Решение № 6/16 Форума по сотрудничеству в области безопасности
The following principles apply for the purposes of this Act.
A person must be assumed to have capacity unless it is established that he lacks capacity.
A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
It does not matter whether the impairment or disturbance is permanent or temporary.
A lack of capacity cannot be established merely by reference to—
a person's age or appearance, or
a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
No power which a person (“D”) may exercise under this Act— is exercisable in relation to a person under 16.
in relation to a person who lacks capacity, or
where D reasonably thinks that a person lacks capacity,
Subsection (5) is subject to section 18(3).
For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
to understand the information relevant to the decision,
to retain that information,
to use or weigh that information as part of the process of making the decision, or
to communicate his decision (whether by talking, using sign language or any other means).
A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
The information relevant to a decision includes information about the reasonably foreseeable consequences of—
deciding one way or another, or
failing to make the decision.
In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
the person's age or appearance, or
a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
He must consider—
whether it is likely that the person will at some time have capacity in relation to the matter in question, and
if it appears likely that he will, when that is likely to be.
He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
He must consider, so far as is reasonably ascertainable—
the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
the beliefs and values that would be likely to influence his decision if he had capacity, and
the other factors that he would be likely to consider if he were able to do so.
He must take into account, if it is practicable and appropriate to consult them, the views of— as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
anyone engaged in caring for the person or interested in his welfare,
any donee of a lasting power of attorney granted by the person, and
any deputy appointed for the person by the court,
The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—
are exercisable under a lasting power of attorney, or
are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.
In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.
“Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.
“Relevant circumstances” are those—
of which the person making the determination is aware, and
which it would be reasonable to regard as relevant.
This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.
But that is subject to—
the following provisions of this section, and
section 4B.
D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.
A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.
D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).
D may deprive P of liberty if, by doing so, D is carrying out arrangements authorised under Schedule AA1 (arrangements enabling the care and treatment of persons who lack capacity).
If a person (“D”) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if—
before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and
when doing the act, D reasonably believes—
that P lacks capacity in relation to the matter, and
that it will be in P's best interests for the act to be done.
D does not incur any liability in relation to the act that he would not have incurred if P—
had had capacity to consent in relation to the matter, and
had consented to D's doing the act.
Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.
Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment).
If the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court.
The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A.
The second condition is that the deprivation of liberty—
is wholly or partly for the purpose of—
giving P life-sustaining treatment, or
doing any vital act, or
consists wholly or partly of—
giving P life-sustaining treatment, or
doing any vital act.
The third condition is that the deprivation of liberty is necessary in order to—
give the life-sustaining treatment, or
do the vital act.
A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P's condition.
If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied.
The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P.
The second is that the act is a proportionate response to—
the likelihood of P's suffering harm, and
the seriousness of that harm.
For the purposes of this section D restrains P if he—
uses, or threatens to use, force to secure the doing of an act which P resists, or
restricts P's liberty of movement, whether or not P resists.
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Section 5 does not authorise a person to do an act which conflicts with a decision made, within the scope of his authority and in accordance with this Part, by—
a donee of a lasting power of attorney granted by P, or
a deputy appointed for P by the court.
But nothing in subsection (6) stops a person— while a decision as respects any relevant issue is sought from the court.
providing life-sustaining treatment, or
doing any act which he reasonably believes to be necessary to prevent a serious deterioration in P's condition,
If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.
“Necessary” means suitable to a person's condition in life and to his actual requirements at the time when the goods or services are supplied.
If an act to which section 5 applies involves expenditure, it is lawful for D—
to pledge P's credit for the purpose of the expenditure, and
to apply money in P's possession for meeting the expenditure.
If the expenditure is borne for P by D, it is lawful for D—
to reimburse himself out of money in P's possession, or
to be otherwise indemnified by P.
Subsections (1) and (2) do not affect any power under which (apart from those subsections) a person—
has lawful control of P's money or other property, and
has power to spend money for P's benefit.
A lasting power of attorney is a power of attorney under which the donor (“P”) confers on the donee (or donees) authority to make decisions about all or any of the following— and which includes authority to make such decisions in circumstances where P no longer has capacity.
P's personal welfare or specified matters concerning P's personal welfare, and
P's property and affairs or specified matters concerning P's property and affairs,
A lasting power of attorney is not created unless—
section 10 is complied with,
an instrument conferring authority of the kind mentioned in subsection (1) is made and registered in accordance with Schedule 1, and
at the time when P executes the instrument, P has reached 18 and has capacity to execute it.
An instrument which— confers no authority.
purports to create a lasting power of attorney, but
does not comply with this section, section 10 or Schedule 1,
The authority conferred by a lasting power of attorney is subject to—
the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests), and
any conditions or restrictions specified in the instrument.
A donee of a lasting power of attorney must be—
an individual who has reached 18, or
if the power relates only to P's property and affairs, either such an individual or a trust corporation.
An individual who is bankruptor is a person in relation to whom a debt relief order is made may not be appointed as donee of a lasting power of attorney in relation to P's property and affairs.
Subsections (4) to (7) apply in relation to an instrument under which two or more persons are to act as donees of a lasting power of attorney.
The instrument may appoint them to act—
jointly,
jointly and severally, or
jointly in respect of some matters and jointly and severally in respect of others.
To the extent to which it does not specify whether they are to act jointly or jointly and severally, the instrument is to be assumed to appoint them to act jointly.
If they are to act jointly, a failure, as respects one of them, to comply with the requirements of subsection (1) or (2) or Part 1 or 2 of Schedule 1 prevents a lasting power of attorney from being created.
If they are to act jointly and severally, a failure, as respects one of them, to comply with the requirements of subsection (1) or (2) or Part 1 or 2 of Schedule 1—
prevents the appointment taking effect in his case, but
does not prevent a lasting power of attorney from being created in the case of the other or others.
An instrument used to create a lasting power of attorney—
cannot give the donee (or, if more than one, any of them) power to appoint a substitute or successor, but
may itself appoint a person to replace the donee (or, if more than one, any of them) on the occurrence of an event mentioned in section 13(6)(a) to (d) which has the effect of terminating the donee's appointment.
A lasting power of attorney does not authorise the donee (or, if more than one, any of them) to do an act that is intended to restrain P, unless three conditions are satisfied.
The first condition is that P lacks, or the donee reasonably believes that P lacks, capacity in relation to the matter in question.
The second is that the donee reasonably believes that it is necessary to do the act in order to prevent harm to P.
The third is that the act is a proportionate response to—
the likelihood of P's suffering harm, and
the seriousness of that harm.
For the purposes of this section, the donee restrains P if he— or if he authorises another person to do any of those things.
uses, or threatens to use, force to secure the doing of an act which P resists, or
restricts P's liberty of movement, whether or not P resists,
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Where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P's personal welfare, the authority—
does not extend to making such decisions in circumstances other than those where P lacks, or the donee reasonably believes that P lacks, capacity,
is subject to sections 24 to 26 (advance decisions to refuse treatment), and
extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P.
But subsection (7)(c)—
does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument contains express provision to that effect, and
is subject to any conditions or restrictions in the instrument.
Where a lasting power of attorney confers authority to make decisions about P's property and affairs, it does not authorise a donee (or, if more than one, any of them) to dispose of the donor's property by making gifts except to the extent permitted by subsection (2).
The donee may make gifts— if 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.
on customary occasions to persons (including himself) who are related to or connected with the donor, or
to any charity to whom the donor made or might have been expected to make gifts,
“Customary occasion” means—
the occasion or anniversary of a birth, a marriage or the formation of a civil partnership, or
any other occasion on which presents are customarily given within families or among friends or associates.
Subsection (2) is subject to any conditions or restrictions in the instrument.
This section applies if— and in this section references to revoking the power include revoking the instrument.
P has executed an instrument with a view to creating a lasting power of attorney, or
a lasting power of attorney is registered as having been conferred by P,
P may, at any time when he has capacity to do so, revoke the power.
P's bankruptcy, or the making of a debt relief order (under Part 7A of the Insolvency Act 1986) in respect of P, revokes the power so far as it relates to P's property and affairs.
But where P is bankrupt merely because an interim bankruptcy restrictions order has effect in respect of himor where P is subject to an interim debt relief restrictions order (under Schedule 4ZB of the Insolvency Act 1986), the power is suspended, so far as it relates to P's property and affairs, for so long as the order has effect.
The occurrence in relation to a donee of an event mentioned in subsection (6)—
terminates his appointment, and
except in the cases given in subsection (7), revokes the power.
The events are—
the disclaimer of the appointment by the donee in accordance with such requirements as may be prescribed for the purposes of this section in regulations made by the Lord Chancellor,
subject to subsections (8) and (9), the death or bankruptcy of the doneeor the making of a debt relief order (under Part 7A of the Insolvency Act 1986) in respect of the donee or, if the donee is a trust corporation, its winding-up or dissolution,
subject to subsection (11), the dissolution or annulment of a marriage or civil partnership between the donor and the donee,
the lack of capacity of the donee.
The cases are—
the donee is replaced under the terms of the instrument,
he is one of two or more persons appointed to act as donees jointly and severally in respect of any matter and, after the event, there is at least one remaining donee.
The bankruptcy of a doneeor the making of a debt relief order (under Part 7A of the Insolvency Act 1986) in respect of a donee does not terminate his appointment, or revoke the power, in so far as his authority relates to P's personal welfare.
Where the donee is bankrupt merely because an interim bankruptcy restrictions order has effect in respect of himor where the donee is subject to an interim debt relief restrictions order (under Schedule 4ZB of the Insolvency Act 1986),, his appointment and the power are suspended, so far as they relate to P's property and affairs, for so long as the order has effect.
Where the donee is one of two or more appointed to act jointly and severally under the power in respect of any matter, the reference in subsection (9) to the suspension of the power is to its suspension in so far as it relates to that donee.
The dissolution or annulment of a marriage or civil partnership does not terminate the appointment of a donee, or revoke the power, if the instrument provided that it was not to do so.
Subsections (2) and (3) apply if— whether or not the registration has been cancelled at the time of the act or transaction in question.
an instrument has been registered under Schedule 1 as a lasting power of attorney, but
a lasting power of attorney was not created,
A donee who acts in purported exercise of the power does not incur any liability (to P or any other person) because of the non-existence of the power unless at the time of acting he—
knows that a lasting power of attorney was not created, or
is aware of circumstances which, if a lasting power of attorney had been created, would have terminated his authority to act as a donee.
Any transaction between the donee and another person is, in favour of that person, as valid as if the power had been in existence, unless at the time of the transaction that person has knowledge of a matter referred to in subsection (2).
If the interest of a purchaser depends on whether a transaction between the donee and the other person was valid by virtue of subsection (3), it is conclusively presumed in favour of the purchaser that the transaction was valid if—
the transaction was completed within 12 months of the date on which the instrument was registered, or
the other person makes a statutory declaration, before or within 3 months after the completion of the purchase, that he had no reason at the time of the transaction to doubt that the donee had authority to dispose of the property which was the subject of the transaction.
In its application to a lasting power of attorney which relates to matters in addition to P's property and affairs, section 5 of the Powers of Attorney Act 1971 (c. 27) (protection where power is revoked) has effect as if references to revocation included the cessation of the power in relation to P's property and affairs.
Where two or more donees are appointed under a lasting power of attorney, this section applies as if references to the donee were to all or any of them.
The court may make declarations as to—
whether a person has or lacks capacity to make a decision specified in the declaration;
whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
“Act” includes an omission and a course of conduct.
This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning—
P's personal welfare, or
P's property and affairs.
The court may—
by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or
appoint a person (a “deputy”) to make decisions on P's behalf in relation to the matter or matters.
The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).
When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that—
a decision by the court is to be preferred to the appointment of a deputy to make a decision, and
the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.
The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).
Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P's best interests, even though no application is before the court for an order, directions or an appointment on those terms.
An order of the court may be varied or discharged by a subsequent order.
The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy—
has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P's best interests, or
proposes to behave in a way that would contravene that authority or would not be in P's best interests.
If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.
If— the provision ceases to have effect for as long as the person remains ineligible.
a welfare order includes provision which authorises a person to be deprived of his liberty, and
that person becomes ineligible to be deprived of liberty by this Act,
Nothing in subsection (2) affects the power of the court under section 16(7) to vary or discharge the welfare order.
For the purposes of this section—
Schedule 1A applies for determining whether or not P is ineligible to be deprived of liberty by this Act;
“welfare order” means an order under section 16(2)(a).
The powers under section 16 as respects P's personal welfare extend in particular to—
deciding where P is to live;
deciding what contact, if any, P is to have with any specified persons;
making an order prohibiting a named person from having contact with P;
giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;
giving a direction that a person responsible for P's health care allow a different person to take over that responsibility.
Subsection (1) is subject to section 20 (restrictions on deputies).
The powers under section 16 as respects P's property and affairs extend in particular to—
the control and management of P's property;
the sale, exchange, charging, gift or other disposition of P's property;
the acquisition of property in P's name or on P's behalf;
the carrying on, on P's behalf, of any profession, trade or business;
the taking of a decision which will have the effect of dissolving a partnership of which P is a member;
the carrying out of any contract entered into by P;
the discharge of P's debts and of any of P's obligations, whether legally enforceable or not;
the settlement of any of P's property, whether for P's benefit or for the benefit of others;
the execution for P of a will;
the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise;
the conduct of legal proceedings in P's name or on P's behalf.
No will may be made under subsection (1)(i) at a time when P has not reached 18.
The powers under section 16 as respects any other matter relating to P's property and affairs may be exercised even though P has not reached 16, if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when he reaches 18.
Schedule 2 supplements the provisions of this section.
Section 16(7) (variation and discharge of court orders) is subject to paragraph 6 of Schedule 2.
Subsection (1) is subject to section 20 (restrictions on deputies).
A deputy appointed by the court must be—
an individual who has reached 18, or
as respects powers in relation to property and affairs, an individual who has reached 18 or a trust corporation.
The court may appoint an individual by appointing the holder for the time being of a specified office or position.
A person may not be appointed as a deputy without his consent.
The court may appoint two or more deputies to act—
jointly,
jointly and severally, or
jointly in respect of some matters and jointly and severally in respect of others.
