Mental Capacity Bill

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Schedule 3 — International protection of adults
Part 6 — General
49

Part 5
Co-operation
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
with it.
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.
Adult in danger etc.
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
Wales.
      (2)
The public authority must tell an appropriate authority in that other country
about—
(a)
the danger, and
(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
the adult’s family.
Part 6
General
Certificates
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
matters contained in it.

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 1 — Enduring powers of attorney
50

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.
      (2)
The regulations may—
(a)
confer functions on the court or another public authority;
10
(b)
amend this Schedule;
(c)
provide for this Schedule to apply with specified modifications;
(d)
make provision about countries other than Convention countries.
Exceptions
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
4, does not apply.
Regulations and orders
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.
Commencement
36
The following provisions of this Schedule have effect only if the Convention
is in force in accordance with Article 57—
(a)
paragraph 9,
25
(b)
paragraph 10,
(c)
paragraph 20(2) and (5),
(d)
Part 5,
(e)
paragraph 31.
Schedule 4
30
Section 62(3)

Provisions applying to existing enduring powers of attorney
Part 1
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,

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 1 — Enduring powers of attorney
51

(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
mental incapacity,

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
permits him to do so.
      (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
which creates the power—
25
(a)
is in the prescribed form,
(b)
was executed in the prescribed manner by the donor and the
attorney, and
(c)
incorporated at the time of execution by the donor the prescribed
explanatory information.
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
1986 (S.I. 1986/126),
(b)
the Enduring Powers of Attorney (Prescribed Form) Regulations
35
1987 (S.I. 1987/1612),
(c)
the Enduring Powers of Attorney (Prescribed Form) Regulations
1990 (S.I. 1990/1376),
(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
of form and expression.
      (5)
A power of attorney cannot be an enduring power unless, when he executes
the instrument creating it, the attorney is—

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 1 — Enduring powers of attorney
52

(a)
an individual who has reached 18 and is not bankrupt, or
(b)
a trust corporation.
      (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
confer, subject 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
instrument.
      (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
needs respectively, and
30
(b)
he may do whatever the donor might be expected to do to meet those
needs.
      (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
but no further—
(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

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 3 — Notification prior to registration
53

Part 2
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.
      (5)
The attorney—
(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
determination.
      (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
liable—
(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
Part 3
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
(c)
the donor’s parents,
(d)
the donor’s brothers and sisters, whether of the whole or half blood,

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 3 — Notification prior to registration
54

(e)
the widow, widower or surviving civil partner of a child of the
donor,
(f)
the donor’s grandchildren,
(g)
the children of the donor’s brothers and sisters of the whole blood,
(h)
the children of the donor’s brothers and sisters of the half blood,
5
(i)
the donor’s uncles and aunts of the whole blood,
(j)
the children of the donor’s uncles and aunts of the whole blood.
      (2)
A person is not entitled to receive notice under paragraph 5 if—
(a)
his name or address is not known to the attorney and cannot be
reasonably ascertained by him, or
10
(b)
the attorney has reason to believe that he has not reached 18 or is
mentally incapable.
      (3)
Except where sub-paragraph (4) applies—
(a)
no more than 3 persons are entitled to receive notice under
paragraph 5, and
15
(b)
in determining the persons who are so entitled, persons falling
within the class in sub-paragraph (1)(a) are to be preferred to persons
falling within the class in sub-paragraph (1)(b), those falling within
the class in sub-paragraph (1)(b) are to be preferred to those falling
within the class in sub-paragraph (1)(c), and so on.
20
      (4)
Despite the limit of 3 specified in sub-paragraph (3), where—
(a)
there is more than one person falling within any of classes (a) to (j) of
sub-paragraph (1), and
(b)
at least one of those persons would be entitled to receive notice under
paragraph 5,
25

then, subject to sub-paragraph (2), all the persons falling within that class are
entitled to receive notice under paragraph 5.
7     (1)
An attorney is not required to give notice under paragraph 5—
(a)
to himself, or
(b)
to any other attorney under the power who is joining in making the
30
application,

even though he or, as the case may be, the other attorney is entitled to receive
notice by virtue of paragraph 6.
      (2)
In the case of any person who is entitled to receive notice by virtue of
paragraph 6, the attorney, before applying for registration, may make an
35
application to the court to be dispensed from the requirement to give him
notice; and the court must grant the application if it is satisfied—
(a)
that it would be undesirable or impracticable for the attorney to give
him notice, or
(b)
that no useful purpose is likely to be served by giving him notice.
40
Duty to give notice to donor
8     (1)
Subject to sub-paragraph (2), before making an application for registration
the attorney must give notice of his intention to do so to the donor.
      (2)
Paragraph 7(2) applies in relation to the donor as it applies in relation to a
person who is entitled to receive notice under paragraph 5.
45

Mental Capacity Bill
Schedule 4 — Provisions applying to existing enduring powers of attorney
Part 4 — Registration
55

Contents of notices
9
A notice to relatives under this Part of this Schedule must—
(a)
be in the prescribed form,
(b)
state that the attorney proposes to make an application to the Public
Guardian for the registration of the instrument creating the enduring
5
power in question,
(c)
inform the person to whom it is given of his right to object to the
registration under paragraph 13(4), and
(d)
specify, as the grounds on which an objection to registration may be
made, the grounds set out in paragraph 13(9).
10
10
A notice to the donor under this Part of this Schedule—
(a)
must be in the prescribed form,
(b)
must contain the statement mentioned in paragraph 9(b), and
(c)
must inform the donor that, while the instrument remains registered,
any revocation of the power by him will be ineffective unless and
15
until the revocation is confirmed by the court.
Duty to give notice to other attorneys
11    (1)
Subject to sub-paragraph (2), before making an application for registration
an attorney under a joint and several power must give notice of his intention
to do so to any other attorney under the power who is not joining in making
20
the application; and paragraphs 7(2) and 9 apply in relation to attorneys
entitled to receive notice by virtue of this paragraph as they apply in relation
to persons entitled to receive notice by virtue of paragraph 6.
      (2)
An attorney is not entitled to receive notice by virtue of this paragraph if—
(a)
his address is not known to the applying attorney and cannot
25
reasonably be ascertained by him, or
(b)
the applying attorney has reason to believe that he has not reached
18 or is mentally incapable.
Supplementary
12
Despite section 7 of the Interpretation Act 1978 (c. 30) (construction of
30
references to service by post), for the purposes of this Part of this Schedule a
notice given by post is to be regarded as given on the date on which it was
posted.
Part 4
Registration
35
Registration of instrument creating power
13    (1)
If an application is made in accordance with paragraph 4(3) and (4) the
Public Guardian must, subject to the provisions of this paragraph, register
the instrument to which the application relates.
      (2)
If it appears to the Public Guardian that—
40
(a)
there is a deputy appointed for the donor of the power created by the
instrument, and