Mental Capacity Bill

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Schedule 2 — Property and affairs: supplementary provisions
42

P lacks capacity to make decisions with respect to the management
and administration of his property and affairs, and
(b)
that, having regard to the nature of the appointment and to the
circumstances of the case, it is expedient that the court should
exercise its powers under this paragraph.
5
      (2)
The court may direct—
(a)
any stocks standing in the name of P, or
(b)
the right to receive dividends from the stocks,

to be transferred into M’s name or otherwise dealt with as required by M,
and may give such directions as the court thinks fit for dealing with accrued
10
dividends from the stocks.
      (3)
“Stocks” includes—
(a)
shares, and
(b)
any funds, annuity or security transferable in the books kept by any
body corporate or unincorporated company or society or by an
15
instrument of transfer either alone or accompanied by other
formalities,

and “dividends” is to be construed accordingly.
Preservation of interests in property disposed of on behalf of person lacking capacity
8     (1)
Sub-paragraphs (2) and (3) apply if—
20
(a)
P’s property has been disposed of by virtue of section 18,
(b)
under P’s will or intestacy, or by a gift perfected or nomination
taking effect on his death, any other person would have taken an
interest in the property but for the disposal, and
(c)
on P’s death, any property belonging to P’s estate represents the
25
property disposed of.
      (2)
The person takes the same interest, if and so far as circumstances allow, in
the property representing the property disposed of.
      (3)
If the property disposed of was real property, any property representing it
is to be treated, so long as it remains part of P’s estate, as if it were real
30
property.
      (4)
The court may direct that, on a disposal of P’s property—
(a)
which is made by virtue of section 18, and
(b)
which would apart from this paragraph result in the conversion of
personal property into real property,
35

property representing the property disposed of is to be treated, so long as it
remains P’s property or forms part of P’s estate, as if it were personal
property.
      (5)
References in sub-paragraphs (1) to (4) to the disposal of property are to—
(a)
the sale, exchange, charging of or other dealing (otherwise than by
40
will) with property other than money;
(b)
the removal of property from one place to another;
(c)
the application of money in acquiring property;
(d)
the transfer of money from one account to another;

and references to property representing property disposed of are to be
45
construed accordingly and as including the result of successive disposals.

Mental Capacity Bill
Schedule 3 — International protection of adults
Part 1 — Preliminary
43

      (6)
The court may give such directions as appear to it necessary or expedient for
the purpose of facilitating the operation of sub-paragraphs (1) to (3),
including the carrying of money to a separate account and the transfer of
property other than money.
9     (1)
Sub-paragraph (2) applies if the court has ordered or directed the
5
expenditure of money—
(a)
for carrying out permanent improvements on any of P’s property, or
(b)
otherwise for the permanent benefit of any of P’s property.
      (2)
The court may order that—
(a)
the whole of the money expended or to be expended, or
10
(b)
any part of it,

is to be a charge on the property either without interest or with interest at a
specified rate.
      (3)
An order under sub-paragraph (2) may provide for excluding or restricting
the operation of paragraph 8(1) to (3).
15
      (4)
A charge under sub-paragraph (2) may be made in favour of such person as
may be just and, in particular, where the money charged is paid out of P’s
general estate, may be made in favour of a person as trustee for P.
      (5)
No charge under sub-paragraph (2) may confer any right of sale or
foreclosure during P’s lifetime.
20
Powers as patron of benefice
10
Only the Lord Chancellor has power to exercise, on behalf of P, P’s powers
as patron of a benefice.
Schedule 3
Section 59

International protection of adults
25
Part 1
Preliminary
Introduction
1
This Part applies for the purposes of this Schedule.
The Convention
30
2     (1)
“Convention” means the Convention referred to in section 59.
      (2)
“Convention country” means a country in which the Convention is in force.
      (3)
A reference to an Article or Chapter is to an Article or Chapter of the
Convention.
      (4)
An expression which appears in this Schedule and in the Convention is to be
35
construed in accordance with the Convention.

Mental Capacity Bill
Schedule 3 — International protection of adults
Part 1 — Preliminary
44

Countries, territories and nationals
3     (1)
“Country” includes a territory which has its own system of law.
      (2)
Where a country has more than one territory with its own system of law, a
reference to the country, in relation to one of its nationals, is to the territory
with which the national has the closer, or the closest, connection.
5
Adults with incapacity
4
“Adult” means a person who—
(a)
as a result of an impairment or insufficiency of his personal faculties,
cannot protect his interests, and
(b)
has reached 16.
10
Protective measures
5     (1)
“Protective measure” means a measure directed to the protection of the
person or property of an adult; and it may deal in particular with any of the
following—
(a)
the determination of incapacity and the institution of a protective
15
regime,
(b)
placing the adult under the protection of an appropriate authority,
(c)
guardianship, curatorship or any corresponding system,
(d)
the designation and functions of a person having charge of the
adult’s person or property, or representing or otherwise helping
20
him,
(e)
placing the adult in a place where protection can be provided,
(f)
administering, conserving or disposing of the adult’s property,
(g)
authorising a specific intervention for the protection of the person or
property of the adult.
25
      (2)
Where a measure of like effect to a protective measure has been taken in
relation to a person before he reaches 16, this Schedule applies to the
measure in so far as it has effect in relation to him once he has reached 16.
Central Authority
6     (1)
Any function under the Convention of a Central Authority is exercisable in
30
England and Wales by the Lord Chancellor.
      (2)
A communication may be sent to the Central Authority in relation to
England and Wales by sending it to the Lord Chancellor.
Public authority
7
“Public authority” has the same meaning as in section 6 of the Human Rights
35
Act 1998 (c. 42).