When appointing a deputy or deputies, the court may at the same time appoint one or more other persons to succeed the existing deputy or those deputies—
in such circumstances, or on the happening of such events, as may be specified by the court;
for such period as may be so specified.
A deputy is to be treated as P's agent in relation to anything done or decided by him within the scope of his appointment and in accordance with this Part.
The deputy is entitled—
to be reimbursed out of P's property for his reasonable expenses in discharging his functions, and
if the court so directs when appointing him, to remuneration out of P's property for discharging them.
The court may confer on a deputy powers to—
take possession or control of all or any specified part of P's property;
exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.
The court may require a deputy—
to give to the Public Guardian such security as the court thinks fit for the due discharge of his functions, and
to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.
A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter.
Nothing in section 16(5) or 17 permits a deputy to be given power—
to prohibit a named person from having contact with P;
to direct a person responsible for P's health care to allow a different person to take over that responsibility.
A deputy may not be given powers with respect to—
the settlement of any of P's property, whether for P's benefit or for the benefit of others,
the execution for P of a will, or
the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise.
A deputy may not be given power to make a decision on behalf of P which is inconsistent with a decision made, within the scope of his authority and in accordance with this Act, by the donee of a lasting power of attorney granted by P (or, if there is more than one donee, by any of them).
A deputy may not refuse consent to the carrying out or continuation of life-sustaining treatment in relation to P.
The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests).
A deputy may not do an act that is intended to restrain P unless four conditions are satisfied.
The first condition is that, in doing the act, the deputy is acting within the scope of an authority expressly conferred on him by the court.
The second is that P lacks, or the deputy reasonably believes that P lacks, capacity in relation to the matter in question.
The third is that the deputy reasonably believes that it is necessary to do the act in order to prevent harm to P.
The fourth is that the act is a proportionate response to—
the likelihood of P's suffering harm, and
the seriousness of that harm.
For the purposes of this section, a deputy restrains P if he— or if he authorises another person to do any of those things.
uses, or threatens to use, force to secure the doing of an act which P resists, or
restricts P's liberty of movement, whether or not P resists,
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from the Court of Protection to a court having jurisdiction under the Children Act 1989 (c. 41), or
The Lord Chief Justice, with the concurrence of the Lord Chancellor, may by order make provision as to the transfer of proceedings relating to a person under 18, in such circumstances as are specified in the order—
from the Court of Protection to a court having jurisdiction under the Children Act 1989 (c. 41), or
from a court having jurisdiction under that Act to the Court of Protection.
from a court having jurisdiction under that Act to the Court of Protection.
The Lord Chief Justice may nominate any of the following to exercise his functions under this section—
the President of the Court of Protection;
a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).
This section and section 23 apply if —
a person (“P”) has executed or purported to execute an instrument with a view to creating a lasting power of attorney, or
an instrument has been registered as a lasting power of attorney conferred by P.
The court may determine any question relating to—
whether one or more of the requirements for the creation of a lasting power of attorney have been met;
whether the power has been revoked or has otherwise come to an end.
Subsection (4) applies if the court is satisfied—
that fraud or undue pressure was used to induce P—
to execute an instrument for the purpose of creating a lasting power of attorney, or
to create a lasting power of attorney, or
that the donee (or, if more than one, any of them) of a lasting power of attorney—
has behaved, or is behaving, in a way that contravenes his authority or is not in P's best interests, or
proposes to behave in a way that would contravene his authority or would not be in P's best interests.
The court may—
direct that an instrument purporting to create the lasting power of attorney is not to be registered, or
if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.
If there is more than one donee, the court may under subsection (4)(b) revoke the instrument or the lasting power of attorney so far as it relates to any of them.
“Donee” includes an intended donee.
The court may determine any question as to the meaning or effect of a lasting power of attorney or an instrument purporting to create one.
The court may—
give directions with respect to decisions—
which the donee of a lasting power of attorney has authority to make, and
which P lacks capacity to make;
give any consent or authorisation to act which the donee would have to obtain from P if P had capacity to give it.
The court may, if P lacks capacity to do so—
give directions to the donee with respect to the rendering by him of reports or accounts and the production of records kept by him for that purpose;
require the donee to supply information or produce documents or things in his possession as donee;
give directions with respect to the remuneration or expenses of the donee;
relieve the donee wholly or partly from any liability which he has or may have incurred on account of a breach of his duties as donee.
The court may authorise the making of gifts which are not within section 12(2) (permitted gifts).
Where two or more donees are appointed under a lasting power of attorney, this section applies as if references to the donee were to all or any of them.
This section applies if either of the following has been given under Schedule A1—
a standard authorisation;
an urgent authorisation.
Where a standard authorisation has been given, the court may determine any question relating to any of the following matters—
whether the relevant person meets one or more of the qualifying requirements;
the period during which the standard authorisation is to be in force;
the purpose for which the standard authorisation is given;
the conditions subject to which the standard authorisation is given.
If the court determines any question under subsection (2), the court may make an order—
varying or terminating the standard authorisation, or
directing the supervisory body to vary or terminate the standard authorisation.
Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters—
whether the urgent authorisation should have been given;
the period during which the urgent authorisation is to be in force;
the purpose for which the urgent authorisation is given.
Where the court determines any question under subsection (4), the court may make an order—
varying or terminating the urgent authorisation, or
directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation.
Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.
An order under subsection (6) may, in particular, exclude a person from liability.
“Advance decision” means a decision made by a person (“P”), after he has reached 18 and when he has capacity to do so, that if— the specified treatment is not to be carried out or continued.
at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and
at that time he lacks capacity to consent to the carrying out or continuation of the treatment,
For the purposes of subsection (1)(a), a decision may be regarded as specifying a treatment or circumstances even though expressed in layman's terms.
P may withdraw or alter an advance decision at any time when he has capacity to do so.
A withdrawal (including a partial withdrawal) need not be in writing.
An alteration of an advance decision need not be in writing (unless section 25(5) applies in relation to the decision resulting from the alteration).
An advance decision does not affect the liability which a person may incur for carrying out or continuing a treatment in relation to P unless the decision is at the material time—
valid, and
applicable to the treatment.
An advance decision is not valid if P—
has withdrawn the decision at a time when he had capacity to do so,
has, under a lasting power of attorney created after the advance decision was made, conferred authority on the donee (or, if more than one, any of them) to give or refuse consent to the treatment to which the advance decision relates, or
has done anything else clearly inconsistent with the advance decision remaining his fixed decision.
An advance decision is not applicable to the treatment in question if at the material time P has capacity to give or refuse consent to it.
An advance decision is not applicable to the treatment in question if—
that treatment is not the treatment specified in the advance decision,
any circumstances specified in the advance decision are absent, or
there are reasonable grounds for believing that circumstances exist which P did not anticipate at the time of the advance decision and which would have affected his decision had he anticipated them.
An advance decision is not applicable to life-sustaining treatment unless—
the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and
the decision and statement comply with subsection (6).
A decision or statement complies with this subsection only if—
it is in writing,
it is signed by P or by another person in P's presence and by P's direction,
the signature is made or acknowledged by P in the presence of a witness, and
the witness signs it, or acknowledges his signature, in P's presence.
The existence of any lasting power of attorney other than one of a description mentioned in subsection (2)(b) does not prevent the advance decision from being regarded as valid and applicable.
If P has made an advance decision which is— the decision has effect as if he had made it, and had had capacity to make it, at the time when the question arises whether the treatment should be carried out or continued.
valid, and
applicable to a treatment,
A person does not incur liability for carrying out or continuing the treatment unless, at the time, he is satisfied that an advance decision exists which is valid and applicable to the treatment.
A person does not incur liability for the consequences of withholding or withdrawing a treatment from P if, at the time, he reasonably believes that an advance decision exists which is valid and applicable to the treatment.
The court may make a declaration as to whether an advance decision—
exists;
is valid;
is applicable to a treatment.
Nothing in an apparent advance decision stops a person— while a decision as respects any relevant issue is sought from the court.
providing life-sustaining treatment, or
doing any act he reasonably believes to be necessary to prevent a serious deterioration in P's condition,
Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person—
consenting to marriage or a civil partnership,
consenting to have sexual relations,
consenting to a decree of divorce being granted on the basis of two years' separation,
consenting to a dissolution order being made in relation to a civil partnership on the basis of two years' separation,
consenting to a child's being placed for adoption by an adoption agency,
consenting to the making of an adoption order,
discharging parental responsibilities in matters not relating to a child's property,
giving a consent under the Human Fertilisation and Embryology Act 1990 (c. 37).
giving a consent under the Human Fertilisation and Embryology Act 2008.
“Adoption order” means—
an adoption order within the meaning of the Adoption and Children Act 2002 (c. 38) (including a future adoption order), and
an order under section 84 of that Act (parental responsibility prior to adoption abroad).
Nothing in this Act authorises anyone— if, at the time when it is proposed to treat the patient, his treatment is regulated by Part 4 of the Mental Health Act.
to give a patient medical treatment for mental disorder, or
to consent to a patient's being given medical treatment for mental disorder,
Subsection (1) does not apply in relation to any form of treatment to which section 58A of that Act (electro-convulsive therapy, etc.) applies if the patient comes within subsection (7) of that section (informal patient under 18 who cannot give consent).
“Medical treatment”, “mental disorder” and “patient” have the same meaning as in that Act.
Section 5 does not apply to an act to which section 64B of the Mental Health Act applies (treatment of community patients not recalled to hospital).
Nothing in this Act permits a decision on voting at an election for any public office, or at a referendum, to be made on behalf of a person.
“Referendum” has the same meaning as in section 101 of the Political Parties, Elections and Referendums Act 2000 (c. 41).
Intrusive research carried out on, or in relation to, a person who lacks capacity to consent to it is unlawful unless it is carried out—
as part of a research project which is for the time being approved by the appropriate body for the purposes of this Act in accordance with section 31, and
in accordance with sections 32 and 33.
Research is intrusive if it is of a kind that would be unlawful if it was carried out—
on or in relation to a person who had capacity to consent to it, but
without his consent.
A clinical trial which is subject to the provisions of clinical trials regulations is not to be treated as research for the purposes of this section.
Research is not intrusive to the extent that it consists of the use of a person's human cells to bring about the creation in vitro of an embryo or human admixed embryo, or the subsequent storage or use of an embryo or human admixed embryo so created.
“Appropriate body”, in relation to a research project, means the person, committee or other body specified in regulations made by the appropriate authority as the appropriate body in relation to a project of the kind in question.
Expressions used in subsection (3A) and in Schedule 3 to the Human Fertilisation and Embryology Act 1990 (consents to use or storage of gametes, embryos or human admixed embryos etc.) have the same meaning in that subsection as in that Schedule.
“Clinical trials regulations” means—
the Medicines for Human Use (Clinical Trials) Regulations 2004 (S.I. 2004/1031) and any other regulations replacing those regulations or amending them, and
any other regulations relating to clinical trials and designated by the Secretary of State as clinical trials regulations for the purposes of this section.
In this section, section 32 and section 34, “appropriate authority” means—
in relation to the carrying out of research in England, the Secretary of State, and
in relation to the carrying out of research in Wales, the National Assembly for Wales.
The appropriate body may not approve a research project for the purposes of this Act unless satisfied that the following requirements will be met in relation to research carried out as part of the project on, or in relation to, a person who lacks capacity to consent to taking part in the project (“P”).
The research must be connected with—
an impairing condition affecting P, or
its treatment.
“Impairing condition” means a condition which is (or may be) attributable to, or which causes or contributes to (or may cause or contribute to), the impairment of, or disturbance in the functioning of, the mind or brain.
There must be reasonable grounds for believing that research of comparable effectiveness cannot be carried out if the project has to be confined to, or relate only to, persons who have capacity to consent to taking part in it.
The research must—
have the potential to benefit P without imposing on P a burden that is disproportionate to the potential benefit to P, or
be intended to provide knowledge of the causes or treatment of, or of the care of persons affected by, the same or a similar condition.
If the research falls within paragraph (b) of subsection (5) but not within paragraph (a), there must be reasonable grounds for believing—
that the risk to P from taking part in the project is likely to be negligible, and
that anything done to, or in relation to, P will not—
interfere with P's freedom of action or privacy in a significant way, or
be unduly invasive or restrictive.
There must be reasonable arrangements in place for ensuring that the requirements of sections 32 and 33 will be met.
This section applies if a person (“R”)—
is conducting an approved research project, and
wishes to carry out research, as part of the project, on or in relation to a person (“P”) who lacks capacity to consent to taking part in the project.
R must take reasonable steps to identify a person who—
otherwise than in a professional capacity or for remuneration, is engaged in caring for P or is interested in P's welfare, and
is prepared to be consulted by R under this section.
If R is unable to identify such a person he must, in accordance with guidance issued by the appropriate authority, nominate a person who—
is prepared to be consulted by R under this section, but
has no connection with the project.
R must provide the person identified under subsection (2), or nominated under subsection (3), with information about the project and ask him—
for advice as to whether P should take part in the project, and
what, in his opinion, P's wishes and feelings about taking part in the project would be likely to be if P had capacity in relation to the matter.
If, at any time, the person consulted advises R that in his opinion P's wishes and feelings would be likely to lead him to decline to take part in the project (or to wish to withdraw from it) if he had capacity in relation to the matter, R must ensure—
if P is not already taking part in the project, that he does not take part in it;
if P is taking part in the project, that he is withdrawn from it.
But subsection (5)(b) does not require treatment that P has been receiving as part of the project to be discontinued if R has reasonable grounds for believing that there would be a significant risk to P's health if it were discontinued.
The fact that a person is the donee of a lasting power of attorney given by P, or is P's deputy, does not prevent him from being the person consulted under this section.
Subsection (9) applies if treatment is being, or is about to be, provided for P as a matter of urgency and R considers that, having regard to the nature of the research and of the particular circumstances of the case—
it is also necessary to take action for the purposes of the research as a matter of urgency, but
it is not reasonably practicable to consult under the previous provisions of this section.
R may take the action if—
he has the agreement of a registered medical practitioner who is not involved in the organisation or conduct of the research project, or
where it is not reasonably practicable in the time available to obtain that agreement, he acts in accordance with a procedure approved by the appropriate body at the time when the research project was approved under section 31.
