Legalize / United Kingdom / Northern Ireland / Act of the Northern Ireland Assembly

Mental Capacity Act (Northern Ireland) 2016

Type Act of the Northern Ireland Assembly

Publication 2016-05-09

Last updated 2022-04-01

State In force

Jurisdiction Northern Ireland

Department Statute Law Database

Source legislation.gov.uk

articles 3

Reform history JSON API

(a) is a use of force or a threat to use force, and

(b) is done with the intention of securing the doing of another act in connection with the care, treatment or personal welfare of a person which that person resists,

the act mentioned in paragraph (a) is to be taken to be part of the same intervention as the act mentioned in paragraph (b).

(3) Nothing in this section limits the acts that are to be regarded as part of a particular intervention.

Meaning of “emergency”

Meaning of “emergency” in relation to safeguard provisions

65

(1) This section applies in relation to sections 13, 15, 16, 17, 19, 20, 24, 26, 28 and 35 (provisions which contain additional safeguards, and which require a determination of whether the situation is an “emergency”).

(2) For the purposes of any one of those sections, the situation is an “emergency” if at the relevant time—

(a) D knows that the safeguard in that section is not met, but reasonably believes that to delay until that safeguard is met would create an unacceptable risk of harm to P; or

(b) D does not know whether that safeguard is met, but reasonably believes that to delay even until it is established whether it is met would create an unacceptable risk of harm to P.

(3) But the situation is not an “emergency” by virtue of falling within subsection (2) if the fact that the safeguard in question is not met by the relevant time is to any extent due to an unreasonable failure by D to take a step that it would have been practicable to take for the purposes of ensuring that the safeguard is met by the relevant time.

(4) Subsections (2) and (3) are to be read in accordance with section 66.

(5) For the purposes of any section mentioned in subsection (1), the situation is also an “emergency” if, at the time when the act mentioned in that section is done, D—

(a) does not know of the effect of that section;

(b) is not a person with expertise such that he or she could reasonably be expected to know of its effect; and

Section 65: definitions etc

66

(1) For the purposes of section 65(2) and (3) and this section—

(a) the safeguard in section 13 is met when a formal capacity assessment has been carried out and a statement of incapacity made;

(b) the safeguard in section 15 is met when a nominated person is in place for P;

(d) the safeguard in section 19, 20, 24, 26 or 28 is met where the provision of treatment, detention or requirement mentioned in that section is authorised;

(e) the safeguard in section 35 is met when—

(i) an independent mental capacity advocate is instructed under section 91 to represent and provide support to P in the determination of what would be in P's best interests; or

(ii) P has made (and not revoked) a declaration under section 90 or 93 in relation to the matter.

(2) In section 65(2) and (3) and this section “the relevant time” means—

(a) in relation to section 15 or 35, the time when D determines that the act mentioned in that section would be in P's best interests;

(b) in relation to any other section mentioned in section 65(1), the time when the act mentioned in that section is done.

(3) For the purposes of section 65(2), the risk of harm to P created by delaying until a particular safeguard is met, or until it is established whether it is met, is an “unacceptable” risk if—

(a) the seriousness of the harm that could be caused to P by such delay, and

(b) the likelihood of the harm,

are such as to outweigh the risk of harm to P of not complying with the safeguard.

(4) In determining for the purposes of section 65(2) and this section when a safeguard would be met, or when it would be established whether a safeguard is met, it must be assumed that any necessary steps would be taken as soon as practicable.

(5) For the purposes of section 65(3), a failure by D at any time (“the time in question”) to take a practicable step for the purposes of ensuring that the safeguard is met by the relevant time is unreasonable unless, at the time in question—

(a) he or she reasonably believes that (ignoring any provision of this Act relating to emergency situations) the matter is not one to which the safeguard will apply; or

(b) he or she reasonably believes that that step does not have to be taken immediately in order for the safeguard to be met in time, and not taking that step immediately is reasonable in the circumstances.

(6) Expressions used in a paragraph of subsection (1) and in the section mentioned in that paragraph have the same meaning in that paragraph as in that section.

