05101.8-12

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

(  8  )

(5)
The Board must have—

(a)
at least one member who is a judge of the court, and

(b)
at least four members who are persons appearing to the Lord

Chancellor to have appropriate knowledge or experience of the

work of the Public Guardian.

(6)
The Lord Chancellor may by regulations make provision as to—

(a)
the appointment of members of the Board (and, in particular, the

procedures to be followed in connection with appointments);

(b)
the selection of one of the members to be the chairman;

(c)
the term of office of the chairman and members;

(d)
their resignation, suspension or removal;

(e)
the procedure of the Board (including quorum);

(f)
the validation of proceedings in the event of a vacancy among the

members or a defect in the appointment of a member.

(7)
Subject to any provision made in reliance on subsection (6)(c) or (d), a

person is to hold and vacate office as a member of the Board in accordance

with the terms of the instrument appointing him.

(8)
The Lord Chancellor may make such payments to or in respect of members

of the Board by way of reimbursement of expenses, allowances and

remuneration as he may determine.

(9)
The Board must make an annual report to the Lord Chancellor about the

discharge of its functions.”
70
Insert the following new Clause—

“Annual report

(1)
The Public Guardian must make an annual report to the Lord Chancellor

about the discharge of his functions.

(2)
The Lord Chancellor must, within one month of receiving the report, lay a

copy of it before Parliament.”
Clause 60
71
Page 33, line 18, at end insert—

““the Human Rights Convention” has the same meaning as “the

Convention” in the Human Rights Act 1998 (c. 42),”
72
Page 33, line 19, leave out “consultee” and insert “mental capacity advocate”
73
Page 33, line 30, at end insert—

““prescribed”, in relation to regulations made under this Act, means

prescribed by those regulations,”
74
Page 33, line 32, at end insert—

““public authority” has the same meaning as in the Human Rights Act

1998 (c. 42),”
Clause 61
75
Page 34, line 13, leave out from “than” to “is” in line 15 and insert “—

(  9  )

(a)
regulations under section (Loss of capacity during research project)

(loss of capacity during research project),

(b)
regulations under section 39 (adjusting role of independent mental

capacity advocacy service),

(c)
regulations under paragraph 33(1)(b) of Schedule 3 (private

international law relating to the protection of adults),

(d)
an order of the kind mentioned in section 63(6) (consequential

amendments of primary legislation), or

(e)
an order under section 64 (commencement),”
76
Page 34, line 16, at end insert—

“( )
A statutory instrument containing an Order in Council under paragraph 32

of Schedule 3 (provision to give further effect to Hague Convention) is

subject to annulment in pursuance of a resolution of either House of

Parliament.”
77
Page 34, line 18, leave out “section 39” and insert “section (Loss of capacity during

research project) or 39 or by the Lord Chancellor under paragraph 33(1)(b) of

Schedule 3”
Clause 62
78
Page 34, line 25, leave out “this Act” and insert “subsection (1)(b)”
79
Page 34, line 27, leave out “this Act” and insert “subsection (1)(b)”
Clause 63
80
Page 34, line 41, after first “Act” insert “or Measure”
81
Page 35, line 3, at end insert “or Measure”
Clause 64
82
Page 35, line 7, after “Act” insert “, other than sections 30 to 39,”
83
Page 35, line 8, at end insert—

“( )
Sections 30 to 39 come into force in accordance with provision made by

order by—

(a)
the Secretary of State, in relation to England, and

(b)
the National Assembly for Wales, in relation to Wales.”
Schedule 1
84
Page 37, line 5, leave out from “the” to “4” in line 6 and insert “duties imposed on

a donee of a lasting power of attorney under sections 1 (the principles) and”
85
Page 38, line 5, after “severally” insert “in respect of any matter”
86
Page 38, line 16, leave out “11” and insert “10A”
87
Page 38, line 43, at end insert—

(  10  )

“Instrument not made properly or containing ineffective provision

10A(1)
If it appears to the Public Guardian that an instrument accompanying an

application under paragraph 4 is not made in accordance with this

Schedule, he must not register the instrument unless the court directs

him to do so.