But R may not continue to act in reliance on subsection (9) if he has reasonable grounds for believing that it is no longer necessary to take the action as a matter of urgency.
This section applies in relation to a person who is taking part in an approved research project even though he lacks capacity to consent to taking part.
Nothing may be done to, or in relation to, him in the course of the research—
to which he appears to object (whether by showing signs of resistance or otherwise) except where what is being done is intended to protect him from harm or to reduce or prevent pain or discomfort, or
which would be contrary to— of which R is aware.
an advance decision of his which has effect, or
any other form of statement made by him and not subsequently withdrawn,
The interests of the person must be assumed to outweigh those of science and society.
If he indicates (in any way) that he wishes to be withdrawn from the project he must be withdrawn without delay.
P must be withdrawn from the project, without delay, if at any time the person conducting the research has reasonable grounds for believing that one or more of the requirements set out in section 31(2) to (7) is no longer met in relation to research being carried out on, or in relation to, P.
But neither subsection (4) nor subsection (5) requires treatment that P has been receiving as part of the project to be discontinued if R has reasonable grounds for believing that there would be a significant risk to P's health if it were discontinued.
This section applies where a person (“P”)—
has consented to take part in a research project begun before the commencement of section 30, but
before the conclusion of the project, loses capacity to consent to continue to take part in it.
The appropriate authority may by regulations provide that, despite P's loss of capacity, research of a prescribed kind may be carried out on, or in relation to, P if—
the project satisfies prescribed requirements,
any information or material relating to P which is used in the research is of a prescribed description and was obtained before P's loss of capacity, and
the person conducting the project takes in relation to P such steps as may be prescribed for the purpose of protecting him.
The regulations may, in particular,—
make provision about when, for the purposes of the regulations, a project is to be treated as having begun;
include provision similar to any made by section 31, 32 or 33.
The responsible authority must make such arrangements as it considers reasonable to enable persons (“independent mental capacity advocates”) to be available to represent and support persons to whom acts or decisions proposed under sections 37, 38 and 39 relate or persons who fall within section 39A, 39C or 39D.
The appropriate authority may make regulations as to the appointment of independent mental capacity advocates.
The regulations may, in particular, provide—
that a person may act as an independent mental capacity advocate only in such circumstances, or only subject to such conditions, as may be prescribed;
for the appointment of a person as an independent mental capacity advocate to be subject to approval in accordance with the regulations.
In making arrangements under subsection (1), the responsible authority must have regard to the principle that a person to whom a proposed act or decision relates should, so far as practicable, be represented and supported by a person who is independent of any person who will be responsible for the act or decision.
The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.
For the purpose of enabling him to carry out his functions, an independent mental capacity advocate—
may interview in private the person whom he has been instructed to represent, and
may, at all reasonable times, examine and take copies of— which the person holding the record considers may be relevant to the independent mental capacity advocate's investigation.
any health record,
any record of, or held by, a local authority and compiled in connection with a social services function, and
any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) , Chapter 2 of Part 1 of the Health and Social Care Act 2008 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2),
In subsections (1) and (4), “ the responsible authority ” means—
in relation to the provision of the services of independent mental capacity advocates in the area of a local authority in England, that local authority, and
in relation to the provision of the services of independent mental capacity advocates in Wales, the Welsh Ministers.
In this section, section 36 and section 37, “the appropriate authority” means—
in relation to the provision of the services of independent mental capacity advocates in England, the Secretary of State, and
in relation to the provision of the services of independent mental capacity advocates in Wales, the National Assembly for Wales.
In subsection (6A)(a), “ local authority ” has the meaning given in section 64(1) except that it does not include the council of a county or county borough in Wales.
The appropriate authority may make regulations as to the functions of independent mental capacity advocates.
The regulations may, in particular, make provision requiring an advocate to take such steps as may be prescribed for the purpose of—
providing support to the person whom he has been instructed to represent (“P”) so that P may participate as fully as possible in any relevant decision;
obtaining and evaluating relevant information;
ascertaining what P's wishes and feelings would be likely to be, and the beliefs and values that would be likely to influence P, if he had capacity;
ascertaining what alternative courses of action are available in relation to P;
obtaining a further medical opinion where treatment is proposed and the advocate thinks that one should be obtained.
The regulations may also make provision as to circumstances in which the advocate may challenge, or provide assistance for the purpose of challenging, any relevant decision.
This section applies if an NHS body—
is proposing to provide, or secure the provision of, serious medical treatment for a person (“P”) who lacks capacity to consent to the treatment, and
is satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P's best interests.
But this section does not apply if P's treatment is regulated by Part 4 or 4A of the Mental Health Act.
Before the treatment is provided, the NHS body must instruct an independent mental capacity advocate to represent P.
If the treatment needs to be provided as a matter of urgency, it may be provided even though the NHS body has not been able to comply with subsection (3).
The NHS body must, in providing or securing the provision of treatment for P, take into account any information given, or submissions made, by the independent mental capacity advocate.
“Serious medical treatment” means treatment which involves providing, withholding or withdrawing treatment of a kind prescribed by regulations made by the appropriate authority.
“NHS body” has such meaning as may be prescribed by regulations made for the purposes of this section by—
the Secretary of State, in relation to bodies in England, or
the National Assembly for Wales, in relation to bodies in Wales.
This section applies if an NHS body proposes to make arrangements— and is satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate for it to consult in determining what would be in P's best interests.
for the provision of accommodation in a hospital or care home for a person (“P”) who lacks capacity to agree to the arrangements, or
for a change in P's accommodation to another hospital or care home,
But this section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.
And this section does not apply if—
an independent mental capacity advocate must be appointed under section 39A or 39C (whether or not by the NHS body) to represent P, and
the hospital or care home in which P is to be accommodated under the arrangements referred to in this section is the relevant hospital or care home under the authorisation referred to in that section.
Before making the arrangements, the NHS body must instruct an independent mental capacity advocate to represent P unless it is satisfied that—
the accommodation is likely to be provided for a continuous period which is less than the applicable period, or
the arrangements need to be made as a matter of urgency.
If the NHS body— it must instruct an independent mental capacity advocate to represent P.
did not instruct an independent mental capacity advocate to represent P before making the arrangements because it was satisfied that subsection (3)(a) or (b) applied, but
subsequently has reason to believe that the accommodation is likely to be provided for a continuous period—
beginning with the day on which accommodation was first provided in accordance with the arrangements, and
ending on or after the expiry of the applicable period,
The NHS body must, in deciding what arrangements to make for P, take into account any information given, or submissions made, by the independent mental capacity advocate.
“Care home” means—
a care home in England within the meaning given in section 3 of the Care Standards Act 2000 (c. 14), and
a place in Wales at which a care home service within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 is provided wholly or mainly to persons aged 18 or over.
“Hospital” means—
in relation to England, a hospital as defined by section 275 of the National Health Service Act 2006; and
in relation to Wales, a health service hospital as defined by section 206 of the National Health Service (Wales) Act 2006 or an independent hospital as defined by section 2 of the Care Standards Act 2000.
“NHS body” has such meaning as may be prescribed by regulations made for the purposes of this section by—
the Secretary of State, in relation to bodies in England, or
the National Assembly for Wales, in relation to bodies in Wales.
“Applicable period” means—
in relation to accommodation in a hospital, 28 days, and
in relation to accommodation in a care home, 8 weeks.
For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.
This section applies if a local authority propose to make arrangements— and are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate for them to consult in determining what would be in P's best interests.
for the provision of residential accommodation for a person (“P”) who lacks capacity to agree to the arrangements, or
for a change in P's residential accommodation,
But this section applies only if—
in the case of a local authority in England, subsection (1B) applies;
in the case of a local authority in Wales, subsection (2) applies.
This subsection applies if the accommodation is to be provided in accordance with— ...
Part 4 of the Social Services and Well-being (Wales) Act 2014; or
section 117 of the Mental Health Act,
This subsection applies if the accommodation is to be provided in accordance with—
Part 1 of the Care Act 2014, or
section 117 of the Mental Health Act.
This section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.
Before making the arrangements, the local authority must instruct an independent mental capacity advocate to represent P unless they are satisfied that—
the accommodation is likely to be provided for a continuous period of less than 8 weeks, or
the arrangements need to be made as a matter of urgency.
If the local authority— they must instruct an independent mental capacity advocate to represent P.
did not instruct an independent mental capacity advocate to represent P before making the arrangements because they were satisfied that subsection (4)(a) or (b) applied, but
subsequently have reason to believe that the accommodation is likely to be provided for a continuous period that will end 8 weeks or more after the day on which accommodation was first provided in accordance with the arrangements,
And this section does not apply if—
an independent mental capacity advocate must be appointed under section 39A or 39C (whether or not by the local authority) to represent P, and
the place in which P is to be accommodated under the arrangements referred to in this section is the relevant hospital or care home under the authorisation referred to in that section.
The local authority must, in deciding what arrangements to make for P, take into account any information given, or submissions made, by the independent mental capacity advocate.
For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.
This section applies if—
a person (“P”) becomes subject to Schedule A1, and
the managing authority of the relevant hospital or care home are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P's best interests.
The managing authority must notify the supervisory body that this section applies.
The supervisory body must instruct an independent mental capacity advocate to represent P.
Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section.
This section is subject to paragraph 161 of Schedule A1.
For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.
a person nominated by P (in whatever manner) as a person to be consulted in matters affecting his interests,
The duty imposed by section 37(3), 38(3) or (4) , 39(4) or (5), 39A(3), 39C(3) or 39D(2) does not apply where there is—
a person nominated by P (in whatever manner) as a person to be consulted on matters to which that duty relates,
a donee of a lasting power of attorney created by P who is authorised to make decisions in relation to those matters, or
a deputy appointed by the court for P with power to make decisions in relation to those matters.
a donee of a lasting power of attorney created by P,
A person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, a person nominated by P as a person to be consulted in matters to which a duty mentioned in subsection (1) relates.
a deputy appointed by the court for P, or
a donee of an enduring power of attorney (within the meaning of Schedule 4) created by P.
This section applies for the purposes of section 39A.
P becomes subject to Schedule A1 in any of the following cases.
The first case is where an urgent authorisation is given in relation to P under paragraph 76(2) of Schedule A1 (urgent authorisation given before request made for standard authorisation).
The second case is where the following conditions are met.
The first condition is that a request is made under Schedule A1 for a standard authorisation to be given in relation to P (“the requested authorisation”).
The second condition is that no urgent authorisation was given under paragraph 76(2) of Schedule A1 before that request was made.
The third condition is that the requested authorisation will not be in force on or before, or immediately after, the expiry of an existing standard authorisation.
The expiry of a standard authorisation is the date when the authorisation is expected to cease to be in force.
The third case is where, under paragraph 69 of Schedule A1, the supervisory body select a person to carry out an assessment of whether or not the relevant person is a detained resident.
The appropriate authority may make regulations—
expanding the role of independent mental capacity advocates in relation to persons who lack capacity, and
adjusting the obligation to make arrangements imposed by section 35.
The regulations may, in particular—
prescribe circumstances (different to those set out in sections 37, 38 and 39) in which an independent mental capacity advocate must, or circumstances in which one may, be instructed by a person of a prescribed description to represent a person who lacks capacity, and
include provision similar to any made by section 37, 38, 39 or 40.
“Appropriate authority” has the same meaning as in section 35.
This section applies if—
an authorisation under Schedule A1 is in force in relation to a person (“P”),
the appointment of a person as P's representative ends in accordance with regulations made under Part 10 of Schedule A1, and
the managing authority of the relevant hospital or care home are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P's best interests.
The managing authority must notify the supervisory body that this section applies.
The supervisory body must instruct an independent mental capacity advocate to represent P.
Paragraph 159 of Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section.
The appointment of an independent mental capacity advocate under this section ends when a new appointment of a person as P's representative is made in accordance with Part 10 of Schedule A1.
For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.
This section applies if—
an authorisation under Schedule A1 is in force in relation to a person (“P”),
P has a representative (“R”) appointed under Part 10 of Schedule A1, and
R is not being paid under regulations under Part 10 of Schedule A1 for acting as P's representative.
The supervisory body must instruct an independent mental capacity advocate to represent P in any of the following cases.
The first case is where P makes a request to the supervisory body to instruct an advocate.
The second case is where R makes a request to the supervisory body to instruct an advocate.
The third case is where the supervisory body have reason to believe one or more of the following—
that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights;
that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it;
that P and R are each unlikely to exercise a relevant right when it would be reasonable to exercise it.
The duty in subsection (2) is subject to section 39E.
If an advocate is appointed under this section, the advocate is, in particular, to take such steps as are practicable to help P and R to understand the following matters—
the effect of the authorisation;
the purpose of the authorisation;
the duration of the authorisation;
any conditions to which the authorisation is subject;
the reasons why each assessor who carried out an assessment in connection with the request for the authorisation, or in connection with a review of the authorisation, decided that P met the qualifying requirement in question;
the relevant rights;
how to exercise the relevant rights.
The advocate is, in particular, to take such steps as are practicable to help P or R—
to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right, or
to exercise the right of review, if it appears to the advocate that P or R wishes to exercise that right.
If the advocate helps P or R to exercise the right of review—
the advocate may make submissions to the supervisory body on the question of whether a qualifying requirement is reviewable;
the advocate may give information, or make submissions, to any assessor carrying out a review assessment.
In this section—
“relevant rights” means—
This section applies if an advocate is already representing P in accordance with an instruction under section 39D.
Section 39D(2) does not require another advocate to be instructed, unless the following conditions are met.
The first condition is that the existing advocate was instructed—
because of a request by R, or
because the supervisory body had reason to believe one or more of the things in section 39D(5).
The second condition is that the other advocate would be instructed because of a request by P.
The Lord Chancellor must prepare and issue one or more codes of practice—
for the guidance of persons assessing whether a person has capacity in relation to any matter,
for the guidance of persons acting in connection with the care or treatment of another person (see section 5),
for the guidance of donees of lasting powers of attorney,
for the guidance of deputies appointed by the court,
for the guidance of persons carrying out research in reliance on any provision made by or under this Act (and otherwise with respect to sections 30 to 34),
for the guidance of independent mental capacity advocates,
for the guidance of persons exercising functions under Schedule A1,
with respect to the provisions of sections 24 to 26 (advance decisions and apparent advance decisions), and
for the guidance of representatives appointed under Part 10 of Schedule A1,
with respect to such other matters concerned with this Act as he thinks fit.