Failure by persons other than D to take steps to ensure safeguard met

67

(1) This section has effect in relation to section 65(2) in a case where D is an employee of a person (“E”).

(2) For the purposes of determining whether E is liable in relation to an act done in a situation falling within section 65(2), any reference in section 65(3) or 66(5) to “D” includes any other employee of E.

(3) Any person for whose acts another person may be vicariously liable is to be treated for the purposes of this section as an employee of that other person.

Other definitions for purposes of Part 2

Interpretation of Part 2: general

68

(1) For the purposes of this Part—

“community residence requirement” has the meaning given by section 31;

“emergency”—in sections 54 to 56, has the meaning given by section 56;otherwise, has the meaning given by section 65;

“reasonable objection”: an act is done “despite” a reasonable objection from a person's nominated person if the nominated person—has reasonably objected to the proposal to do the act; andhas not, by the time the act is done, withdrawn that objection (by any means);

“requirement”: a requirement for a person (“P”) to do a thing is imposed on P by a person if that person tells P (by any means and in any words) that if P does not do that thing, further action will or may be taken in respect of P;

“resisted by”: an act is resisted by a person if the doing of the act is secured by the use of force or a threat to use force;

“serious intervention” is to be read in accordance with section 63;

“subject to an additional measure” has the meaning given by section 23;

“treatment with serious consequences” has the meaning given by section 21;

treatment that “might be” treatment with serious consequences: references to such treatment are to treatment where the risk of the treatment turning out to be treatment with serious consequences is more than negligible.

(2) See also sections 304 to 306 (definitions for purposes of Act).

PART 3 — NOMINATED PERSON

Nominated person

69

(1) A person is the nominated person, within the meaning of this Act, of another person (“P”) if—

(a) the person is currently appointed as P's nominated person under section 70 or 81; or

(b) where no-one is so appointed, the person is the default nominated person for P under sections 73 to 76.

(2) For the purposes of this Part a person is “currently” appointed under section 70 or 81 if—

(a) the person has been appointed under that section; and

(b) the appointment has not been revoked under any provision of this Part and the person has not resigned under any such provision.

Appointment by person of his or her nominated person

Appointment of nominated person

70

(1) A person who is 16 or over (“the appointer”) may, at any time when he or she has capacity to do so, appoint one person who is 16 or over to be the appointer's nominated person.

(2) An appointment under this section is valid only if—

(a) the appointment is in writing and the conditions of section 79 (formalities) are met; and

(b) the person appointed consents in writing to being the appointer's nominated person.

(3) That consent may be given—

(a) before section 79 is complied with (in which case the appointment takes effect when that section is complied with); or

(b) at the same time as, or after, that section is complied with (in which case the appointment takes effect when the consent is given).

(4) An appointment under this section remains effective even where, at a time after the appointment, the appointer no longer has capacity to make decisions about his or her nominated person.

Revocation of appointment

71

(1) An appointment may, where the appointer has capacity to revoke it, be revoked by the appointer.

(2) A revocation under subsection (1) is valid only if the revocation is in writing and the conditions of section 79 (formalities) are met.

(3) An appointment made by a person revokes any previous appointment made by that person.

(4) In this section “appointment” means an appointment under section 70.

Resignation

72

A person appointed under section70 may resign as the appointer's nominated person by giving notice in writing to that effect to the appointer.

Default nominated person

73

(1) Where—

(a) a person (“P”) is 16 or over, and

(b) there is no person currently appointed as P's nominated person under section 70 or 81,

this section and sections 74 to 76 apply to determine who (if anyone) is the default nominated person for P.

(2) The default nominated person for P is—

(a) where there is only one person who is within the list in subsection (3), that person;

(b) where there are two or more persons who are within that list, the person highest up the list;

but this is subject to sections 74 and 75.

(3) The list is as follows—

(a) P's carer (as defined by section 76);

(b) P's spouse or civil partner (except one within subsection (4) (separation etc));

(d) P's child;

(e) P's parent;

(f) P's brother or sister;

(g) P's grandparent;

(h) P's grandchild;

(i) P's aunt or uncle;

(j) P's niece or nephew;

(k) a person within subsection (6) (person living with P etc).

