Mental Capacity Bill

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments

77

(iv)

“receiver,”, and

(b)

after that subsection, insert—

“(11)

Where the person to whom the information relates lacks

capacity (within the meaning of the Mental Capacity Act

2004) to consent to its disclosure, the appropriate person is—

5

(a)

a donee of an enduring power of attorney or lasting

power of attorney (within the meaning of that Act), or

(b)

a deputy appointed for him, or any other person

authorised, by the Court of Protection,



with power in that respect.”.

10

Judicial Pensions and Retirement Act 1993 (c. 8)

37    (1)

The Judicial Pensions and Retirement Act 1993 (c. 8) is amended as follows.

      (2)

In Schedule 1 (qualifying judicial offices), in Part 2, under the cross-heading

“Court officers”, omit the reference to a Master of the Court of Protection

except in the case of a person holding that office immediately before the

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commencement of this sub-paragraph or who had previously retired from

that office or died.

      (3)

In Schedule 5 (retirement: the relevant offices), omit the entries relating to

the Master and Deputy or temporary Master of the Court of Protection,

except in the case of a person holding any of those offices immediately

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before the commencement of this sub-paragraph.

      (4)

In Schedule 7 (retirement: transitional provisions), omit paragraph 5(5)(i)(g)

except in the case of a person holding office as a deputy or temporary Master

of the Court of Protection immediately before the commencement of this

sub-paragraph.

25

Leasehold Reform, Housing and Urban Development Act 1993 (c. 28)

38    (1)

For paragraph 4 of Schedule 2 to the Leasehold Reform, Housing and Urban

Development Act 1993 (c. 28) (landlord under a disability), substitute—

“4    (1)

This paragraph applies where a Chapter I or Chapter II landlord

lacks capacity (within the meaning of the Mental Capacity Act

30

2004) to exercise his functions as a landlord.

      (2)

For the purposes of the Chapter concerned, the landlord’s place is

to be taken—

(a)

by a donee of an enduring power of attorney or lasting

power of attorney (within the meaning of the 2004 Act), or

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a deputy appointed for him by the Court of Protection,

with power to exercise those functions, or

(b)

if no deputy or donee has that power, by a person

authorised in that respect by that court.”.

      (2)

That amendment does not affect any proceedings pending at the

40

commencement of this paragraph in which a receiver or a person authorised

under Part 7 of the Mental Health Act 1983 (c. 20) is acting on behalf of the

landlord.

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments

78

Goods Vehicles (Licensing of Operators) Act 1995 (c. 23)

39    (1)

The Goods Vehicles (Licensing of Operators) Act 1995 (c. 23) is amended as

follows.

      (2)

In section 16(5) (termination of licence), for “he becomes a patient within the

meaning of Part VII of the Mental Health Act 1983” substitute “he becomes

5

a person who lacks capacity (within the meaning of the Mental Capacity Act

2004) to use a vehicle under the licence”.

      (3)

In section 48 (licence not to be transferable, etc.)—

(a)

in subsection (2)—

(i)

for “or become a patient within the meaning of Part VII of the

10

Mental Health Act 1983” substitute “, or become a person

who lacks capacity (within the meaning of the Mental

Capacity Act 2004) to use a vehicle under the licence,”, and

(ii)

in paragraph (a), for “became a patient” substitute “became a

person who lacked capacity in that respect”, and

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(b)

in subsection (5), for “a patient within the meaning of Part VII of the

Mental Health Act 1983” substitute “a person lacking capacity”.

Disability Discrimination Act 1995 (c. 50)

40

In section 20(7) of the Disability Discrimination Act 1995 (c. 50) (regulations

to disapply provisions about incapacity), in paragraph (b), for “Part VII of

20

the Mental Health Act 1983” substitute “the Mental Capacity Act 2004”.

Trusts of Land and Appointment of Trustees Act 1996 (c. 47)

41    (1)

The Trusts of Land and Appointment of Trustees Act 1996 (c. 47) is amended

as follows.

      (2)

In section 9 (delegation by trustees), in subsection (6), for the words from “an

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enduring power” to the end substitute “an enduring power of attorney or

lasting power of attorney within the meaning of the Mental Capacity Act

2004”.

      (3)

In section 20 (the title to which becomes “Appointment of substitute for

trustee who lacks capacity”)—

30

(a)

in subsection (1)(a), for “is incapable by reason of mental disorder of

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

Mental Capacity Act 2004) to exercise”, and

(b)

in subsection (2)—

(i)

for paragraph (a) substitute—

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“(a)

a deputy appointed for the trustee by the

Court of Protection,”,

(ii)

in paragraph (b), 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

40

2004”, and

(iii)

in paragraph (c), for the words from “the authority” to the

end substitute “the Court of Protection”.

Human Rights Act 1998 (c. 42)

42

In section 4(5) of the Human Rights Act 1998 (c. 42) (courts which may make

45

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments

79

declarations of incompatibility), after paragraph (e) insert—

“(f)

the Court of Protection, in any matter being dealt with by the

President of the Family Division, the Vice-Chancellor or a

puisne judge of the High Court.”

Access to Justice Act 1999 (c. 22)

5

43

In paragraph 1 of Schedule 2 to the Access to Justice Act 1999 (c. 22) (services

excluded from the Community Legal Service), after paragraph (e) insert—

“(ea)

the creation of lasting powers of attorney under the Mental

Capacity Act 2004,

(eb)

the making of advance decisions under that Act,”.