The Lord Chancellor may from time to time revise a code.
The Lord Chancellor may delegate the preparation or revision of the whole or any part of a code so far as he considers expedient.
It is the duty of a person to have regard to any relevant code if he is acting in relation to a person who lacks capacity and is doing so in one or more of the following ways—
as the donee of a lasting power of attorney,
as a deputy appointed by the court,
as a person carrying out research in reliance on any provision made by or under this Act (see sections 30 to 34),
as an independent mental capacity advocate,
in the exercise of functions under Schedule A1,
in a professional capacity,
as a representative appointed under Part 10 of Schedule A1,
for remuneration.
If it appears to a court or tribunal conducting any criminal or civil proceedings that— is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question.
a provision of a code, or
a failure to comply with a code,
A code under subsection (1)(d) may contain separate guidance for deputies appointed by virtue of paragraph 1(2) of Schedule 5 (functions of deputy conferred on receiver appointed under the Mental Health Act).
In this section and in section 43, “code” means a code prepared or revised under this section.
Before preparing or revising a code, the Lord Chancellor must consult—
the National Assembly for Wales, and
such other persons as he considers appropriate.
The Lord Chancellor may not issue a code unless—
a draft of the code has been laid by him before both Houses of Parliament, and
the 40 day period has elapsed without either House resolving not to approve the draft.
The Lord Chancellor must arrange for any code that he has issued to be published in such a way as he considers appropriate for bringing it to the attention of persons likely to be concerned with its provisions.
“40 day period”, in relation to the draft of a proposed code, means—
if the draft is laid before one House on a day later than the day on which it is laid before the other House, the period of 40 days beginning with the later of the two days;
in any other case, the period of 40 days beginning with the day on which it is laid before each House.
In calculating the period of 40 days, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.
Subsection (2) applies if a person (“D”)—
has the care of a person (“P”) who lacks, or whom D reasonably believes to lack, capacity,
is the donee of a lasting power of attorney, or an enduring power of attorney (within the meaning of Schedule 4), created by P, or
is a deputy appointed by the court for P.
D is guilty of an offence if he ill-treats or wilfully neglects P.
A person guilty of an offence under this section is liable—
on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine not exceeding the statutory maximum or both;
on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both.
There is to be a superior court of record known as the Court of Protection.
The court is to have an official seal.
The court may sit at any place in England and Wales, on any day and at any time.
The court is to have a central office and registry at a place appointed by the Lord Chancellor , after consulting the Lord Chief Justice.
The Lord Chancellor may , after consulting the Lord Chief Justice, designate as additional registries of the court any district registry of the High Court and any county court office.
The Lord Chief Justice may nominate any of the following to exercise his functions under this section—
the President of the Court of Protection;
a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).
The office of the Supreme Court called the Court of Protection ceases to exist.
Subject to Court of Protection Rules under section 51(2)(d), the jurisdiction of the court is exercisable by a judge nominated for that purpose by—
the Lord Chief Justice, or
where nominated by the Lord Chief Justice to act on his behalf under this subsection—
the President of the Court of Protection; or
a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).
To be nominated, a judge must be—
the President of the Family Division,
the Chancellor of the High Court,
a puisne judge of the High Court,
a circuit judge, ...
a district judge.
a District Judge (Magistrates' Courts),
a judge of the First-tier Tribunal, or of the Upper Tribunal, by virtue of appointment under paragraph 1(1) of Schedule 2 or 3 to the Tribunals, Courts and Enforcement Act 2007,
a transferred-in judge of the First-tier Tribunal or of the Upper Tribunal (see section 31(2) of that Act),
a deputy judge of the Upper Tribunal (whether under paragraph 7 of Schedule 3 to, or section 31(2) of, that Act),
the Chamber President, or Deputy Chamber President, of a chamber of the First-tier Tribunal or of a chamber of the Upper Tribunal,
the Judge Advocate General,
a Recorder,
the holder of an office listed in the first column of the table in section 89(3C) of the Senior Courts Act 1981 (senior High Court Masters etc ),
a holder of an office listed in column 1 of Part 2 of Schedule 2 to that Act (High Court Masters etc ),
a deputy district judge appointed under section 102 of that Act or under section 8 of the County Courts Act 1984,
a member of a panel of Employment Judges established for England and Wales or for Scotland,
a person appointed under section 30(1)(a) or (b) of the Courts-Martial (Appeals) Act 1951 (assistants to the Judge Advocate General),
a deputy judge of the High Court,
the Senior President of Tribunals,
an ordinary judge of the Court of Appeal (including the vice-president, if any, of either division of that court),
the President of the Queen's Bench Division,
the Master of the Rolls, or
the Lord Chief Justice.
The Lord Chief Justice, after consulting the Lord Chancellor, must—
appoint one of the judges nominated by virtue of subsection (2)(a) to (c) to be President of the Court of Protection, and
appoint another of those judges to be Vice-President of the Court of Protection.
The Lord Chief Justice, after consulting the Lord Chancellor, must appoint one of the judges nominated by virtue of subsection (2)(d) to (q) to be Senior Judge of the Court of Protection, having such administrative functions in relation to the court as the Lord Chancellor , after consulting the Lord Chief Justice, may direct.
The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.
Section 204 of the Law of Property Act 1925 (c. 20) (orders of High Court conclusive in favour of purchasers) applies in relation to orders and directions of the court as it applies to orders of the High Court.
Office copies of orders made, directions given or other instruments issued by the court and sealed with its official seal are admissible in all legal proceedings as evidence of the originals without any further proof.
The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if—
there is reason to believe that P lacks capacity in relation to the matter,
the matter is one to which its powers under this Act extend, and
it is in P's best interests to make the order, or give the directions, without delay.
This section applies where, in proceedings brought in respect of a person (“P”) under Part 1, the court is considering a question relating to P.
The court may require a report to be made to it by the Public Guardian or by a Court of Protection Visitor.
The court may require a local authority, or an NHS body, to arrange for a report to be made—
by one of its officers or employees, or
by such other person (other than the Public Guardian or a Court of Protection Visitor) as the authority, or the NHS body, considers appropriate.
The report must deal with such matters relating to P as the court may direct.
Court of Protection Rules may specify matters which, unless the court directs otherwise, must also be dealt with in the report.
The report may be made in writing or orally, as the court may direct.
In complying with a requirement, the Public Guardian or a Court of Protection Visitor may, at all reasonable times, examine and take copies of— so far as the record relates to P.
any health record,
any record of, or held by, a local authority and compiled in connection with a social services function, and
any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) , Chapter 2 of Part 1 of the Health and Social Care Act 2008 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016,
If the Public Guardian or a Court of Protection Visitor is making a visit in the course of complying with a requirement, he may interview P in private.
If a Court of Protection Visitor who is a Special Visitor is making a visit in the course of complying with a requirement, he may if the court so directs carry out in private a medical, psychiatric or psychological examination of P's capacity and condition.
“NHS body” has the meaning given in section 148 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43).
“Requirement” means a requirement imposed under subsection (2) or (3).
No permission is required for an application to the court for the exercise of any of its powers under this Act—
by a person who lacks, or is alleged to lack, capacity,
if such a person has not reached 18, by anyone with parental responsibility for him,
by the donor or a donee of a lasting power of attorney to which the application relates,
by a deputy appointed by the court for a person to whom the application relates, or
by a person named in an existing order of the court, if the application relates to the order.
Nor is permission required for an application to the court under section 21A by the relevant person's representative.
But, subject to Court of Protection Rules and to paragraph 20(2) of Schedule 3 (declarations relating to private international law), permission is required for any other application to the court.
In deciding whether to grant permission the court must, in particular, have regard to—
the applicant's connection with the person to whom the application relates,
the reasons for the application,
the benefit to the person to whom the application relates of a proposed order or directions, and
whether the benefit can be achieved in any other way.
“Parental responsibility” has the same meaning as in the Children Act 1989 (c. 41).
Rules of court with respect to the practice and procedure of the court (to be called “Court of Protection Rules”) may be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005.
Court of Protection Rules may, in particular, make provision—
as to the manner and form in which proceedings are to be commenced;
as to the persons entitled to be notified of, and be made parties to, the proceedings;
for the allocation, in such circumstances as may be specified, of any specified description of proceedings to a specified judge or to specified descriptions of judges;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
for enabling the court to appoint a suitable person (who may, with his consent, be the Official Solicitor) to act in the name of, or on behalf of, or to represent the person to whom the proceedings relate;
for enabling an application to the court to be disposed of without a hearing;
for enabling the court to proceed with, or with any part of, a hearing in the absence of the person to whom the proceedings relate;
for enabling or requiring the proceedings or any part of them to be conducted in private and for enabling the court to determine who is to be admitted when the court sits in private and to exclude specified persons when it sits in public;
as to what may be received as evidence (whether or not admissible apart from the rules) and the manner in which it is to be presented;
for the enforcement of orders made and directions given in the proceedings.
Court of Protection Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions.
Court of Protection Rules may make different provision for different areas.
Directions as to the practice and procedure of the court may be given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.
Practice directions given otherwise than under subsection (1) may not be given without the approval of—
the Lord Chancellor, and
the Lord Chief Justice.
The Lord Chief Justice may nominate any of the following to exercise his functions under this section—
the President of the Court of Protection;
a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).
Subject to the provisions of this section, an appeal lies to the Court of Appeal from any decision of the court.
Court of Protection Rules may provide that, where a decision of the court is made by a specified description of person, an appeal from the decision lies to a specified description of judge of the court and not to the Court of Appeal.
a person exercising the jurisdiction of the court by virtue of rules made under section 51(2)(d),
a district judge, or
a circuit judge,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
in relation to a person mentioned in subsection (2)(a), a circuit judge or a district judge;
in relation to a person mentioned in subsection (2)(b), a circuit judge;
in relation to any person mentioned in subsection (2), one of the judges nominated by virtue of section 46(2)(a) to (c).
Court of Protection Rules may make provision—
that, in such cases as may be specified, an appeal from a decision of the court may not be made without permission;
as to the person or persons entitled to grant permission to appeal;
as to any requirements to be satisfied before permission is granted;
that where a ... judge of the court makes a decision on an appeal, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—
the appeal would raise an important point of principle or practice, or
there is some other compelling reason for the Court of Appeal to hear it;
as to any considerations to be taken into account in relation to granting or refusing permission to appeal.
The Lord Chancellor may with the consent of the Treasury by order prescribe fees payable in respect of anything dealt with by the court.
An order under this section may in particular contain provision as to—
scales or rates of fees;
exemptions from and reductions in fees;
remission of fees in whole or in part.
Before making an order under this section, the Lord Chancellor must consult—
the President of the Court of Protection,
the Vice-President of the Court of Protection, and
the Senior Judge of the Court of Protection.
The Lord Chancellor must take such steps as are reasonably practicable to bring information about fees to the attention of persons likely to have to pay them.
Fees payable under this section are recoverable summarily as a civil debt.
Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are in its discretion.
The rules may in particular make provision for regulating matters relating to the costs of those proceedings, including prescribing scales of costs to be paid to legal or other representatives.
The court has full power to determine by whom and to what extent the costs are to be paid.
The court may, in any proceedings— the whole of any wasted costs or such part of them as may be determined in accordance with the rules.
disallow, or
order the legal or other representatives concerned to meet,
“Legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.
“Wasted costs” means any costs incurred by a party—
as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or
which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.
Court of Protection Rules may make provision—
as to the way in which, and funds from which, fees and costs are to be paid;
for charging fees and costs upon the estate of the person to whom the proceedings relate;
for the payment of fees and costs within a specified time of the death of the person to whom the proceedings relate or the conclusion of the proceedings.
A charge on the estate of a person created by virtue of subsection (1)(b) does not cause any interest of the person in any property to fail or determine or to be prevented from recommencing.
For the purposes of this Act, there is to be an officer, to be known as the Public Guardian.
The Public Guardian is to be appointed by the Lord Chancellor.
There is to be paid to the Public Guardian out of money provided by Parliament such salary as the Lord Chancellor may determine.
The Lord Chancellor may, after consulting the Public Guardian— as the Lord Chancellor thinks necessary for the proper discharge of the Public Guardian's functions.
provide him with such officers and staff, or
enter into such contracts with other persons for the provision (by them or their sub-contractors) of officers, staff or services,
Any functions of the Public Guardian may, to the extent authorised by him, be performed by any of his officers.
The Public Guardian has the following functions—
establishing and maintaining a register of lasting powers of attorney,
establishing and maintaining a register of orders appointing deputies,
supervising deputies appointed by the court,
directing a Court of Protection Visitor to visit— and to make a report to the Public Guardian on such matters as he may direct,
a donee of a lasting power of attorney,
a deputy appointed by the court, or
the person granting the power of attorney or for whom the deputy is appointed (“P”),
receiving security which the court requires a person to give for the discharge of his functions,
receiving reports from donees of lasting powers of attorney and deputies appointed by the court,
reporting to the court on such matters relating to proceedings under this Act as the court requires,
dealing with representations (including complaints) about the way in which a donee of a lasting power of attorney or a deputy appointed by the court is exercising his powers,
publishing, in any manner the Public Guardian thinks appropriate, any information he thinks appropriate about the discharge of his functions.
The functions conferred by subsection (1)(c) and (h) may be discharged in co-operation with any other person who has functions in relation to the care or treatment of P.
The Public Guardian also has the following functions—
establishing and maintaining a register of guardianship orders,
supervising guardians,
receiving security which the court requires a guardian to give for the exercise of the guardian’s functions,
receiving reports from guardians,
reporting to the court on such matters relating to proceedings under the Guardianship (Missing Persons) Act 2017 as the court requires,
dealing with representations (including complaints) about the way in which a guardian is exercising the guardian’s functions, and
publishing, in any manner the Public Guardian thinks appropriate, information about the exercise of his or her functions in connection with guardians and guardianship orders.
The Lord Chancellor may by regulations make provision—
conferring on the Public Guardian other functions in connection with this Act or the Guardianship (Missing Persons) Act 2017 ;
in connection with the discharge by the Public Guardian of his functions.