(4) A person is within this subsection if—

(a) the person is permanently separated from P (either by agreement or under an order of a court); or

(b) the person has deserted or been deserted by P for a period which has not ended.

(5) A person is within this subsection if—

(a) the person is living with P as if he or she were P's spouse or civil partner, and has been so living for a period of at least 6 months; or

(b) if P is living in a relevant place, at the relevant time the person had been living with P as if he or she were P's spouse or civil partner for a period of at least 6 months.

(6) A person is within this subsection if—

(a) the person is someone with whom P lives and has been living for a period of at least 5 years; or

(b) if P is living in a relevant place, at the relevant time the person was someone with whom P had been living for a period of at least 5 years.

(7) In this section—

“relevant place” means—a hospital;a care home; ora place of a prescribed description;

“the relevant time” means the time when P started living at the relevant place.

Section 73: the list

74

(1) This section contains provisions about the list in section 73(3) (“the list”).

(2) A person within the list (“A”) is “higher” up the list than another person within the list (“B”) if A is within a paragraph of the list that comes before the paragraph which B is within.

(3) Where—

(a) two or more persons are within the same paragraph of the list, and

(b) there is no person higher up the list,

the default nominated person is the older (or oldest) of those persons (but this is subject to subsections (5) and (6)).

(4) In determining who is the default nominated person for P—

(a) a stepchild of a person is to be treated as the child of that person; and

(b) a relationship of the half-blood is to be treated as a relationship of the whole blood;

but this is subject to subsections (5) and (6).

(5) Subsection (6) applies where—

(a) P has two or more relatives within the same paragraph of the list (“the relevant paragraph”);

(b) there is no person higher up the list; and

(6) In determining who is the default nominated person for P—

(a) any relatives of the whole blood are to be preferred over the relatives who are within the relevant paragraph because of subsection (4);

(b) any relatives of the half-blood are to be preferred over any relatives who are within the relevant paragraph because of subsection (4)(a).

(7) This section is subject to section 75.

Section 73: persons to be disregarded

75

(1) This section supplements section 73.

(2) In determining who is the default nominated person for P, the following are to be disregarded—

(a) any person under 16;

(b) where P is ordinarily resident in the United Kingdom, the Channel Islands, the Isle of Man or Ireland, any person who is not so resident;

(c) any person who under section 77 (declaration by P) is to be disregarded in determining who is the default nominated person for P;

(d) any person who has in accordance with section 78 declined to be the nominated person for P (and has not withdrawn that notice);

(e) any person who under an order of the Tribunal under section 82 is to be disregarded in determining who is the default nominated person for P.

Section 73: meaning of “carer”

76

(1) In section 73, the reference to a “carer” of P is to a person who is 16 or over and—

(a) provides a substantial amount of care for and support to P—

(i) on a regular basis; and

(ii) on a domestic basis; or

(b) where P is living in a relevant place, provided a substantial amount of care for and support to P on a regular basis and on a domestic basis, before the relevant time.

(2) For the purposes of subsection (1) care and support is provided on a domestic basis unless it is provided under a contract of employment, under any other contract with any person, or as a volunteer for any organisation.

(3) Where there are two or more persons within subsection (1), but one of them provides (or provided, before the relevant time) most of the care for and support to P, that person is P's carer for the purposes of section 73.

(4) Where there are two or more persons within subsection (1) and subsection (3) does not apply, each of those persons is P's “carer” (and accordingly section 74(3) applies).

(5) In this section “relevant place” and “the relevant time” have the same meaning as in section 73.

Declarations etc

Declaration that particular person not to be nominated person

77

(1) A person who is 16 or over and has capacity to do so (“the declarer”) may make a declaration—

(a) stating that a person specified in the declaration is not to be the declarer's nominated person;

(b) specifying two or more persons and stating that neither (or none) of them is to be the declarer's nominated person;

(2) Where a declaration has been made under subsection (1) and has not been revoked, any person who is specified, or of a description specified, in the declaration—

(a) is to be disregarded in determining who is the default nominated person for the declarer under sections 73 to 76; and

(b) may not be appointed by the Tribunal under section 81 as the declarer's nominated person (subject to subsection (3)).

