
The Public Guardian is to be appointed by the Lord Chancellor.
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(3)
There is to be paid to the Public Guardian out of money provided by
Parliament such salary as the Lord Chancellor may determine.
(4)
The Lord Chancellor may, after consulting the Public Guardian, provide him
with such officers and staff as the Lord Chancellor thinks necessary for the
proper discharge of his functions.
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(5)
Any functions of the Public Guardian may, to the extent authorised by him, be
performed by any of his officers.
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Functions of the Public Guardian
(1)
The Public Guardian has the following functions—
(a)
establishing and maintaining a register of lasting powers of attorney,
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(b)
establishing and maintaining a register of orders appointing deputies,
(c)
supervising deputies appointed by the court,
(d)
directing a Court of Protection Visitor to visit—
(i)
a donee of a lasting power of attorney,
(ii)
a deputy appointed by the court, or
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(iii)
the person granting the power of attorney or for whom the
deputy is appointed (“P”),

and to make a report to the Public Guardian on such matters as he may
direct,
(e)
receiving security which the court requires a person to give for the
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discharge of his functions,
(f)
receiving reports from donees of lasting powers of attorney and
deputies appointed by the court,
(g)
reporting to the court on such matters relating to proceedings under
this Act as the court requires,
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(h)
dealing with representations (including complaints) about the way in
which a donee of a lasting power of attorney or a deputy appointed by
the court is exercising his powers.
(2)
The functions conferred by subsection (1)(c) and (h) may be discharged in co-
operation with any other person who has functions in relation to the care or
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treatment of P.
(3)
The Lord Chancellor may by regulations make provision—
(a)
conferring on the Public Guardian other functions in connection with
this Act;
(b)
in connection with the discharge by the Public Guardian of his
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functions.
(4)
Regulations made under subsection (3)(b) may in particular make provision—
(a)
as to the giving of security by deputies appointed by the court and as to
the enforcement and discharge of security so given;

Mental Capacity Bill
Part 2 — The Court of Protection and the Public Guardian
31

(b)
as to the fees which may be charged by the Public Guardian;
(c)
as to the way in which, and funds from which, such fees are to be paid;
(d)
as to the making of reports to the Public Guardian by deputies
appointed by the court and others who are directed by the court to
carry out any transaction for a person who lacks capacity.
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(5)
For the purpose of enabling him to carry out his functions, the Public Guardian
may, at all reasonable times, examine and take copies of—
(a)
any health record,
(b)
any record of, or held by, a local authority and compiled in connection
with a social services function, and
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(c)
any record held by a person registered under Part 2 of the Care
Standards Act 2000 (c. 14),

so far as the record relates to P.
(6)
The Public Guardian may also for that purpose interview P in private.
Court of Protection Visitors
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Court of Protection Visitors
(1)
A Court of Protection Visitor is a person who is appointed by the Lord
Chancellor to—
(a)
a panel of Special Visitors, or
(b)
a panel of General Visitors.
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(2)
A person is not qualified to be a Special Visitor unless he—
(a)
is a registered medical practitioner or appears to the Lord Chancellor to
have other suitable qualifications or training, and
(b)
appears to the Lord Chancellor to have special knowledge of and
experience in cases of impairment of or disturbance in the functioning
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of the mind or brain.
(3)
A General Visitor need not have a medical qualification.
(4)
A Court of Protection Visitor—
(a)
may be appointed for such term and subject to such conditions, and
(b)
may be paid such remuneration and allowances,
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as the Lord Chancellor may determine.
(5)
For the purpose of carrying out his functions under this Act in relation to a
person who lacks capacity (“P”), a Court of Protection Visitor may, at all
reasonable times, examine and take copies of—
(a)
any health record,
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(b)
any record of, or held by, a local authority and compiled in connection
with a social services function, and
(c)
any record held by a person registered under Part 2 of the Care
Standards Act 2000,

so far as the record relates to P.
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(6)
A Court of Protection Visitor may also for that purpose interview P in private.

Mental Capacity Bill
Part 3 — Miscellaneous and general
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Part 3
Miscellaneous and general
Declaratory provision
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Scope of the Act
For the avoidance of doubt, it is hereby declared that nothing in this Act is to
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be taken to affect the law relating to murder or manslaughter or the operation
of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide).
Private international law
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International protection of adults
Schedule 3—
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(a)
gives effect in England and Wales to the Convention on the
International Protection of Adults signed at the Hague on 13th January
2000 (Cm. 5881) (in so far as this Act does not otherwise do so), and
(b)
makes related provision as to the private international law of England
and Wales.
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General
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Interpretation
(1)
In this Act—

“the 1985 Act” means the Enduring Powers of Attorney Act 1985 (c. 29),

“advance decision” has the meaning given in section 24(1),
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“the court” means the Court of Protection established by section 43,