Regulations made under subsection (3)(b) may in particular make provision as to—
the giving of security by deputies appointed by the court or guardians and the enforcement and discharge of security so given;
the fees which may be charged by the Public Guardian;
the way in which, and funds from which, such fees are to be paid;
exemptions from and reductions in such fees;
remission of such fees in whole or in part;
the making of reports to the Public Guardian by deputies appointed by the court and others who are directed by the court to carry out any transaction for a person who lacks capacity.
the making of reports to the Public Guardian by guardians.
For the purpose of enabling him to carry out his functions in relation to lasting powers of attorney or deputies , the Public Guardian may, at all reasonable times, examine and take copies of— so far as the record relates to P.
any health record,
any record of, or held by, a local authority and compiled in connection with a social services function, and
any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) , Chapter 2 of Part 1 of the Health and Social Care Act 2008 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016,
The Public Guardian may also for that purpose interview P in private.
In this section “guardian” and “guardianship order” have the same meaning as in the Guardianship (Missing Persons) Act 2017.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
There is to be a body, to be known as the Public Guardian Board.
The Board’s duty is to scrutinise and review the way in which the Public Guardian discharges his functions and to make such recommendations to the Lord Chancellor about that matter as it thinks appropriate.
The Lord Chancellor must, in discharging his functions under sections 57 and 58, give due consideration to recommendations made by the Board.
The members of the Board are to be appointed by the Lord Chancellor.
The Board must have—
at least one member who is a judge of the court, and
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.
The Lord Chancellor may by regulations make provision as to—
the appointment of members of the Board (and, in particular, the procedures to be followed in connection with appointments);
the selection of one of the members to be the chairman;
the term of office of the chairman and members;
their resignation, suspension or removal;
the procedure of the Board (including quorum);
the validation of proceedings in the event of a vacancy among the members or a defect in the appointment of a member.
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.
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.
The Board must make an annual report to the Lord Chancellor about the discharge of its functions.
The Public Guardian must make an annual report to the Lord Chancellor about the discharge of his functions.
The Lord Chancellor must, within one month of receiving the report, lay a copy of it before Parliament.
A Court of Protection Visitor is a person who is appointed by the Lord Chancellor to—
a panel of Special Visitors, or
a panel of General Visitors.
A person is not qualified to be a Special Visitor unless he—
is a registered medical practitioner or appears to the Lord Chancellor to have other suitable qualifications or training, and
appears to the Lord Chancellor to have special knowledge of and experience in cases of impairment of or disturbance in the functioning of the mind or brain.
A General Visitor need not have a medical qualification.
A Court of Protection Visitor— as the Lord Chancellor may determine.
may be appointed for such term and subject to such conditions, and
may be paid such remuneration and allowances,
For the purpose of carrying out his functions under this Act in relation to a person who lacks capacity (“P”), a Court of Protection Visitor may, at all reasonable times, examine and take copies of— so far as the record relates to P.
any health record,
any record of, or held by, a local authority and compiled in connection with a social services function, and
any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) , Chapter 2 of Part 1 of the Health and Social Care Act 2008 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016,
A Court of Protection Visitor may also for that purpose interview P in private.
For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide).
Schedule 3—
gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2000 (Cm. 5881) (in so far as this Act does not otherwise do so), and
makes related provision as to the private international law of England and Wales.
In this Act—
in relation to England has the meaning given in section 1A of the Local Authority Social Services Act 1970 (c. 42),
An interested person may apply to the court for a declaration as to whether 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. The court must make the declaration if— 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.
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 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. An attorney is not entitled to receive notice by virtue of this paragraph if—
The Public Guardian has the function of establishing and maintaining a register of enduring powers for the purposes of this Schedule.
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 application for the exercise of that power. For the purposes of sub-paragraph (1)—
In this Part of this Schedule, “the commencement day” means the day on which section 66(1)(b) (repeal of the 1985 Act) comes into force.
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 treated, in so far as a corresponding power is exercisable under sections 16 to 20, as an application for the exercise of that power. 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.
The records of the former Court of Protection are to be treated, on and after 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). 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 appointment of receivers under section 99 of the Mental Health Act.
Court of Protection Rules may provide that, in a case where paragraph 1 applies, R is to have a duty to render accounts—
while he is receiver;
after he is discharged.
the right to apply to court, and
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. Sub-paragraph (3) applies if it appears to the Public Guardian that the instrument contains a provision which— The Public Guardian— 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— The court must— 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.
This paragraph applies if the donor— The Public Guardian must not register the instrument unless the court, on the application of the donee or, if more than one, any of them—
If in the case of a registered instrument it appears to the Public Guardian that the donee has been replaced under the terms of the instrument the Public Guardian must attach to the instrument a note to that effect.
Where an instrument has been registered under paragraph 13, the court has the following functions with respect to the power and the donor of and the attorney appointed to act under the power. The court may— On application made for the purpose by or on behalf of the donor, the court must confirm the revocation of the power if satisfied that the donor— The court must direct the Public Guardian to cancel the registration of an instrument registered under paragraph 13 in any of the following circumstances— If the court directs the Public Guardian to cancel the registration of an instrument on being satisfied of the matters specified in sub-paragraph (4)(f) or (g) it must by order revoke the power created by the instrument. If the court directs the cancellation of the registration of an instrument under sub-paragraph (4) except paragraph (c) the instrument must be delivered up to the Public Guardian to be cancelled, unless the court otherwise directs.
The 1985 Act and, so far as relevant, the provisions of Part 7 of the Mental 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. 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 nominated under section 46.
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 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. 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— Sub-paragraph (1)— 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. This paragraph is without prejudice to section 16 of the Interpretation Act 1978 (c. 30) (general savings on repeal).
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.
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.
“trust corporation” has the meaning given in section 68(1) of the Trustee Act 1925 (c. 19), and
The instrument must include— Regulations may— The persons who may be named persons do not include a person who is appointed as donee under the instrument. In this Schedule, “named person” means a person named under sub-paragraph (1)(c). A certificate under sub-paragraph (1)(e)— The certificate may not be given by a person appointed as donee under the instrument.
This paragraph applies where a will is executed in accordance with paragraph 3. The Wills Act 1837 (c. 26) has effect in relation to the will as if it were signed by P by his own hand, except that— The will has the same effect for all purposes as if— But sub-paragraph (3) does not have effect in relation to the will— The condition is that, under the law of P’s domicile, any question of his testamentary capacity would fall to be determined in accordance with the law of a place outside England and Wales.
Sub-paragraph (2) applies if the court is satisfied— The court may direct— 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 dividends from the stocks. “Stocks” includes— and “dividends” is to be construed accordingly.
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 and Wales, apply the law of that other country.
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.
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.
“will” includes codicil.
The court may— if satisfied that no useful purpose would be served by giving the notice.
on the application of the donor, dispense with the requirement to notify under paragraph 6(1), or
on the application of the donee or donees concerned, dispense with the requirement to notify under paragraph 6(2),
Sub-paragraph (2) applies if a donee or a named person— 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— Sub-paragraph (4) applies if a donee or a named person— The Public Guardian must not register the instrument unless the court directs him to do so.
A document purporting to be an office copy of an instrument registered under this Schedule is, in any part of the United Kingdom, evidence of— Sub-paragraph (1) is without prejudice to—
If in the case of a registered instrument the court notifies the Public Guardian under paragraph 19(2)(a) that it has severed a provision of the instrument, the Public Guardian must attach to it a note to that effect.
This paragraph applies where a public authority proposes to place an adult in an establishment in a Convention country other than England and Wales. The public authority must consult an appropriate authority in that other country about the proposed placement and, for that purpose, must send it— If the appropriate authority in the other country opposes the proposed placement within a reasonable time, the public authority may not proceed with it.
“Country” includes a territory which has its own system of law. 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.
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.
The following provisions of this Schedule have effect only if the Convention is in force in accordance with Article 57—
paragraph 8,
paragraph 9,
paragraph 19(2) and (5),
Part 5,
paragraph 30.
Any function under the Convention of a Central Authority is exercisable in England and Wales by the Lord Chancellor. A communication may be sent to the Central Authority in relation to England and Wales by sending it to the Lord Chancellor.
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) who are entitled to receive notice by virtue of paragraph 6.
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.
Regulations may make provision— The regulations may—
Subject to sub-paragraphs (2) to (4), persons of the following classes (“relatives”) are entitled to receive notice under paragraph 5— A person is not entitled to receive notice under paragraph 5 if— Except where sub-paragraph (4) applies— Despite the limit of 3 specified in sub-paragraph (3), where— then, subject to sub-paragraph (2), all the persons falling within that class are entitled to receive notice under paragraph 5.
An attorney is not required to give notice under paragraph 5— even though he or, as the case may be, the other attorney is entitled to receive notice by virtue of paragraph 6. 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 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—
the council of a county or county borough in Wales,
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. The validity of the transaction may not be questioned in proceedings, nor may the third party be held liable, merely because— This sub-paragraph applies if— This sub-paragraph applies if— This paragraph does not apply if the third party knew or ought to have known that the applicable law was—
Paragraphs 2 to 4 apply in relation to the execution of a will, by virtue of section 18, on behalf of P.
Any functions which P has as patron of a benefice may be discharged only by a person (“R”) appointed by the court. R must be an individual capable of appointment under section 8(1)(b) of the 1986 Measure (which provides for an 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). 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. “The 1986 Measure” means the Patronage (Benefices) Measure 1986 (No. 3).
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. If it appears to the Public Guardian that— the Public Guardian must not register the instrument except in accordance with the court’s directions. The court may, on the application of the attorney, direct the Public Guardian to register an instrument even though notice has not been given as required by paragraph 4(3) and Part 3 of this Schedule to a person entitled to receive it, if the court is satisfied— Sub-paragraph (5) applies if, before the end of the period of 5 weeks beginning with the date (or the latest date) on which the attorney gave notice under paragraph 5 of an application for registration, the Public Guardian receives a valid notice of objection to the registration from a person entitled to notice of the application. The Public Guardian must not register the instrument except in accordance with the court’s directions. Sub-paragraph (7) applies if, in the case of an application for registration— The Public Guardian— If, having complied with sub-paragraph (7)(b), the Public Guardian is satisfied that one of the grounds of objection set out in sub-paragraph (9) is established— A notice of objection under this paragraph is valid if made on one or more of the following grounds— If any of those grounds is established to the satisfaction of the court it must direct the Public Guardian not to register the instrument, but if not so satisfied it must direct its registration. If the court directs the Public Guardian not to register an instrument because it is satisfied that the ground in sub-paragraph (9)(d) or (e) is established, it must by order revoke the power created by the instrument. If the court directs the Public Guardian not to register an instrument because it is satisfied that any ground in sub-paragraph (9) except that in paragraph (c) is established, the instrument must be delivered up to be cancelled unless the court otherwise directs.
Nothing in this Schedule applies, and no provision made under paragraph 32 is to apply, to any matter to which the Convention, as a result of Article 4, does not apply.
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— 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. 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) act under the power so as to benefit himself or other persons than the donor to the following extent but no further— 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) dispose of the property of the donor by way of gift to the following extent but no further— 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.
“public authority” has the same meaning as in the Human Rights Act 1998,
“social services function”—
If the donor of a lasting power is habitually resident in England and Wales at the time of granting the power, the law applicable to the existence, extent, modification or extinction of the power is— If he is habitually resident in another country at that time, but England and Wales is a connected country, the law applicable in that respect is— A country is connected, in relation to the donor, if it is a country— 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. The law applicable to the manner of the exercise of a lasting power is the law of the country where it is exercised. In this Part of this Schedule, “lasting power” means—
Nothing in this Part of this Schedule requires or enables the application in England and Wales of a provision of the law of another country if its application would be manifestly contrary to public policy.
Sub-paragraphs (2) and (3) apply where an instrument which did not create a valid power of attorney has been registered under paragraph 13 (whether or not the registration has been cancelled at the time of the act or transaction in question). An attorney who acts in pursuance of the power does not incur any liability (either to the donor or to any other person) because of the non-existence of the power unless at the time of acting he knows— Any transaction between the attorney and another person is, in favour of that person, as valid as if the power had then been in existence, unless at the time of the transaction that person has knowledge of any of the matters mentioned in sub-paragraph (2). If the interest of a purchaser depends on whether a transaction between the attorney and another person was valid by virtue of sub-paragraph (3), it is conclusively presumed in favour of the purchaser that the transaction was valid if— For the purposes of section 5 of the Powers of Attorney Act 1971 (c. 27) (protection where power is revoked) in its application to an enduring power the revocation of which by the donor is by virtue of paragraph 15 invalid unless and until confirmed by the court under paragraph 16—
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. The attorney must, as soon as practicable, make an application to the Public Guardian for the registration of the instrument creating the power. Before making an application for registration the attorney must comply with the provisions as to notice set out in Part 3 of this Schedule. An application for registration— The attorney— 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 if he receives a notice under this sub-paragraph. 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— In this paragraph, “prescribed” means prescribed by regulations made for the purposes of this Schedule by the Lord Chancellor.
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. 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 and Wales, the court must, so far as possible, have regard to the law of the other country in that respect (or those respects).
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 13(6)(c) above.
“relevant person” means the person in question;
The court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to— An adult present in England and Wales is to be treated for the purposes of this paragraph as habitually resident there if—
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 relation to him. This sub-paragraph applies in relation to an adult if— 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.
In this Act, references to making decisions, in relation to a donee of a lasting power of attorney or a deputy appointed by the court, include, where appropriate, acting on decisions made.
In this Act, references to the bankruptcy of an individual include a case where a bankruptcy restrictions order under the Insolvency Act 1986 (c. 45) has effect in respect of him.
In this Act references to a debt relief order (under Part 7A of the Insolvency Act 1986) being made in relation to an individual include a case where a debt relief restrictions order under the Insolvency Act 1986 has effect in respect of him.
“Bankruptcy restrictions order” includes an interim bankruptcy restrictions order.
“Debt relief restrictions order” includes an interim debt relief restrictions order.
In this Act, references to deprivation of a person's liberty have the same meaning as in Article 5(1) of the Human Rights Convention.
For the purposes of such references, it does not matter whether a person is deprived of his liberty by a public authority or not.