(3) Subsection (2)(b) does not apply where there has been a change of circumstances since the declaration was made that, in the Tribunal's opinion, justifies appointing the person concerned.

(4) A declaration under this section remains effective even where, at a time after making the declaration, the declarer no longer has capacity to make decisions about the declaration.

(5) A declaration under this section may be revoked by the declarer at any time when the declarer has capacity to do so.

(6) A declaration, or revocation of a declaration, under this section is valid only if it is in writing and the conditions of section 79 (formalities) are met.

Notice declining to be a person’s nominated person

78

(1) A person may at any time decline to be the default nominated person for another person (“P”) by giving notice in writing to that effect to P.

(2) A person who has given notice under subsection (1) may at any time withdraw the notice by giving a further notice in writing to P.

Formalities

Formalities for documents under Part 3

79

(1) This section applies in relation to—

(a) the appointment of a nominated person under section 70;

(b) the revocation of an appointment under section 71(1);

(d) the revocation of a declaration under section 77(5).

(2) For the purposes of section 70(2), 71(2) and 77(6), the conditions of this section are met if—

(a) the document containing the appointment, revocation or declaration is signed by the person making the appointment, revocation or declaration (“X”);

(b) X's signature is witnessed by a person of a prescribed description; and

(i) understands the effect of the appointment, revocation or declaration; and

(ii) has not been subjected to any undue pressure in relation to the appointment, revocation or declaration.

(3) In the case of an appointment of a nominated person under section 70, the certificate under subsection (2)(c) must include a statement that, in the opinion of the person witnessing the signature, X understands that the appointment may result in information about X (including sensitive personal information) being disclosed by virtue of this Act to the person appointed.

(4) Regulations may make provision for this section to have effect with prescribed modifications where a person making an appointment, revocation or declaration mentioned in subsection (1) is physically unable to make a signature.

Powers of the Tribunal

Application to Tribunal for appointment of nominated person

80

(1) A qualifying person may apply to the Tribunal for an order under section 81 in relation to a person who is 16 or over (“P”) if the qualifying person reasonably believes that—

(a) P lacks capacity to make decisions about who should be his or her nominated person; and

(b) one of the conditions mentioned in subsection (2) is met.

(2) Those conditions are—

(a) the person who is P's nominated person is not suitable to be so;

(b) there is no-one who is P's nominated person;

(d) someone is P's nominated person, but it is not practicable to establish who that is.

(3) The factors that may be taken into account in determining whether a person is not suitable to be P's nominated person include whether the person has behaved, is behaving or proposes to behave in a way that is not in P's best interests.

(4) An application may be made on the ground mentioned in subsection (2)(c) or (d) only if the applicant has taken reasonable steps to establish—

(a) whether P has a nominated person; or (as the case may be)

(b) who P's nominated person is.

(5) In this section “a qualifying person” means any of the following—

(a) an appropriate healthcare professional;

(b) if P is an in-patient in a hospital or care home, the managing authority of the hospital or care home;

(d) an attorney under a lasting power of attorney, or an enduring power of attorney, granted by P;

(e) a deputy appointed for P by the court;

(f) any relative of P;

(g) any person interested in P's welfare.

(6) In this section “appropriate healthcare professional” means a person of a prescribed description.

(7) Where the applicant is a person within subsection (5)(a) or (b), the applicant must send a copy of the application to RQIA as soon as practicable.

Tribunal’s power to appoint nominated person

81

(1) This section applies where an application is made to the Tribunal under section 80 in relation to a person (“P”).

(2) The Tribunal may, if it is satisfied of the matters mentioned in paragraphs (a) and (b) of section 80(1), make an order under this section.

(3) An order under this section is an order appointing as P's nominated person one person who is 16 or over and is specified in the order.