“Court of Protection Rules” has the meaning given in section 49(1),

“Court of Protection Visitor” has the meaning given in section 57,

“deputy” has the meaning given in section 16(2)(b),

“enactment” includes a provision of subordinate legislation (within the
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meaning of the Interpretation Act 1978 (c. 30)),

“health record” has the meaning given in section 68 of the Data Protection
Act 1998 (c. 29) (as read with section 69 of that Act),

“independent consultee” has the meaning given in section 34(1),

“lasting power of attorney” has the meaning given in section 9,
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“life-sustaining treatment” has the meaning given in section 6(7),

“local authority” means—
(a)
the council of a county in England in which there are no district
councils,
(b)
the council of a district in England,
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(c)
the council of a county or county borough in Wales,
(d)
the council of a London borough,
(e)
the Common Council of the City of London, or
(f)
the Council of the Isles of Scilly,

“Mental Health Act” means the Mental Health Act 1983 (c. 20),
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Mental Capacity Bill
Part 3 — Miscellaneous and general
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“property” includes any thing in action and any interest in real or
personal property,

“Public Guardian” has the meaning given in section 55,

“purchaser” and “purchase” have the meaning given in section 205(1) of
the Law of Property Act 1925 (c. 20),
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“social services function” has the meaning given in section 1A of the Local
Authority Social Services Act 1970 (c. 42),

“treatment” includes a diagnostic or other procedure,

“trust corporation” has the meaning given in section 68(1) of the Trustee
Act 1925 (c. 19), and
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“will” includes codicil.
(2)
In this Act references to making decisions, in relation to a donee of a lasting
power of attorney or a deputy appointed by the court, include, where
appropriate, acting on decisions made.
(3)
In this Act references to the bankruptcy of an individual include a case where
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a bankruptcy restrictions order under the Insolvency Act 1986 (c. 45) has effect
in respect of him.
(4)
“Bankruptcy restrictions order” includes an interim bankruptcy restrictions
order.
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Rules, regulations and orders
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(1)
Any power to make rules, regulations or orders under this Act—
(a)
is exercisable by statutory instrument;
(b)
includes power to make supplementary, incidental, consequential,
transitional or saving provision;
(c)
includes power to make different provision for different cases.
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(2)
Any statutory instrument containing rules, regulations or orders made by the
Lord Chancellor or the Secretary of State under this Act, other than an order
under section 64 or of the kind mentioned in section 63(6), is subject to
annulment in pursuance of a resolution of either House of Parliament.
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Existing receivers and enduring powers of attorney etc.
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(1)
The following provisions cease to have effect—
(a)
Part 7 of the Mental Health Act,
(b)
the Enduring Powers of Attorney Act 1985 (c. 29).
(2)
No enduring power of attorney within the meaning of the 1985 Act is to be
created after the commencement of this Act.
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(3)
Schedule 4 has effect in place of the 1985 Act in relation to any enduring power
of attorney created before the commencement of this Act.
(4)
Schedule 5 contains transitional provisions and savings in relation to Part 7 of
the Mental Health Act and the 1985 Act.
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Minor and consequential amendments and repeals
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(1)
Schedule 6 contains minor and consequential amendments.

Mental Capacity Bill
Part 3 — Miscellaneous and general
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(2)
Schedule 7 contains repeals.
(3)
The Lord Chancellor may by order make supplementary, incidental,
consequential, transitional or saving provision for the purposes of, in
consequence of, or for giving full effect to a provision of this Act.
(4)
An order under subsection (3) may, in particular—
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(a)
provide for a provision of this Act which comes into force before
another provision of this Act has come into force to have effect, until the
other provision has come into force, with specified modifications;
(b)
amend, repeal or revoke an enactment, other than one contained in an
Act passed in a Session after the one in which this Act is passed.
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(5)
The power conferred by subsection (3) is not restricted by any other provision
of this Act.
(6)
An order under subsection (3) which amends or repeals a provision of an Act
may not be made unless a draft has been laid before and approved by
resolution of each House of Parliament.
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Commencement and extent
(1)
This Act comes into force in accordance with provision made by order by the
Lord Chancellor.
(2)
An order under this section may appoint different days for different provisions
and different purposes.
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(3)
Subject to subsections (4) and (5), this Act extends to England and Wales only.
(4)
The following provisions extend to the United Kingdom—
(a)
paragraph 15(1) of Schedule 1 (evidence of instruments and of
registration of lasting powers of attorney),
(b)
paragraph 15(3) of Schedule 4 (evidence of instruments and of
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registration of enduring powers of attorney).
(5)
Subject to any provision made in Schedule 6, the amendments and repeals
made by Schedules 6 and 7 have the same extent as the enactments to which
they relate.
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Short title
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This Act may be cited as the Mental Capacity Act 2004.