Any power to make rules, regulations or orders under this Act , other than the power in section 21—
is exercisable by statutory instrument;
includes power to make supplementary, incidental, consequential, transitional or saving provision;
includes power to make different provision for different cases.
Any statutory instrument containing rules, regulations or orders made by the Lord Chancellor or the Secretary of State under this Act, other than— is subject to annulment in pursuance of a resolution of either House of Parliament.
regulations under section 34 (loss of capacity during research project),
regulations under section 41 (adjusting role of independent mental capacity advocacy service),
regulations under paragraph 32(1)(b) of Schedule 3 (private international law relating to the protection of adults),
an order of the kind mentioned in section 67(6) (consequential amendments of primary legislation), or
an order under section 68 (commencement),
Any statutory instrument containing regulations made by the Welsh Ministers under Schedule AA1 is subject to annulment in pursuance of a resolution of the National Assembly for Wales.
A statutory instrument containing an Order in Council under paragraph 31 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.
A statutory instrument containing regulations made by the Secretary of State under section 34 or 41 or by the Lord Chancellor under paragraph 32(1)(b) of Schedule 3 may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
Subsection (2) does not apply to a statutory instrument containing regulations made by the Secretary of State under Schedule A1.
If such a statutory instrument contains regulations under paragraph 42(2)(b), 129, 162 or 164 of Schedule A1 (whether or not it also contains other regulations), the instrument may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
Subject to that, such a statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament.
An order under section 21—
may include supplementary, incidental, consequential, transitional or saving provision;
may make different provision for different cases;
is to be made in the form of a statutory instrument to which the Statutory Instruments Act 1946 applies as if the order were made by a Minister of the Crown; and
is subject to annulment in pursuance of a resolution of either House of Parliament.
The following provisions cease to have effect—
Part 7 of the Mental Health Act,
the Enduring Powers of Attorney Act 1985 (c. 29).
No enduring power of attorney within the meaning of the 1985 Act is to be created after the commencement of subsection (1)(b).
Schedule 4 has effect in place of the 1985 Act in relation to any enduring power of attorney created before the commencement of subsection (1)(b).
Schedule 5 contains transitional provisions and savings in relation to Part 7 of the Mental Health Act and the 1985 Act.
Schedule 6 contains minor and consequential amendments.
Schedule 7 contains repeals.
The Lord Chancellor may by order make supplementary, incidental, consequential, transitional or saving provision for the purposes of, in consequence of, or for giving full effect to a provision of this Act.
An order under subsection (3) may, in particular—
provide for a provision of this Act which comes into force before another provision of this Act has come into force to have effect, until the other provision has come into force, with specified modifications;
amend, repeal or revoke an enactment, other than one contained in an Act or Measure passed in a Session after the one in which this Act is passed.
The amendments that may be made under subsection (4)(b) are in addition to those made by or under any other provision of this Act.
An order under subsection (3) which amends or repeals a provision of an Act or Measure may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
This Act, other than sections 30 to 41, comes into force in accordance with provision made by order by the Lord Chancellor.
Sections 30 to 41 come into force in accordance with provision made by order by—
the Secretary of State, in relation to England, and
the National Assembly for Wales, in relation to Wales.
An order under this section may appoint different days for different provisions and different purposes.
Subject to subsections (5) and (6), this Act extends to England and Wales only.
The following provisions extend to the United Kingdom—
paragraph 16(1) of Schedule 1 (evidence of instruments and of registration of lasting powers of attorney),
paragraph 15(3) of Schedule 4 (evidence of instruments and of registration of enduring powers of attorney).
Subject to any provision made in Schedule 6, the amendments and repeals made by Schedules 6 and 7 have the same extent as the enactments to which they relate.
This Act may be cited as the Mental Capacity Act 2005.
Section 9
the Common Council of the City of London, or
An instrument is not made in accordance with this Schedule unless— Regulations may make different provision according to whether— In this Schedule—
The Public Guardian must cancel the registration of an instrument creating an enduring power of attorney—
on receipt of a disclaimer signed by the attorney;
if satisfied that the power has been revoked by the death or bankruptcy of the donor or attorney or, if the attorney is a body corporate, by its winding up or dissolution;
on receipt of notification from the court that the court has revoked the power;
on confirmation from the court that the donor has revoked the power.
In paragraph 2(7), the reference to the bankruptcy of the attorney is to be read as a reference to the bankruptcy of the last remaining attorney under the power; and the bankruptcy of any other attorney under the power causes that person to cease to be an attorney under the power. In paragraph 2(8), the reference to the suspension of the power is to be read as a reference to its suspension in so far as it relates to the attorney in respect of whom the interim bankruptcy restrictions order has effect. The restriction upon disclaimer imposed by paragraph 4(6) applies only to those attorneys who have reason to believe that the donor is or is becoming mentally incapable.
In Schedule 1 to the Compulsory Purchase Act 1965 (c. 56) (persons without power to sell their interests), for paragraph 1(2)(b) substitute—.
For section 21(4) of the Family Law Reform Act 1969 (c. 46) (consent required for taking of bodily sample from person lacking capacity), substitute—.
Omit section 118 of the Local Government Act 1972 (c. 70) (payment of pension etc. where recipient lacks capacity). Sub-paragraph (3) applies where, before the commencement of this paragraph, a local authority has, in respect of a person referred to in that section as “the patient”, made payments under that section— The local authority may, in respect of the patient, continue to make payments under that section to that institution or person, or in accordance with subsection (1)(a) or (b) of that section, despite the repeal made by sub-paragraph (1).
For section 37(1)(c) of the Consumer Credit Act 1974 (c. 39) (termination of consumer credit licence if holder lacks capacity) substitute—.
In section 3(2) of the Sale of Goods Act 1979 (c. 54) (capacity to buy and sell) the words “mental incapacity or” cease to have effect in England and Wales.
In Schedule 1 to the Judicial Pensions Act 1981 (c. 20) (pensions of Supreme Court officers, etc.), in paragraph 1, omit the reference to a Master of the Court of Protection except in the case of a person holding that office immediately before the commencement of this paragraph or who had previously retired from that office or died.
The Trustee Act 1925 (c. 19) is amended as follows. In section 36 (appointment of new trustee)— In section 41(1) (power of court to appoint new trustee) for the words from “is incapable” to “exercising” substitute “lacks capacity to exercise”. In section 54 (mental health jurisdiction)— In section 55 (order made on particular allegation to be conclusive evidence of it)— In section 68 (definitions), at the end add—.
In section 18(3) of the Administration of Justice Act 1985 (c. 61) (licensed conveyancer who lacks capacity), for the words from “that person” to the end substitute “he becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to practise as a licensed conveyancer.”.
In section 3 of the Public Trustee and Administration of Funds Act 1986 (c. 57) (functions of the Public Trustee)—
for subsections (1) to (5) substitute—,
in subsection (6), for “the 1906 Act” substitute “the Public Trustee Act 1906”, and
omit subsection (7).
In section 50 of the Child Support Act 1991 (c. 48) (unauthorised disclosure of information)—
in subsection (8)—
immediately after paragraph (a), insert “or”,
omit paragraphs (b) and (d) and the “or” immediately after paragraph (c), and
for “, receiver, custodian or appointee” substitute “or custodian”, and
after that subsection, insert—.
For paragraph 4 of Schedule 2 to the Leasehold Reform, Housing and Urban Development Act 1993 (c. 28) (landlord under a disability), substitute—. That amendment does not affect any proceedings pending at the 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.
The Trusts of Land and Appointment of Trustees Act 1996 (c. 47) is amended as follows. In section 9 (delegation by trustees), in subsection (6), for the words from “an enduring power” to the end substitute “an enduring power of attorney or lasting power of attorney within the meaning of the Mental Capacity Act 2005”. In section 20 (the title to which becomes “Appointment of substitute for trustee who lacks capacity”)—
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 2005) to give consent”.
In section 49 of the National Assistance Act 1948 (c. 29) (expenses of council officers acting for persons who lack capacity)—
for the words from “applies” to “affairs of a patient” substitute “applies for appointment by the Court of Protection as a deputy”, and
for “such functions” substitute “his functions as deputy”.
In section 1 of the Variation of Trusts Act 1958 (c. 53) (jurisdiction of courts to vary trusts)—
in subsection (3), for the words from “shall be determined” to the end substitute “who lacks capacity (within the meaning of the Mental Capacity Act 2005) to give his assent is to be determined by the Court of Protection”, and
in subsection (6), for the words from “the powers” to the end substitute “the powers of the Court of Protection”.
If an instrument differs in an immaterial respect in form or mode of expression from the prescribed form, it is to be treated by the Public Guardian as sufficient in point of form and expression. The court may declare that an instrument which is not in the prescribed form is to be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney.
In paragraph 2(5), the reference to the time when the attorney executes the instrument is to be read as a reference to the time when the second or last attorney executes the instrument. In paragraph 2(6) to (8), the reference to the attorney is to be read as a reference to any attorney under the power. Paragraph 13 has effect as if the ground of objection to the registration of the instrument specified in sub-paragraph (9)(e) applied to any attorney under the power. In paragraph 16(2), references to the attorney are to be read as including references to any attorney under the power. In paragraph 16(4), references to the attorney are to be read as including references to any attorney under the power. In paragraph 17, references to the attorney are to be read as including references to any attorney under the power.
An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney— The application may be made— The application must be accompanied by— 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—
Subject to paragraphs 11 to 14, the Public Guardian must register the instrument as a lasting power of attorney at the end of the prescribed period.
Sub-paragraph (2) applies if it appears to the Public Guardian that— The Public Guardian must not register the instrument unless the court directs him to do so.
Where an instrument is registered under this Schedule, the Public Guardian must give notice of the fact in the prescribed form to—
the donor, and
the donee or, if more than one, each of them.
A donor about to make an application under paragraph 4(2)(a) must notify any named persons that he is about to do so. The donee (or donees) about to make an application under paragraph 4(2)(b) or (c) must notify any named persons that he is (or they are) about to do so.
“Convention” means the Convention referred to in section 63. “Convention country” means a country in which the Convention is in force. A reference to an Article or Chapter is to an Article or Chapter of the Convention. An expression which appears in this Schedule and in the Convention is to be construed in accordance with the Convention.
This paragraph applies where— 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.
This paragraph applies if a public authority is told that an adult— is, or has become resident, in a Convention country other than England and Wales. The public authority must tell an appropriate authority in that other country about—
“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— 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.
In section 26 of the Industrial and Provident Societies Act 1965 (c. 12) (payments for mentally incapable people), for subsection (2) substitute—.
In section 72 of the Medicines Act 1968 (c. 67) (pharmacist lacking capacity)—
in subsection (1)(c), for the words from “a receiver” to “1959” substitute “he becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to carry on the business”,
after subsection (1) insert—,
in subsection (3)(d)—
for “receiver” substitute “deputy”, and
after “guardian” insert “or from the date of registration of the instrument appointing the donee”, and
in subsection (4)(c), for “receiver” substitute “donee, deputy”.
In Part 1A of Schedule 2 to the Courts Act 1971 (c. 23) (office-holders eligible for appointment as circuit judges), omit the reference to a Master of the Court of Protection.
In section 68 of the Improvement of Land Act 1864 (c. 114) (apportionment of rentcharges)—
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
for “or patient within the meaning of Part VII of the Mental Health Act 1983” substitute “person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to receive the notice”.
In Schedule 1 to the Juries Act 1974 (c. 23) (disqualification for jury service), for paragraph 3 substitute—.
In section 31 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57) (the title to which becomes “Indemnities for local authority officers appointed as deputies or administrators”), for the words from “as a receiver” to “1959” substitute “as a deputy for a person by the Court of Protection”.
In section 57(2)(c) of the Public Passenger Vehicles Act 1981 (c. 14) (termination of public service vehicle licence if holder lacks capacity) for the words from “becomes a patient” to “or” substitute “becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to use a vehicle under the licence, or”.
The Mental Health Act is amended as follows. In section 134(3) (cases where correspondence of detained patients may not be withheld) for paragraph (b) substitute—. In section 139 (protection for acts done in pursuance of 1983 Act), in subsection (1), omit from “or in, or in pursuance” to “Part VII of this Act,”. Section 142 (payment of pension etc. where recipient lacks capacity) ceases to have effect in England and Wales. Sub-paragraph (6) applies where, before the commencement of sub-paragraph (4), an authority has, in respect of a person referred to in that section as “the patient”, made payments under that section— The authority may, in respect of the patient, continue to make payments under that section to that institution or person, or in accordance with subsection (2)(a) or (b) of that section, despite the amendment made by sub-paragraph (4). In section 145(1) (interpretation), in the definition of “patient”, omit “(except in Part VII of this Act)”. In section 146 (provisions having effect in Scotland), omit from “104(4)” to “section),”. In section 147 (provisions having effect in Northern Ireland), omit from “104(4)” to “section),”.
In section 102D(9) of the Building Societies Act 1986 (c. 53) (references to a person holding an account on trust for another)—
in paragraph (a), for “Part VII of the Mental Health Act 1983” substitute “the Mental Capacity Act 2005”, and
for paragraph (b) substitute—.
The Courts and Legal Services Act 1990 (c. 41) is amended as follows. In Schedule 11 (judges etc. barred from legal practice), for the reference to a Master of the Court of Protection substitute a reference to each of the following— In paragraph 5(3) of Schedule 14 (exercise of powers of intervention in registered foreign lawyer’s practice), for paragraph (f) substitute—.
The Judicial Pensions and Retirement Act 1993 (c. 8) is amended as follows. 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 commencement of this sub-paragraph or who had previously retired from that office or died. 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 before the commencement of this sub-paragraph. 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.
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 the Mental Health Act 1983” substitute “the Mental Capacity Act 2005”.
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—.
The Courts Act 2003 (c. 39) is amended as follows. In section 1(1) (the courts in relation to which the Lord Chancellor must discharge his general duty), after paragraph (a) insert—. In section 64(2) (judicial titles which the Lord Chancellor may by order alter)—
The Administration of Estates Act 1925 (c. 23) is amended as follows. In section 41(1) (powers of personal representatives to appropriate), in the proviso— Omit section 55(1)(viii) (definitions of “person of unsound mind” and “defective”).
Where the surviving spouse or civil partner lacks capacity (within the meaning of the Mental Capacity Act 2005) 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.