(4) An appointment under this section revokes any previous appointment under this section or section 70 of a person as P's nominated person.

(5) A person who has been appointed under this section may resign as P's nominated person by giving notice in writing to that effect to P.

(6) This section is subject to section 77(2)(b) (effect of declaration by P).

Tribunal’s power to disqualify person from being default nominated person

82

(1) This section applies where the Tribunal makes an order under section 81 on the ground that the person who is P's nominated person (“the person concerned”) is not suitable to be P's nominated person.

(2) The Tribunal may order that, if at any time a determination falls to be made of who (if anyone) is the default nominated person for P, the person concerned is to be disregarded.

Revocation of Tribunal’s appointment where P regains capacity

83

(1) This section applies if—

(a) an appointment of a nominated person for a person (“P”) has been made by the Tribunal under section 81; and

(b) P regains capacity to make decisions about who should be his or her nominated person.

(2) P may, at any time while he or she has capacity to do so, apply to the Tribunal for revocation of the appointment.

(3) On an application under this section the Tribunal must make an order revoking the appointment under section 81 unless it is satisfied that P no longer has capacity to make decisions about who should be his or her nominated person.

(4) If on such an application the Tribunal is satisfied—

(a) that P no longer has capacity to make decisions about who should be his or her nominated person, but

(b) that a different person should be appointed as P's nominated person,

the Tribunal may make an order under section 81.

Duties in relation to nominated person

Duties in relation to nominated person: supplementary

84

(1) This section applies where under any provision of or made under this Act a person (“the person concerned”) is subject to—

(a) a duty to consult (if it is practicable and appropriate to do so), and take into account the views of, the nominated person of a person (“P”) in determining what would be in P's best interests; or

(b) a duty to inform, send a document to, or do any other thing in relation to, P's nominated person.

(2) Subsection (3) applies if the person concerned—

(a) takes reasonable steps to establish who P's nominated person is; and

(b) at the relevant time reasonably believes that a particular person (“NP”) is P's nominated person.

(3) In determining whether the person concerned has complied with the duty in question, anything done by that person in relation to NP for the purposes of that duty is to be treated as if NP were P's nominated person (even if NP was in fact not P's nominated person).

(4) Subsection (5) applies (subject to subsection (6)) if the person concerned takes reasonable steps to establish who P's nominated person is and at the relevant time—

(a) the person concerned reasonably believes that there is no-one who is P's nominated person;

(b) it has not been practicable to establish whether P has a nominated person; or

(5) The person concerned is to be taken not to have contravened the duty in question (even if it has in fact been contravened because there is a person who is P's nominated person as respects whom the duty has not been complied with).

(6) Subsection (5) does not apply if—

(a) the duty in question is the duty imposed by section 7(7) and (11)(a) (duty to consult P's nominated person, if any, in determining best interests); and

(b) the case is one where by virtue of section 15 or 54 a nominated person must be in place for P at the relevant time.

(7) In this section “the relevant time” means—

(a) in relation to a duty mentioned in subsection (1)(a), the time when the person concerned determines what would be in P's best interests;

(b) in relation to a duty mentioned in subsection (1)(b), the time when the duty applies.

(8) Subsections (2)(b) and (4)(a) are to be read in accordance with section 85(1).

(9) Subsection (4)(b) and (c) are to be read in accordance with section 85(3).

Determining who is nominated person

85

(1) Where a person (“D”) is determining for any purpose of this Act whether another person (“P”) has a nominated person or who P's nominated person is, then unless D has reason to believe that an action mentioned in subsection (2) has been taken, D may assume that that action has not been taken.

(2) The actions referred to in subsection (1) are—

(a) the appointment of a person as P's nominated person;

(b) the revocation of such an appointment;

(d) any other action under Part 3 which would affect whether P has a nominated person or who P's nominated person is.

(3) For the purposes of this Act it is “practicable to establish” whether a person has a nominated person, or who a person's nominated person is, if it is practicable to form a reasonable belief about that matter (having regard to subsection (1)).

