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Mental Capacity Bill


Mental Capacity Bill
Schedule 5 — Transitional provisions and savings
Part 1 — Repeal of Part 7 of the Mental Health Act 1983

63

 

      (4)  

Where, as a result of section 20(1), R may not make a decision on behalf of P

in relation to a relevant matter, R must apply to the court.

      (5)  

If, on the application, the court is satisfied that P is capable of managing his

property and affairs in relation to the relevant matter—

(a)   

it must make an order ending R’s appointment as P’s deputy in

5

relation to that matter, but

(b)   

it may, in relation to any other matter, exercise in relation to P any of

the powers which it has under sections 15 to 19.

      (6)  

If it is not satisfied, the court may exercise in relation to P any of the powers

which it has under sections 15 to 19.

10

      (7)  

R’s appointment as P’s deputy ceases to have effect if P dies.

      (8)  

“Relevant matter” means a matter in relation to which, immediately before

the commencement day, R was authorised to act as P’s receiver.

      (9)  

In sub-paragraph (1), the reference to a receiver appointed under section 99

of the Mental Health Act includes a reference to a person who by virtue of

15

Schedule 5 to that Act was deemed to be a receiver appointed under that

section.

Orders, appointments etc.

2     (1)  

Any order or appointment made, direction or authority given or other thing

done which has, or by virtue of Schedule 5 to the Mental Health Act was

20

deemed to have, effect under Part 7 of the Act immediately before the

commencement day is to continue to have effect despite the repeal of Part 7.

      (2)  

In so far as any such order, appointment, direction, authority or thing could

have been made, given or done under sections 15 to 20 if those sections had

then been in force—

25

(a)   

it is to be treated as made, given or done under those sections, and

(b)   

the powers of variation and discharge conferred by section 16(7)

apply accordingly.

      (3)  

Sub-paragraph (1)—

(a)   

does not apply to nominations under section 93(1) or (4) of the

30

Mental Health Act, and

(b)   

as respects receivers, has effect subject to paragraph 1.

      (4)  

This Act does not affect the operation of section 109 of the Mental Health Act

(effect and proof of orders etc.) in relation to orders made and directions

given under Part 7 of that Act.

35

      (5)  

This paragraph is without prejudice to section 16 of the Interpretation Act

1978 (c. 30) (general savings on repeal).

Pending proceedings

3     (1)  

Any application for the exercise of a power under Part 7 of the Mental Health

Act which is pending immediately before the commencement day is to be

40

treated, in so far as a corresponding power is exercisable under sections 16

to 20, as an application for the exercise of that power.

      (2)  

For the purposes of sub-paragraph (1) an application for the appointment of

a receiver is to be treated as an application for the appointment of a deputy.

 

 

Mental Capacity Bill
Schedule 5 — Transitional provisions and savings
Part 1 — Repeal of Part 7 of the Mental Health Act 1983

64

 

Appeals

4     (1)  

Part 7 of the Mental Health Act and the rules made under it are to continue

to apply to any appeal brought by virtue of section 105 of that Act which has

not been determined before the commencement day.

      (2)  

If in the case of an appeal brought by virtue of section 105(1) (appeal to

5

nominated judge) the judge nominated under section 93 of the Mental

Health Act has begun to hear the appeal, he is to continue to do so but

otherwise it is to be heard by a puisne judge of the High Court nominated

under section 44.

Fees

10

5          

All fees and other payments which, having become due, have not been paid

to the former Court of Protection before the commencement day, are to be

paid to the new Court of Protection.

Court records

6     (1)  

The records of the former Court of Protection are to be treated, on and after

15

the commencement day, as records of the new Court of Protection and are

to be dealt with accordingly under the Public Records Act 1958 (c. 51).

      (2)  

On and after the commencement day, the Public Guardian is, for the

purpose of exercising any of his functions, to be given such access as he may

require to such of the records mentioned in sub-paragraph (1) as relate to the

20

appointment of receivers under section 99 of the Mental Health Act.

Existing charges

7          

This Act does not affect the operation in relation to a charge created before

the commencement day of—

(a)   

so much of section 101(6) of the Mental Health Act as precludes a

25

charge created under section 101(5) from conferring a right of sale or

foreclosure during the lifetime of the patient, or

(b)   

section 106(6) of the Mental Health Act (charge created by virtue of

section 106(5) not to cause interest to fail etc.).