As soon as is practicable after receiving an application by the donor under paragraph 4(2)(a), the Public Guardian must notify the donee (or donees) that the application has been received.
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—
would be likely to endanger the adult or his property, or
would amount to a serious threat to the liberty or life of a member of the adult’s family.
As soon as is practicable after receiving an application by a donee (or donees) under paragraph 4(2)(b), the Public Guardian must notify the donor that the application has been received. As soon as is practicable after receiving an application by a donee under paragraph 4(2)(c), the Public Guardian must notify— that the application has been received.
A notice under paragraph 6 must be made in the prescribed form. A notice under paragraph 6, 7 or 8 must include such information, if any, as may be prescribed.
The Public Guardian must cancel the registration of an instrument as a lasting power of attorney on being satisfied that the power has been revoked— If the Public Guardian cancels the registration of an instrument he must notify—
The court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if it—
determines under section 22(2)(a) that a requirement for creating the power was not met,
determines under section 22(2)(b) that the power has been revoked or has otherwise come to an end, or
revokes the power under section 22(4)(b) (fraud etc.).
Sub-paragraph (2) applies if the court determines under section 23(1) that a lasting power of attorney contains a provision which— The court must—
On the cancellation of the registration of an instrument, the instrument and any office copies of it must be delivered up to the Public Guardian to be cancelled.
“relevant care or treatment” means the care or treatment in question.
If in the case of a registered instrument it appears to the Public Guardian that under section 13 a lasting power of attorney is revoked, or suspended, in relation to the donor’s property and affairs (but not in relation to other matters), the Public Guardian must attach to the instrument a note to that effect.
If provision is made by virtue of section 18 for— the court may also make as respects the property settled or the trust property such consequential vesting or other orders as the case may require. The power under sub-paragraph (1) includes, in the case of the exercise of such a power, any order which could have been made in such a case under Part 4 of the Trustee Act 1925 (c. 19).
Sub-paragraphs (2) and (3) apply if— The person takes the same interest, if and so far as circumstances allow, in the property representing the property disposed of. 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 property. The court may direct that, on a disposal of P’s property— 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. References in sub-paragraphs (1) to (4) to the disposal of property are to— and references to property representing property disposed of are to be construed accordingly and as including the result of successive disposals. 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.
This Part applies for the purposes of this Schedule.
“Adult” means a person who—
as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests, and
has reached 16.
Despite section 7 of the Interpretation Act 1978 (c. 30) (construction of 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.
An instrument which appoints more than one person to be an attorney cannot create an enduring power unless the attorneys are appointed to act— This Schedule, in its application to joint attorneys, applies to them collectively as it applies to a single attorney but subject to the modifications specified in paragraph 21. This Schedule, in its application to joint and several attorneys, applies with the modifications specified in sub-paragraphs (4) to (7) and in paragraph 22. A failure, as respects any one attorney, to comply with the requirements for the creation of enduring powers— If one or more but not both or all the attorneys makes or joins in making an application for registration of the instrument— The Public Guardian is not precluded by paragraph 13(5) or (8) from registering an instrument and the court must not direct him not to do so under paragraph 13(10) if an enduring power subsists as respects some attorney who is not affected by the ground or grounds of the objection in question; and where the Public Guardian registers an instrument in that case, he must make against the registration an entry in the prescribed form. Sub-paragraph (6) does not preclude the court from revoking a power in so far as it confers a power on any other attorney in respect of whom the ground in paragraph 13(9)(d) or (e) is established; and where any ground in paragraph 13(9) affecting any other attorney is established the court must direct the Public Guardian to make against the registration an entry in the prescribed form. In sub-paragraph (4), “the requirements for the creation of enduring powers” means the provisions of—
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. 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.
Sub-paragraph (2) applies if the court has ordered or directed the expenditure of money— The court may order that— is to be a charge on the property either without interest or with interest at a specified rate. An order under sub-paragraph (2) may provide for excluding or restricting the operation of paragraph 8(1) to (3). 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. No charge under sub-paragraph (2) may confer any right of sale or foreclosure during P’s lifetime.
If in the case of a registered instrument it appears to the Public Guardian that an event has occurred— the Public Guardian must attach to the instrument a note to that effect.
which has terminated the appointment of the donee, but
which has not revoked the instrument,
If the Public Guardian attaches a note to an instrument under paragraph 21, 22, 23 or 24 he must give notice of the note to the donee or donees of the power (or, as the case may be, to the other donee or donees of the power).
The will may make any provision (whether by disposing of property or exercising a power or otherwise) which could be made by a will executed by P if he had capacity to make it.
The Fines and Recoveries Act 1833 (c. 74) is amended as follows. 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 2005) to manage his property and affairs, the Court of Protection is to take his place as protector of the settlement while he lacks capacity”. 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.
In section 12(1)(b) of the Administration of Justice Act 1960 (c. 65) (contempt of court to publish information about proceedings in private relating to persons with incapacity) for the words from “under Part VIII” to “that Act” substitute “under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983”.
For section 26(2) of the Leasehold Reform Act 1967 (c. 88) (landlord lacking capacity) substitute—. That amendment does not affect any proceedings pending at the commencement of this paragraph in which a receiver or a person authorised under Part 7 of the Mental Health Act is acting on behalf of the landlord.
Schedule 1 to the Local Authority Social Services Act 1970 (c. 42) (enactments conferring functions assigned to social services committee) is amended as follows. In the entry for section 49 of the National Assistance Act 1948 (expenses of local authority officer appointed for person who lacks capacity) for “receiver” substitute “deputy”. Mental Capacity Act 2005 Section 39 Instructing independent mental capacity advocate before providing accommodation for person lacking capacity. Section 49 Reports in proceedings.
In section 40 of the Matrimonial Causes Act 1973 (c. 18) (payments to person who lacks capacity) (which becomes subsection (1))—
for the words from “is incapable” to “affairs” substitute “(“P”) lacks capacity (within the meaning of the Mental Capacity Act 2005) in relation to the provisions of the order”,
for “that person under Part VIII of that Act” substitute “P under that Act”,
for the words from “such persons” to the end substitute “such person (“D”) as it may direct”, and
at the end insert—.
The Solicitors Act 1974 (c. 47) is amended as follows. For section 12(1)(j) (application for practising certificate by solicitor lacking capacity) substitute—. In section 62(4) (contentious business agreements made by clients) for paragraphs (c) and (d) substitute—. In paragraph 1(1) of Schedule 1 (circumstances in which Law Society may intervene in solicitor’s practice), for paragraph (f) substitute—.
In section 38 of the Limitation Act 1980 (c. 58) (interpretation) substitute—
in subsection (2) for “of unsound mind” substitute “lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings”, and
omit subsections (3) and (4).
In Schedule 2 to the Supreme Court Act 1981 (c. 54) (qualifications for appointment to office in Supreme Court), omit paragraph 11 (Master of the Court of Protection).
The Insolvency Act 1986 (c. 45) is amended as follows. In section 389A (people not authorised to act as nominee or supervisor in voluntary arrangement), in subsection (3)— In section 390 (people not qualified to be insolvency practitioners), in subsection (4)—
The Patronage (Benefices) Measure 1986 (No. 3) is amended as follows. In section 5 (rights of patronage exercisable otherwise than by registered patron), after subsection (3) insert— In section 9 (information to be sent to designated officer when benefice becomes vacant), after subsection (5) insert—
In section 123 of the Social Security Administration Act 1992 (c. 5) (unauthorised disclosure of information)—
in subsection (10), omit—
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 41(1) of the Court of Protection Rules 1984 or”,
in paragraph (d)(ii), “a receiver ad interim appointed under sub-paragraph (b) of the said rule 41(1) or”, and
“receiver,”, and
after that subsection, insert—.
The Law of Property Act 1925 (c. 20) is amended as follows. In section 22 (conveyances on behalf of persons who lack capacity)— In section 205(1) (interpretation), omit paragraph (xiii).
The Goods Vehicles (Licensing of Operators) Act 1995 (c. 23) is amended as follows. 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 a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to use a vehicle under the licence”. In section 48 (licence not to be transferable, etc.)—
In section 4(5) of the Human Rights Act 1998 (c. 42) (courts which may make declarations of incompatibility), after paragraph (e) insert—
The Licensing Act 2003 (c. 17) is amended as follows. In section 27(1) (lapse of premises licence), for paragraph (b) substitute—. In section 47 (interim authority notice in relation to premises licence)—
In section 1 of the U.S.A. Veterans' Pensions (Administration) Act 1949 (c. 45) (administration of pensions)—
in subsection (4), omit the words from “or for whom” to “1983”, and
after subsection (4), insert—.
Section 18(4)
“treatment” includes a diagnostic or other procedure,
Sub-paragraph (2) applies if under section 16 the court makes an order or gives directions requiring or authorising a person (“the authorised person”) to execute a will on behalf of P. Any will executed in pursuance of the order or direction—
If a settlement has been made by virtue of section 18, the court may by order vary or revoke the settlement if— Any such order may give such consequential directions as the court thinks fit.
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. Any Article on which the jurisdiction is based applies in relation to the 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). Article 12 also applies, so far as its provisions allow, in relation to the matter in so far as it involves the other country.
Where an individual has created a power of attorney which is an enduring power within the meaning of this Schedule— and, accordingly, section 1 of this Act does not apply. 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— 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 accordance with sub-paragraph (2)(a) or (b).
A reference in this Schedule to the exercise of jurisdiction under this Schedule is to the exercise of functions under this Act as a result of this Part of this Schedule.
Section 63
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. A protective measure taken in relation to an adult under the law of a 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). But the court may disapply this paragraph in relation to a measure if it thinks that— It may also disapply this paragraph in relation to a measure if it thinks that— 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 connection with that matter.
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.
A certificate given under Article 38 by an authority in a Convention country other than England and Wales is, unless the contrary is shown, proof of the matters contained in it.
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 Schedule by the Lord Chancellor.
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— In this paragraph, “prescribed” means prescribed by such of the following regulations as applied when the instrument was executed— 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. If an instrument differs in an immaterial respect in form or mode of expression from the prescribed form it is to be treated as sufficient in point of form and expression. A power of attorney cannot be an enduring power unless, when he executes the instrument creating it, the attorney is— A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power. An enduring power is revoked by the bankruptcy of the donor or attorney. 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. An enduring power is revoked if the court— 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.
A notice to relatives under this Part of this Schedule must—
be in the prescribed form,
state that the attorney proposes to make an application to the Public Guardian for the registration of the instrument creating the enduring power in question,
inform the person to whom it is given of his right to object to the registration under paragraph 13(4), and
specify, as the grounds on which an objection to registration may be made, the grounds set out in paragraph 13(9).
This paragraph applies where, immediately before the commencement day, there is a receiver (“R”) for a person (“P”) appointed under section 99 of the Mental Health Act. On and after that day— On any application to it by R, the court may end R’s appointment as P’s deputy. 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. If, on the application, the court is satisfied that P is capable of managing his property and affairs in relation to the relevant matter— 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. R’s appointment as P’s deputy ceases to have effect if P dies. “Relevant matter” means a matter in relation to which, immediately before the commencement day, R was authorised to act as P’s receiver. 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 Schedule 5 to that Act was deemed to be a receiver appointed under that section.
In this Part of this Schedule—
“the commencement day” means the day on which section 66(1)(a) (repeal of Part 7 of the Mental Health Act) comes into force,
“the former Court of Protection” means the office abolished by section 45, and
“the new Court of Protection” means the court established by that section.
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. If in the case of an appeal brought by virtue of section 105(1) (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 it is to be heard by a puisne judge of the High Court nominated under section 46.
This Act does not affect the operation in relation to a charge created before the commencement day of—
so much of section 101(6) of the Mental Health Act as precludes a charge created under section 101(5) from conferring a right of sale or foreclosure during the lifetime of the patient, or
section 106(6) of the Mental Health Act (charge created by virtue of section 106(5) not to cause interest to fail etc.).
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. No permission is required for an application to the court under this paragraph.
Court of Protection Rules may make provision about an application under paragraph 20 or 22.
A notice to the donor under this Part of this Schedule—
must be in the prescribed form,
must contain the statement mentioned in paragraph 9(b), and
must inform the donor that, while the instrument remains registered, any revocation of the power by him will be ineffective unless and until the revocation is confirmed by the court.
For the purposes of paragraphs 19 and 20, any finding of fact relied on when the measure was taken is conclusive.
Section 66(3)
“relevant hospital or care home” means the hospital or care home in question;
The effect of the registration of an instrument under paragraph 13 is that— Sub-paragraph (1) applies for so long as the instrument is registered under paragraph 13 whether or not the donor is for the time being mentally incapable. A document purporting to be an office copy of an instrument registered under this Schedule is, in any part of the United Kingdom, evidence of— Sub-paragraph (3) is without prejudice to section 3 of the Powers of Attorney Act 1971 (c. 27) (proof by certified copies) and to any other method of proof authorised by law.
If— sub-paragraphs (2) and (3) apply, whether or not the instrument has been registered. An attorney who acts in pursuance of the power does not, by reason of the revocation, incur any liability (either to the donor or to any other person) unless at the time of acting he knows— Any transaction between the attorney and another person is, in favour of that person, as valid as if the power had then been in existence, unless at the time of the transaction that person knows— Paragraph 18(4) applies for the purpose of determining whether a transaction was valid by virtue of sub-paragraph (3) as it applies for the purpose or determining whether a transaction was valid by virtue of paragraph 18(3).
Any order or determination made, or other thing done, under the 1985 Act which has effect immediately before the commencement day continues to have effect despite the repeal of that Act. 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— Any instrument registered under the 1985 Act is to be treated as having been registered by the Public Guardian under Schedule 4. This paragraph is without prejudice to section 16 of the Interpretation Act 1978 (c. 30) (general savings on repeal).
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— 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-paragraph (3), it applies immediately before the commencement day. 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). 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— 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).
In this Schedule— Any question arising under or for the purposes of this Schedule as to what the donor of the power might at any time be expected to do is to be determined by assuming that he had full mental capacity at the time but otherwise by reference to the circumstances existing at that time.