Mental Capacity Bill
Schedule 3 — International protection of adults
Part 2 — Jurisdiction of competent authority
45

Part 2
Jurisdiction of competent authority
Scope of jurisdiction
8     (1)
The court may exercise its functions under this Act (in so far as it cannot
otherwise do so) in relation to—
5
(a)
an adult habitually resident in England and Wales,
(b)
an adult’s property in England and Wales,
(c)
an adult present in England and Wales or who has property there, if
the matter is urgent, or
(d)
an adult present in England and Wales, if a protective measure
10
which is temporary and limited in its effect to England and Wales is
proposed in relation to him.
      (2)
An adult present in England and Wales is to be treated for the purposes of
this paragraph as habitually resident there if—
(a)
his habitual residence cannot be ascertained,
15
(b)
he is a refugee, or
(c)
he has been displaced as a result of disturbance in the country of his
habitual residence.
9     (1)
The court may also exercise its functions under this Act (in so far as it cannot
otherwise do so) in relation to an adult if sub-paragraph (2) or (3) applies in
20
relation to him.
      (2)
This sub-paragraph applies in relation to an adult if—
(a)
he is a British citizen,
(b)
he has a closer connection with England and Wales than with
Scotland or Northern Ireland, and
25
(c)
Article 7 has, in relation to the matter concerned, been complied
with.
      (3)
This sub-paragraph applies in relation to an adult if the Lord Chancellor,
having consulted such persons as he considers appropriate, agrees to a
request under Article 8 in relation to the adult.
30
Exercise of jurisdiction
10    (1)
This paragraph applies where jurisdiction is exercisable under this Schedule
in connection with a matter which involves a Convention country other than
England and Wales.
      (2)
Any Article on which the jurisdiction is based applies in relation to the
35
matter in so far as it involves the other country (and the court must,
accordingly, comply with any duty conferred on it as a result).
      (3)
Article 12 also applies, so far as its provisions allow, in relation to the matter
in so far as it involves the other country.
11
A reference in this Schedule to the exercise of jurisdiction under this
40
Schedule is to the exercise of functions under this Act as a result of this Part
of this Schedule.

Mental Capacity Bill
Schedule 3 — International protection of adults
Part 3 — Applicable law
46

Part 3
Applicable law
Applicable law
12
In exercising jurisdiction under this Schedule, the court may, if it thinks that
the matter has a substantial connection with a country other than England
5
and Wales, apply the law of that other country.
13
Where a protective measure is taken in one country but implemented in
another, the conditions of implementation are governed by the law of the
other country.
Lasting powers of attorney, etc.
10
14    (1)
This paragraph applies where—
(a)
the donor of a lasting power designates in writing the law of a
connected country as the law applicable to the existence, extent,
modification or extinction of the power, and
(b)
but for this paragraph, the applicable law in that respect would be
15
the law of England and Wales.
      (2)
The law designated by the donor is the applicable law in that respect.
      (3)
A country is connected, in relation to the donor, if it is a country—
(a)
of which he is a national,
(b)
in which he was habitually resident, or
20
(c)
in which he has property.
      (4)
Where this paragraph applies as a result of sub-paragraph (3)(c), it applies
only in relation to the property which the donor has in the connected
country.
      (5)
The law applicable to the manner of the exercise of a lasting power is the law
25
of the country where it is exercised.
      (6)
In this Part of this Schedule, “lasting power” means—
(a)
a lasting power of attorney (see section 9),
(b)
an enduring power of attorney within the meaning of Schedule 4, or
(c)
any other power of like effect.
30
15    (1)
Where a lasting power is not exercised in a manner sufficient to guarantee
the protection of the person or property of the donor, the court, in exercising
jurisdiction under this Schedule, may disapply or modify the power.
      (2)
Where, in accordance with this Part of this Schedule, the law applicable to
the power is, in one or more respects, that of a country other than England
35
and Wales, the court must, so far as possible, have regard to the law of the
other country in that respect (or those respects).
16
Regulations may provide for Schedule 1 (lasting powers of attorney:
formalities) to apply with modifications in relation to a lasting power which
comes within paragraph 14(6)(c) above.
40

Mental Capacity Bill
Schedule 3 — International protection of adults
Part 4 — Recognition and enforcement
47

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
in England and Wales.
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.
Mandatory rules
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.
Public policy
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.
Part 4
Recognition and enforcement
Recognition
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
country.
      (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
(jurisdiction).
      (3)
But the court may disapply this paragraph in relation to a measure if it
thinks that—
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
policy,
(b)
the measure would be inconsistent with a mandatory provision of
the law of England and Wales, or

Mental Capacity Bill
Schedule 3 — International protection of adults
Part 4 — Recognition and enforcement
48

(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
paragraph.
22
For the purposes of paragraphs 20 and 21, any finding of fact relied on when
the measure was taken is conclusive.
Enforcement
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
and
(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
provision.
      (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
Supplementary
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
paragraph 21 or 23.