Preservation of interests on disposal of property

30

8          

Paragraph 8(1) of Schedule 2 applies in relation to any disposal of property

(within the meaning of that provision) by a person living on 1st November

1960, being a disposal effected under the Lunacy Act 1890 (c. 5) as it applies

in relation to the disposal of property effected under sections 16 to 20.

Accounts

35

9          

Court of Protection Rules may provide that, in a case where paragraph 1

applies, R is to have a duty to render accounts—

(a)   

while he is receiver;

(b)   

after he is discharged.

Interpretation

40

10         

In this Part of this Schedule—

 

 

Mental Capacity Bill
Schedule 5 — Transitional provisions and savings
Part 2 — Repeal of the Enduring Powers of Attorney Act 1985

65

 

(a)   

“the commencement day” means the day on which section 62(1)(a)

(repeal of Part 7 of the Mental Health Act) comes into force,

(b)   

“the former Court of Protection” means the office abolished by

section 43, and

(c)   

“the new Court of Protection” means the court established by section

5

43.

Part 2

Repeal of the Enduring Powers of Attorney Act 1985

Orders, determinations, etc.

11    (1)  

Any order or determination made or other thing done under the 1985 Act

10

which has effect immediately before the commencement day continues to

have effect despite the repeal of that Act.

      (2)  

In so far as any such order, determination or thing could have been made or

done under Schedule 4 if it had then been in force—

(a)   

it is to be treated as made or done under that Schedule, and

15

(b)   

the powers of variation and discharge exercisable by the court apply

accordingly.

      (3)  

Any instrument registered under the 1985 Act is to be treated as having been

registered by the Public Guardian under Schedule 4.

      (4)  

This paragraph is without prejudice to section 16 of the Interpretation Act

20

1978 (c. 30) (general savings on repeal).

Pending proceedings

12    (1)  

An application for the exercise of a power under the 1985 Act which is

pending immediately before the commencement day is to be treated, in so

far as a corresponding power is exercisable under Schedule 4, as an

25

application for the exercise of that power.

      (2)  

For the purposes of sub-paragraph (1)—

(a)   

a pending application under section 4(2) of the 1985 Act for the

registration of an instrument is to be treated as an application to the

Public Guardian under paragraph 4 of Schedule 4 and any notice

30

given in connection with that application under Schedule 1 to the

1985 Act is to be treated as given under Part 3 of Schedule 4;

(b)   

a notice of objection to the registration of an instrument is to be

treated as a notice of objection under paragraph 13 of Schedule 4;

(c)   

pending proceedings under section 5 of the 1985 Act are to be treated

35

as proceedings on an application for the exercise by the court of a

power which would become exercisable in relation to an instrument

under paragraph 16(2) of Schedule 4 on its registration.

Appeals

13    (1)  

The 1985 Act, and, so far as relevant, the provisions of Part 7 of the Mental

40

Health Act and the rules made under it as applied by section 10 of the 1985

Act, are to continue to have effect in relation to any appeal brought by virtue

of section 10(1)(c) of the 1985 Act which has not been determined before the

commencement day.

 

 

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments

66

 

      (2)  

If in the case of an appeal brought by virtue of section 105(1) of the Mental

Health Act as applied by section 10(1)(c) of the 1985 Act (appeal to

nominated judge) the judge nominated under section 93 of the Mental

Health Act has begun to hear the appeal, he is to continue to do so but

otherwise the appeal is to be heard by a puisne judge of the High Court

5

nominated under section 44.

Exercise of powers of donor as trustee

14    (1)  

Section 2(8) of the 1985 Act (which prevents a power of attorney under

section 25 of the Trustee Act 1925 (c. 19) as enacted from being an enduring

power) is to continue to apply to any enduring power—

10

(a)   

created before 1st March 2000, and

(b)   

having effect immediately before the commencement day.

      (2)  

Section 3(3) of the 1985 Act (which entitles the donee of an enduring power

to exercise the donor’s powers as trustee) is to continue to apply to any

enduring power to which, as a result of the provision mentioned in sub-

15

paragraph (3), it applies immediately before the commencement day.

      (3)  

The provision is section 4(3)(a) of the Trustee Delegation Act 1999 (c. 15)

(which provides for section 3(3) of the 1985 Act to cease to apply to an

enduring power when its registration is cancelled, if it was registered in

response to an application made before 1st March 2001).