      (2)
Sub-paragraph (3) applies if it appears to the Public Guardian that the

instrument contains a provision which—

(a)
would be ineffective as part of a lasting power of attorney, or

(b)
would prevent the instrument from operating as a valid lasting

power of attorney.

      (3)
The Public Guardian—

(a)
must apply to the court for it to determine the matter under

section 23(1), and

(b)
pending the determination by the court, must not register the

instrument.

      (4)
Sub-paragraph (5) applies if the court determines under section 23(1)

(whether or not on an application by the Public Guardian) that the

instrument contains a provision which—

(a)
would be ineffective as part of a lasting power of attorney, or

(b)
would prevent the instrument from operating as a valid lasting

power of attorney.

      (5)
The court must—

(a)
notify the Public Guardian that it has severed the provision, or

(b)
direct him not to register the instrument.

      (6)
Where the court notifies the Public Guardian that it has severed a

provision, he must register the instrument with a note to that effect

attached to it.”
88
Page 39, line 17, leave out sub-paragraph (2) and insert—

    “(2)
If the Public Guardian is satisfied that the ground for making the

objection is established, he must not register the instrument unless the

court, on the application of the person applying for the registration—

(a)
is satisfied that the ground is not established, and

(b)
directs the Public Guardian to register the instrument.”
89
Page 40, line 28, at end insert—

“17A (1)
Sub-paragraph (2) applies if the court determines under section 23(1)

that a lasting power of attorney contains a provision which—

(a)
is ineffective as part of a lasting power of attorney, or

(b)
prevents the instrument from operating as a valid lasting power

of attorney.

      (2)
The court must—

(a)
notify the Public Guardian that it has severed the provision, or

(b)
direct him to cancel the registration of the instrument as a lasting

power of attorney.”
90
Page 41, line 10, at end insert—

(  11  )

“Severance of ineffective provisions

21A
If in the case of a registered instrument the court notifies the Public

Guardian under paragraph 17A(2)(a) that it has severed a provision of

the instrument, the Public Guardian must attach to it a note to that

effect.”
91
Page 41, line 13, leave out “or 21” and insert “, 21 or 21A”
Schedule 2
92
Page 44, line 27, leave out paragraph 10 and insert—

“10(1)
Any functions which P has as patron of a benefice may be discharged

only by a person (“R”) appointed by the court.

      (2)
R must be an individual capable of appointment under section 8(1)(b) of

the 1986 Measure (which provides for a individual able to make a

declaration of communicant status, a clerk in Holy Orders, etc. to be

appointed to discharge a registered patron’s functions).

      (3)
The 1986 Measure applies to R as it applies to an individual appointed

by the registered patron of the benefice under section 8(1)(b) or (3) of that

Measure to discharge his functions as patron.

      (4)
“The 1986 Measure” means the Patronage (Benefices) Measure 1986

(No.3).”
Schedule 3
93
Page 45, line 38, leave out paragraph 7
Schedule 6
94
Page 73, line 31, leave out “Seeking advice from independent consultee” and insert

“Instructing independent mental capacity advocate”
95
Page 77, line 37, at end insert—

“Patronage (Benefices) Measure 1986 (No. 3)

    (1)
The Patronage (Benefices) Measure 1986 (No. 3) is amended as follows.

      (2)
In section 5 (rights of patronage exercisable otherwise than by registered

patron), after subsection (3) insert—

“(3A)
The reference in subsection (3) to a power of attorney does not

include an enduring power of attorney or lasting power of

attorney (within the meaning of the Mental Capacity Act 2005).”

      (3)
In section 9 (information to be sent to designated officer when benefice

becomes vacant), after subsection (5) insert—

“(5A)
Subsections (5B) and (5C) apply where the functions of a

registered patron are, as a result of paragraph 10 of Schedule 2 to

the Mental Capacity Act 2005 (patron’s loss of capacity to

discharge functions), to be discharged by an individual

appointed by the Court of Protection.

(  12  )

(5B)
If the individual is a clerk in Holy Orders, subsection (5) applies

to him as it applies to the registered patron.

(5C)
If the individual is not a clerk in Holy Orders, subsection (1)

(other than paragraph (b)) applies to him as it applies to the

registered patron.””