PART 4 — INDEPENDENT MENTAL CAPACITY ADVOCATES

Independent mental capacity advocates

86

(1) Each HSC trust must make arrangements to secure that, where the trust is required by section 91 to instruct an independent mental capacity advocate to represent and provide support to a person (“P”) in the determination of whether a particular act in relation to which P lacks capacity would be in P's best interests, an independent mental capacity advocate is available to be instructed by the trust to represent and provide support to P in that determination.

(2) Arrangements under subsection (1) may include provision for payments to be made to, or in relation to, persons carrying out functions by virtue of the arrangements.

(3) In making arrangements under subsection (1), and instructing an independent mental capacity advocate under section 91, an HSC trust must have regard to the principle that a person to whom a proposed act would relate should be represented by someone who is independent of any person who will be responsible for the act if it is done.

(4) In this Act “independent mental capacity advocate” means a person who has been appointed by an HSC trust, in accordance with regulations under the following provisions of this section, to be a person to whom the trust may from time to time offer instructions under section 91.

(5) The Department may make regulations about the arrangements that may be entered into by HSC trusts for the purposes of this section.

(6) The regulations may in particular—

(a) provide that a person may be appointed as mentioned in subsection (4) only if the person meets prescribed conditions;

(b) provide for the appointment of a person to be subject to prescribed conditions;

(c) enable an appointment to be such that the person appointed will only be offered instructions of a description specified by the appointment.

(7) The conditions that may be prescribed under subsection (6)(a) include—

(a) a condition that the person is approved, or belongs to a description of persons approved, in accordance with the regulations;

(b) a condition that the person has prescribed qualifications or skills or has undertaken prescribed training.

Functions of independent mental capacity advocates: provision of support, etc

87

(1) The Department may make regulations about the functions of independent mental capacity advocates.

(2) The regulations may in particular require prescribed steps to be taken by an independent mental capacity advocate who has been instructed under section 91 to represent and provide support to a person (“P”) in the determination of whether a particular act in relation to which P lacks capacity would be in P's best interests.

(3) The steps that may be prescribed under subsection (2) include steps for the purpose of—

(a) providing support to P so that P may participate as fully as possible in any relevant decision;

(b) obtaining and evaluating relevant information;

(c) ascertaining P's past and present wishes and feelings, and the beliefs and values that would be likely to influence P's decision if P had capacity;

(d) ascertaining what alternative courses of action are available in relation to P;

(e) informing persons responsible for determining what would be in P's best interests of the independent mental capacity advocate's conclusions;

(f) informing P's nominated person (if any) of matters relevant to the nominated person.

(4) The regulations may also make provision as to circumstances in which an independent mental capacity advocate may challenge, or provide assistance for the purposes of challenging, any relevant decision.

Procedure for ensuring that an independent mental capacity advocate is instructed

Request for independent mental capacity advocate to be instructed

88

(1) This section applies where it reasonably appears to an appropriate healthcare professional—

(a) that a determination needs to be made of whether a particular act would be in the best interests of a person (“P”) who is 16 or over and lacks capacity in relation to the matter; and

(b) that by reason of section 35 or 55, an independent mental capacity advocate needs to be instructed to represent and provide support to P in that determination.

(2) The appropriate healthcare professional may request the relevant trust to instruct an independent mental capacity advocate to represent and provide support to P in the determination of whether the act would be in P's best interests.

(3) A request under this section may be made only if the steps required by section 89 have been taken so far as practicable.

(4) A request under this section must be in a prescribed form and include prescribed information.

(5) In this section—

“appropriate healthcare professional” means a person of a prescribed description.

“the relevant trust” means the HSC trust in whose area the act would be carried out.

Steps to be taken before independent mental capacity advocate may be requested

89

(1) The steps referred to in section 88(3) are as follows.

(2) P must be given prescribed information relating to independent mental capacity advocates.

(3) P must be given an opportunity to decide whether to make a declaration under section 90 (refusal by P of independent mental capacity advocate).

(4) If P's decision is to make such a declaration, P must be given an opportunity to make that declaration.

(5) But the steps in subsections (3) and (4) need not be taken where P does not have capacity to make a declaration under section 90.