20

      (4)  

Even though section 4 of the 1999 Act is repealed by this Act, that section is

to continue to apply in relation to an enduring power—

(a)   

to which section 3(3) of the 1985 Act applies as a result of sub-

paragraph (2), or

(b)   

to which, immediately before the repeal of section 4 of the 1999 Act,

25

section 1 of that Act applies as a result of section 4 of it.

      (5)  

The reference in section 1(9) of the 1999 Act to section 4(6) of that Act is to be

read with sub-paragraphs (2) to (4).

Interpretation

15         

In this Part of this Schedule “the commencement day” means the day on

30

which section 62(1)(b) (repeal of the 1985 Act) comes into force.

Schedule 6

Section 63(1)

 

Minor and consequential amendments

Fines and Recoveries Act 1833 (c. 74)

1     (1)  

The Fines and Recoveries Act 1833 (c. 74) is amended as follows.

35

      (2)  

In section 33 (case where protector of settlement lacks capacity to act), for the

words from “shall be incapable” to “is incapable as aforesaid” substitute

“lacks capacity (within the meaning of the Mental Capacity Act 2004) to

manage his property and affairs, the Court of Protection is to take his place

as protector of the settlement while he lacks capacity”.

40

 

 

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments

67

 

      (3)  

In sections 48 and 49 (mental health jurisdiction), for each reference to the

judge having jurisdiction under Part 7 of the Mental Health Act substitute a

reference to the Court of Protection.

Improvement of Land Act 1864 (c. 114)

2          

In section 68 of the Improvement of Land Act 1864 (c. 114) (apportionment

5

of rentcharges)—

(a)   

for “, curator, or receiver of” substitute “or curator of, or a deputy

with powers in relation to property and affairs appointed by the

Court of Protection for,”, and

(b)   

for “or patient within the meaning of Part VII of the Mental Health

10

Act 1983” substitute “person who lacks capacity (within the meaning

of the Mental Capacity Act 2004) to receive the notice”.

Trustee Act 1925 (c. 19)

3     (1)  

The Trustee Act 1925 (c. 19) is amended as follows.

      (2)  

In section 36 (appointment of new trustee)—

15

(a)   

in subsection (6C), 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 2004”, and

(b)   

in subsection (9)—

(i)   

for the words from “is incapable” to “exercising” substitute

20

“lacks capacity to exercise”, and

(ii)   

for the words from “the authority” to the end substitute “the

Court of Protection”.

      (3)  

In section 41(1) (power of court to appoint new trustee) for the words from

“is incapable” to “exercising” substitute “lacks capacity to exercise”.

25

      (4)  

In section 54 (mental health jurisdiction)—

(a)   

for subsection (1) substitute—

“(1)   

Subject to subsection (2), the Court of Protection may not

make an order, or give a direction or authority, in relation to

a person who lacks capacity to exercise his functions as

30

trustee, if the High Court may make an order to that effect

under this Act.”,

(b)   

in subsection (2)—

(i)   

for the words from the beginning to “of a receiver” substitute

“Where a person lacks capacity to exercise his functions as a

35

trustee and a deputy is appointed for him by the Court of

Protection or an application for the appointment of a

deputy”,

(ii)   

for “the said authority”, in each place, substitute “the Court

of Protection”, and

40

(iii)   

for “the patient”, in each place, substitute “the person

concerned”, and

(c)   

omit subsection (3).

      (5)  

In section 55 (order made on particular allegation to be conclusive evidence

of it)—

45

 

 

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments

68

 

(a)   

for the words from “Part VII” to “Northern Ireland” substitute

“sections 15 to 20 of the Mental Capacity Act 2004 or any

corresponding provisions having effect in Northern Ireland”, and

(b)   

for paragraph (a) substitute—

“(a)   

that a trustee or mortgagee lacks capacity in relation

5

to the matter in question;”.

      (6)  

In section 68 (definitions), at the end add—

“(3)   

Any reference in this Act to a person who lacks capacity in relation

to a matter is to a person—

(a)   

who lacks capacity within the meaning of the Mental

10

Capacity Act 2004 in relation to that matter, or

(b)   

in respect of whom the powers conferred by section 46 of that

Act are exercisable and have been exercised in relation to that

matter.”.