Section 66(4)
Section 67(1)
Section 67(2) 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). Administration of Estates Act 1925 (c. 23) Section 55(1)(viii) U.S.A. Veterans' Pensions (Administration) Act 1949 (c. 45) In section 1(4), the words from “or for whom” to “1983”. Mental Health Act 1959 (c. 72) In Schedule 7, in Part 1, the entries relating to— section 33 of the Fines and Recoveries Act 1833, section 68 of the Improvement of Land Act 1864, 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 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 (c. 70) Section 118. 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,”. 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. 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 Act 1985 (c. 29) The whole Act. 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”. In section 390(4)— the “or” immediately after paragraph (b), and in paragraph (c), the words “Part VII of the Mental Health Act 1983 or”. Public Trustee and Administration of Funds Act 1986 (c. 57) Section 2. Section 3(7). Child Support Act 1991 (c. 48) In section 50(8)— paragraphs (b) and (d), and the “or” immediately after paragraph (c). Social Security Administration Act 1992 (c. 5) In section 123(10)— 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 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 “receiver,”. Trustee Delegation Act 1999 (c. 15) Section 4. Section 6. In section 7(3), the words “in accordance with section 4 above”. 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”.
This Part applies if the following conditions are met. The first condition is that a person (“P”) is detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty. The second condition is that a standard or urgent authorisation is in force. The third condition is that the standard or urgent authorisation relates—
The managing authority of the hospital or care home may deprive P of his liberty by detaining him as mentioned in paragraph 1(2).
This paragraph applies to any act which a person (“D”) does for the purpose of detaining P as mentioned in paragraph 1(2). D does not incur any liability in relation to the act that he would not have incurred if P—
Paragraphs 2 and 3 do not exclude a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing any thing. Paragraphs 2 and 3 do not authorise a person to do anything otherwise than for the purpose of the standard or urgent authorisation that is in force. In a case where a standard authorisation is in force, paragraphs 2 and 3 do not authorise a person to do anything which does not comply with the conditions (if any) included in the authorisation.
This Part applies for the purposes of this Schedule.
“Detained resident” means a person detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty.
In relation to a person who is, or is to be, a detained resident—
“Standard authorisation” means an authorisation given under Part 4.
“Urgent authorisation” means an authorisation given under Part 5.
“Authorisation under this Schedule” means either of the following—
a standard authorisation;
an urgent authorisation.
The purpose of a standard authorisation is the purpose which is stated in the authorisation in accordance with paragraph 55(1)(d). The purpose of an urgent authorisation is the purpose which is stated in the authorisation in accordance with paragraph 80(d).
These are the qualifying requirements referred to in this Schedule— Any question of whether a person who is, or is to be, a detained resident meets the qualifying requirements is to be determined in accordance with this Part. In a case where— those circumstances are to be taken into account as they are expected to be at the later time.
The relevant person meets the age requirement if he has reached 18.
The relevant person meets the mental health requirement if he is suffering from mental disorder (within the meaning of the Mental Health Act, but disregarding any exclusion for persons with learning disability). An exclusion for persons with learning disability is any provision of the Mental Health Act which provides for a person with learning disability not to be regarded as suffering from mental disorder for one or more purposes of that Act.
The relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment.
The relevant person meets the best interests requirement if all of the following conditions are met. The first condition is that the relevant person is, or is to be, a detained resident. The second condition is that it is in the best interests of the relevant person for him to be a detained resident. The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident. The fourth condition is that it is a proportionate response to— for him to be a detained resident.
The relevant person meets the eligibility requirement unless he is ineligible to be deprived of liberty by this Act. Schedule 1A applies for the purpose of determining whether or not P is ineligible to be deprived of liberty by this Act.
The relevant person meets the no refusals requirement unless there is a refusal within the meaning of paragraph 19 or 20.
There is a refusal if these conditions are met— Expressions used in this paragraph and any of sections 24, 25 or 26 have the same meaning in this paragraph as in that section.
There is a refusal if it would be in conflict with a valid decision of a donee or deputy for the relevant person to be accommodated in the relevant hospital or care home for the purpose of receiving some or all of the relevant care or treatment— A donee is a donee of a lasting power of attorney granted by the relevant person. A decision of a donee or deputy is valid if it is made—
Only the supervisory body may give a standard authorisation.
The supervisory body may not give a standard authorisation unless—
the managing authority of the relevant hospital or care home have requested it, or
paragraph 71 applies (right of third party to require consideration of whether authorisation needed).
The managing authority may not make a request for a standard authorisation unless—
they are required to do so by paragraph 24 (as read with paragraphs 27 to 29),
they are required to do so by paragraph 25 (as read with paragraph 28), or
they are permitted to do so by paragraph 30.
The managing authority must request a standard authorisation in any of the following cases. The first case is where it appears to the managing authority that the relevant person— The second case is where it appears to the managing authority that the relevant person— The third case is where it appears to the managing authority that the relevant person— This paragraph is subject to paragraphs 27 to 29.
The relevant managing authority must request a standard authorisation if it appears to them that these conditions are met. The first condition is that a standard authorisation— The second condition is that there is, or is to be, a change in the place of detention. This paragraph is subject to paragraph 28.
This paragraph applies for the purposes of paragraph 25. There is a change in the place of detention if the relevant person— The stated hospital or care home is the hospital or care home to which the standard authorisation relates. The relevant managing authority are the managing authority of the new hospital or care home.
This paragraph applies if, by virtue of section 4A(3), a decision of the court authorises the relevant person to be a detained resident. Paragraph 24 does not require a request for a standard authorisation to be made in relation to that detention unless these conditions are met. The first condition is that the standard authorisation would be in force at a time immediately after the expiry of the other authority. The second condition is that the standard authorisation would not be in force at any time on or before the expiry of the other authority. The third condition is that it would, in the managing authority's view, be unreasonable to delay making the request until a time nearer the expiry of the other authority. In this paragraph—
This paragraph applies if— Paragraph 24 or 25 does not require that managing authority to make a new request for a standard authorisation unless it appears to the managing authority that—
This paragraph applies if a standard authorisation— Paragraph 24 does not require a new request for a standard authorisation (“the new authorisation”) to be made unless these conditions are met. The first condition is that the new authorisation would be in force at a time immediately after the expiry of the existing authorisation. The second condition is that the new authorisation would not be in force at any time on or before the expiry of the existing authorisation. The third condition is that it would, in the managing authority's view, be unreasonable to delay making the request until a time nearer the expiry of the existing authorisation. The expiry of the existing authorisation is the time when it is expected to cease to be in force.
This paragraph applies if— The managing authority may request a new standard authorisation which would be in force on or before the expiry of the existing authorisation; but only if it would also be in force immediately after that expiry. The expiry of the existing authorisation is the time when it is expected to cease to be in force. Further provision relating to cases where a request is made under this paragraph can be found in—
A request for a standard authorisation must include the information (if any) required by regulations.
The managing authority of a hospital or care home must keep a written record of— A supervisory body must keep a written record of each request for a standard authorisation that is made to them.
This paragraph applies if the supervisory body are requested to give a standard authorisation. The supervisory body must secure that all of these assessments are carried out in relation to the relevant person— The person who carries out any such assessment is referred to as the assessor. Regulations may be made about the period (or periods) within which assessors must carry out assessments. This paragraph is subject to paragraphs 49 and 133.
An age assessment is an assessment of whether the relevant person meets the age requirement.
A mental health assessment is an assessment of whether the relevant person meets the mental health requirement.
When carrying out a mental health assessment, the assessor must also—
consider how (if at all) the relevant person's mental health is likely to be affected by his being a detained resident, and
notify the best interests assessor of his conclusions.
A mental capacity assessment is an assessment of whether the relevant person meets the mental capacity requirement.
A best interests assessment is an assessment of whether the relevant person meets the best interests requirement.
In carrying out a best interests assessment, the assessor must comply with the duties in sub-paragraphs (2) and (3). The assessor must consult the managing authority of the relevant hospital or care home. The assessor must have regard to all of the following— A relevant needs assessment is an assessment of the relevant person's needs which— A relevant care plan is a care plan which— The managing authority must give the assessor a copy of— The supervisory body must give the assessor a copy of— The duties in sub-paragraphs (2) and (3) do not affect any other duty to consult or to take the views of others into account.
This paragraph applies whatever conclusion the best interests assessment comes to. The assessor must state in the best interests assessment the name and address of every interested person whom he has consulted in carrying out the assessment.
Paragraphs 42 and 43 apply if the best interests assessment comes to the conclusion that the relevant person meets the best interests requirement.
The assessor must state in the assessment the maximum authorisation period. The maximum authorisation period is the shorter of these periods— Regulations under sub-paragraph (2)(b)— Before making regulations under sub-paragraph (2)(b) the Secretary of State must consult all of the following— Before making regulations under sub-paragraph (2)(b) the National Assembly for Wales must consult all of the following—
The assessor may include in the assessment recommendations about conditions to which the standard authorisation is, or is not, to be subject in accordance with paragraph 53.
This paragraph applies if the best interests assessment comes to the conclusion that the relevant person does not meet the best interests requirement. If, on the basis of the information taken into account in carrying out the assessment, it appears to the assessor that there is an unauthorised deprivation of liberty, he must include a statement to that effect in the assessment. There is an unauthorised deprivation of liberty if the managing authority of the relevant hospital or care home are already depriving the relevant person of his liberty without authority of the kind mentioned in section 4A.
The duties with which the best interests assessor must comply are subject to the provision included in appointment regulations under Part 10 (in particular, provision made under paragraph 146).
An eligibility assessment is an assessment of whether the relevant person meets the eligibility requirement.
Regulations may— In this paragraph—
A no refusals assessment is an assessment of whether the relevant person meets the no refusals requirement.
The supervisory body are not required by paragraph 33 to secure that a particular kind of assessment (“the required assessment”) is carried out in relation to the relevant person if the following conditions are met. The first condition is that the supervisory body have a written copy of an assessment of the relevant person (“the existing assessment”) that has already been carried out. The second condition is that the existing assessment complies with all requirements under this Schedule with which the required assessment would have to comply (if it were carried out). The third condition is that the existing assessment was carried out within the previous 12 months; but this condition need not be met if the required assessment is an age assessment. The fourth condition is that the supervisory body are satisfied that there is no reason why the existing assessment may no longer be accurate. If the required assessment is a best interests assessment, in satisfying themselves as mentioned in sub-paragraph (5), the supervisory body must take into account any information given, or submissions made, by— It does not matter whether the existing assessment was carried out in connection with a request for a standard authorisation or for some other purpose. If, because of this paragraph, the supervisory body are not required by paragraph 33 to secure that the required assessment is carried out, the existing assessment is to be treated for the purposes of this Schedule—
The supervisory body must give a standard authorisation if— The supervisory body must not give a standard authorisation except in accordance with sub-paragraph (1). All assessments are positive if each assessment carried out under paragraph 33 has come to the conclusion that the relevant person meets the qualifying requirement to which the assessment relates.
If the supervisory body are required to give a standard authorisation, they must decide the period during which the authorisation is to be in force. That period must not exceed the maximum authorisation period stated in the best interests assessment.
A standard authorisation may provide for the authorisation to come into force at a time after it is given.
A standard authorisation may be given subject to conditions. Before deciding whether to give the authorisation subject to conditions, the supervisory body must have regard to any recommendations in the best interests assessment about such conditions. The managing authority of the relevant hospital or care home must ensure that any conditions are complied with.
A standard authorisation must be in writing.
A standard authorisation must state the following things— The statement of the reason why the eligibility requirement is met must be framed by reference to the cases in the table in paragraph 2 of Schedule 1A.
If the name of the relevant hospital or care home changes, the standard authorisation is to be read as if it stated the current name of the hospital or care home. But sub-paragraph (1) is subject to any provision relating to the change of name which is made in any enactment or in any instrument made under an enactment.
This paragraph applies if— The supervisory body must give a copy of the authorisation to each of the following— The supervisory body must comply with this paragraph as soon as practicable after they give the standard authorisation.
This paragraph applies if— The supervisory body must give notice, stating that they are prohibited from giving the authorisation, to each of the following— The supervisory body must comply with this paragraph as soon as practicable after it becomes apparent to them that they are prohibited from giving the authorisation.
This paragraph applies if a standard authorisation is given. The managing authority of the relevant hospital or care home must take such steps as are practicable to ensure that the relevant person understands all of the following— Those steps must be taken as soon as is practicable after the authorisation is given. Those steps must include the giving of appropriate information both orally and in writing. Any written information given to the relevant person must also be given by the managing authority to the relevant person's representative. They must give the information to the representative as soon as is practicable after it is given to the relevant person. Sub-paragraph (8) applies if the managing authority is notified that a section 39D IMCA has been appointed. As soon as is practicable after being notified, the managing authority must give the section 39D IMCA a copy of the written information given in accordance with sub-paragraph (4).
A supervisory body must keep a written record of all of the following information—
the standard authorisations that they have given;
the requests for standard authorisations in response to which they have not given an authorisation;
in relation to each standard authorisation given: the matters stated in the authorisation in accordance with paragraph 55.
A standard authorisation may not be varied except in accordance with Part 7 or 8. This paragraph does not affect the powers of the Court of Protection or of any other court.
This paragraph applies where the managing authority request a new standard authorisation under either of the following— If the supervisory body are required by paragraph 50(1) to give the new authorisation, the existing authorisation terminates at the time when the new authorisation comes into force. If the supervisory body are prohibited by paragraph 50(2) from giving the new authorisation, there is no effect on the existing authorisation's continuation in force.
A standard authorisation comes into force when it is given. But if the authorisation provides for it to come into force at a later time, it comes into force at that time.
A standard authorisation ceases to be in force at the end of the period stated in the authorisation in accordance with paragraph 55(1)(c). But if the authorisation terminates before then in accordance with paragraph 62(2) or any other provision of this Schedule, it ceases to be in force when the termination takes effect. This paragraph does not affect the powers of the Court of Protection or of any other court.
This paragraph applies if a standard authorisation ceases to be in force. The supervisory body must give notice that the authorisation has ceased to be in force. The supervisory body must give that notice to all of the following— The supervisory body must give that notice as soon as practicable after the authorisation ceases to be in force.
A request for a standard authorisation is to be regarded for the purposes of this Schedule as disposed of if the supervisory body have given—
a copy of the authorisation in accordance with paragraph 57, or
notice in accordance with paragraph 58.