10

Adoption and Children Act 2002 (c. 38)

44

In section 52(1)(a) of the Adoption and Children Act 2002 (c. 38) (parental

consent to adoption), for “is incapable of giving consent” substitute “lacks

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

consent”.

15

Licensing Act 2003 (c. 17)

45    (1)

The Licensing Act 2003 (c.17) is amended as follows.

      (2)

In section 27(1) of the Licensing Act 2003 (c. 17) (lapse of premises licence),

for paragraph (b) substitute—

“(b)

becomes a person who lacks capacity (within the meaning of

20

the Mental Capacity Act 2004) to hold the licence,”.

      (3)

In section 47 (interim authority notice in relation to premises licence)—

(a)

in subsection (5), for paragraph (b) substitute—

“(b)

the former holder lacks capacity (within the meaning

of the Mental Capacity Act 2004) to hold the licence

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and that person acts for him under an enduring

power of attorney or lasting power of attorney

registered under that Act,”, and

(b)

in subsection (10), omit the definition of “mentally incapable”.

Courts Act 2003 (c. 39)

30

46    (1)

The Courts Act 2003 (c. 39) is amended as follows.

      (2)

In section 1(1) (the courts in relation to which the Lord Chancellor must

discharge his general duty), after paragraph (a) insert—

“(aa)

the Court of Protection,”.

      (3)

In section 64(2) (judicial titles which the Lord Chancellor may by order

35

alter)—

(a)

omit the reference to a Master of the Court of Protection, and

(b)

at the appropriate place insert a reference to each of the following—

(i)

Senior Judge of the Court of Protection,

(ii)

President of the Court of Protection,

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(iii)

Vice-president of the Court of Protection.

Mental Capacity Bill
Schedule 7 — Repeals

80

Schedule 7

Section 63(2)

Repeals

Short title and chapter

Extent of repeal

Trustee Act 1925 (c. 19)

Section 54(3).

Law of Property Act 1925 (c. 20)

Section 205(1)(xiii).

5

Administration of Estates Act

Section 55(1)(viii)

1925 (c. 23)

U.S.A. Veterans’ Pensions

In section 1(4), the words from “or for whom” to

(Administration) Act 1949

“1983”.

(c. 45)

10

Mental Health Act 1959 (c. 72)

In Schedule 7, in Part I, the entries relating to—

section 33 of the Fines and Recoveries Act

1833,

section 68 of the Improvement of Land Act

1864,

15

section 55 of the Trustee Act 1925,

section 205(1) of the Law of Property Act

1925,

section 49 of the National Assistance Act 1948,

and

20

section 1 of the Variation of Trusts Act 1958.

Courts Act 1971 (c. 23)

In Schedule 2, in Part 1A, the words “Master of

the Court of Protection”.

Local Government Act 1972

Section 118.

(c. 70)

25

Limitation Act 1980 (c. 58)

Section 38(3) and (4).

Supreme Court Act 1981 (c. 54)

In Schedule 2, in Part 2, paragraph 11.

Mental Health Act 1983 (c. 20)

Part 7.

In section 139(1) the words from “or in, or in

pursuance” to “Part VII of this Act,”.

30

In section 145(1), in the definition of “patient”

the words “(except in Part VII of this Act)”.

In sections 146 and 147 the words from “104(4)”

to “section),”.

Schedule 3.

35

In Schedule 4, paragraphs 1, 2, 4, 5, 7, 9, 14, 20,

22, 25, 32, 38, 55 and 56.

In Schedule 5, paragraphs 26, 43, 44 and 45.

Enduring Powers of Attorney

The whole Act.

Act 1985 (c. 29)

40

Insolvency Act 1986 (c. 45)

In section 389A(3)—

the “or” immediately after paragraph (b), and

in paragraph (c), the words “Part VII of the

Mental Health Act 1983 or”.

Mental Capacity Bill
Schedule 7 — Repeals

81

Short title and chapter

Extent of repeal

Insolvency Act 1986 (c. 45)—

In section 390(4)—

cont.

the “or” immediately after paragraph (b), and

in paragraph (c), the words “Part VII of the

Mental Health Act 1983 or”.

5

Public Trustee and

Section 2.

Administration of Funds Act

Section 3(7).

Child Support Act 1991 (c. 48)

In section 50(8)—

paragraphs (b) and (d), and

10

the “or” immediately after paragraph (c).

Social Security Administration

In section 123(10)—

Act 1992 (c. 5)

in paragraph (b), “a receiver appointed under

section 99 of the Mental Health Act 1983 or”,

in paragraph (d)(i), “sub-paragraph (a) of rule

15

41(1) of the Court of Protection Rules Act 1984

or”,

in paragraph (d)(ii), “a receiver ad interim

appointed under sub-paragraph (b) of the

said rule 41(1) or”, and

20

“receiver,”.

Trustee Delegation Act 1999

Section 4.

(c. 15)

Section 6.

In section 7(3), the words “in accordance with

section 4 above”.

25

Care Standards Act 2000 (c. 14)

In Schedule 4, paragraph 8.

Licensing Act 2003 (c. 17)

In section 47(10), the definition of “mentally

incapable”.

Courts Act 2003 (c. 64)

In section 64(2), the words “Master of the Court

of Protection”.

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