Law of Property Act 1925 (c. 20)

15

4     (1)  

The Law of Property Act 1925 (c. 20) is amended as follows.

      (2)  

In section 22 (conveyances on behalf of persons who lack capacity)—

(a)   

in subsection (1)—

(i)   

for the words from “in a person suffering” to “is acting”

substitute “, either solely or jointly with any other person or

20

persons, in a person lacking capacity (within the meaning of

the Mental Capacity Act 2004) to convey or create a legal

estate, a deputy appointed for him by the Court of Protection

or (if no deputy is appointed”, and

(ii)   

for “the authority having jurisdiction under Part VII of the

25

Mental Health Act 1983” substitute “the Court of Protection”,

(b)   

in subsection (2), for “is incapable, by reason of mental disorder, of

exercising” substitute “lacks capacity (within the meaning of that

Act) to exercise”, and

(c)   

in subsection (3), for the words from “an enduring power” to the end

30

substitute “an enduring power of attorney or lasting power of

attorney (within the meaning of the 2004 Act) is entitled to act for the

trustee who lacks capacity in relation to the dealing.”.

      (3)  

In section 205 (interpretation), omit paragraph (xiii).

Administration of Estates Act 1925 (c. 23)

35

5     (1)  

The Administration of Estates Act 1925 (c. 23) is amended as follows.

      (2)  

In section 41(1) (powers of personal representatives to appropriate), in the

proviso—

(a)   

in paragraph (ii)—

(i)   

for the words from “is incapable” to “the consent” substitute

40

“lacks capacity (within the meaning of the Mental Capacity

Act 2004) to give the consent, it”, and

(ii)   

for “or receiver” substitute “or a person appointed as deputy

for him by the Court of Protection”, and

(b)   

in paragraph (iv), for “no receiver is acting for a person suffering

45

from mental disorder” substitute “no deputy is appointed for a

person who lacks capacity to consent”.

 

 

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments

69

 

      (3)  

Omit section 55(1)(viii) (definitions of “person of unsound mind” and

“defective”).

National Assistance Act 1948 (c. 29)

6          

In section 49 of the National Assistance Act 1948 (c. 29) (expenses of council

officers acting for persons who lack capacity)—

5

(a)   

for the words from “applies” to “affairs of a patient” substitute

“applies for appointment by the Court of Protection as a deputy”,

and

(b)   

for “such functions” substitute “his functions as deputy”.

U.S.A. Veterans’ Pensions (Administration) Act 1949 (c. 45)

10

7          

In section 1 of the U.S.A. Veterans’ Pensions (Administration) Act 1949

(c. 45) (administration of pensions)—

(a)   

in subsection (4), omit the words from “or for whom” to “1983”, and

(b)   

after subsection (4), insert—

“(4A)   

An agreement under subsection (1) is not to be made in

15

relation to a person who lacks capacity (within the meaning

of the Mental Capacity Act 2004) for the purposes of this Act

if—

(a)   

there is a donee of an enduring power of attorney or

lasting power of attorney (within the meaning of the

20

2004 Act), or a deputy appointed for the person by the

Court of Protection, and

(b)   

the donee or deputy has power in relation to the

person for the purposes of this Act.

(4B)   

The proviso at the end of subsection (4) also applies in

25

relation to subsection (4A).”.

Intestates’ Estates Act 1952 (c. 64)

8          

In Schedule 2 to the Intestates’ Estates Act 1952 (c. 64) (rights of surviving

spouse or civil partner in relation to home), for paragraph 6(1) substitute—

     “(1)  

Where the surviving spouse or civil partner lacks capacity (within

30

the meaning of the Mental Capacity Act 2004) to make a

requirement or give a consent under this Schedule, the

requirement or consent may be made or given by a deputy

appointed by the Court of Protection with power in that respect or,

if no deputy has that power, by that court.”.

35

Variation of Trusts Act 1958 (c. 53)

9          

In section 1 of the Variation of Trusts Act 1958 (c. 53) (jurisdiction of courts

to vary trusts)—

(a)   

in subsection (3), for the words from “shall be determined” to the end

substitute “who lacks capacity (within the meaning of the Mental

40

Capacity Act 2004) to give his assent is to be determined by the Court

of Protection”, and

(b)   

in subsection (6), for the words from “the powers” to the end

substitute “the powers of the Court of Protection”.

 

 

 
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