(6) The information prescribed under subsection (2) must include notice that, if an independent mental capacity advocate is instructed, this may result in information about P (including sensitive personal information) being disclosed by virtue of this Act to the independent mental capacity advocate.

Right to declare that no independent mental capacity advocate to be instructed

90

(1) Where the steps in section 89 have been taken, P may (at any time when P has capacity to do so) declare that he or she does not wish an independent mental capacity advocate to be instructed to represent and provide support to him or her in the matter in question.

(2) A declaration may be revoked by P at any time when P has capacity to do so.

(3) A declaration, or a revocation of a declaration, is valid only if it is in writing and the conditions of section 95 (formalities) are met.

(4) Where a declaration has been made (and not revoked)—

(a) no request may be made under section 88 for an independent mental capacity advocate to be instructed to represent and provide support to P in the matter in question; and

(b) accordingly, no such instruction may be given under section 91.

(5) In this section “declaration” means a declaration under this section.

Instruction of independent mental capacity advocate

91

Where—

(a) an HSC trust receives a request duly made under section 88 for the trust to instruct an independent mental capacity advocate to represent and provide support to a person (“P”) in the determination of whether a particular act would be in P's best interests, and

(b) no declaration has been made by P under section 90 in relation to the matter (or a declaration has been made but revoked),

the trust must instruct an independent mental capacity advocate to represent and provide support to P in the determination of whether the act would be in P's best interests.

Powers of independent mental capacity advocates

92

(1) This section applies where an independent mental capacity advocate has been instructed as mentioned in section 91 to represent and provide support to a person (“P”).

(2) The independent mental capacity advocate may do anything within subsection (3) or (4) for the purpose of exercising any of his or her functions.

(3) The independent mental capacity advocate may, at any reasonable time, visit P and interview P in private.

(4) The independent mental capacity advocate may, at any reasonable time, require the production of, examine and take copies of—

(a) any health records relating to P, or

(b) any records relating to P's care, treatment or personal welfare,

that the person holding the record considers may be relevant to the independent mental capacity advocate's investigation.

Procedure after instruction of independent mental capacity advocate

Right of person to discontinue involvement of independent mental capacity advocate

93

(1) Where an independent mental capacity advocate has been instructed under section 91 to represent and provide support to a person in a matter, the person may (at any time when the person has capacity to do so) declare that he or she does not wish to continue to have the services of an independent mental capacity advocate in the matter.

(2) Where a declaration is made, the HSC trust that instructed the independent mental capacity advocate must withdraw the instruction.

(3) A declaration may be revoked by the person at any time when the person has capacity to do so.

(4) A declaration, or a revocation of a declaration, is valid only if it is in writing and the conditions of section 95 (formalities) are met.

(5) In this section “declaration” means a declaration under this section.

Continuing duty of trust in relation to independent mental capacity advocate

94

(1) The duty of an HSC trust under section 91 is to be taken to include a duty to instruct a new independent mental capacity advocate to represent and provide support to P in the matter in question if for any reason an independent mental capacity advocate previously instructed under that section to represent and provide support to P in that matter ceases to be able to do so.

(2) But this does not apply where—

(a) the reason why the independent mental capacity advocate previously instructed is no longer able to represent and provide support to P in the matter is that P has made a declaration under section 93; and

(b) that declaration has not been revoked.

Formalities

Formalities for declarations under Part 4

95

(1) This section applies to the making or revocation of a declaration under section 90 or 93.

(2) For the purposes of section 90(3) or 93(4), the conditions of this section are met if—

(a) the document containing the declaration or revocation is signed by the person making the declaration or revocation (“P”);

(b) P's signature is witnessed by a person of a prescribed description; and

(i) understands the effect of the declaration or revocation; and

(ii) has not been subjected to any undue pressure in relation to the declaration or revocation.

(3) Regulations may make provision for subsection (2) to have effect with prescribed modifications where the person making or revoking the declaration is physically unable to make a signature.

Power to adjust role of independent mental capacity advocates

96

(1) The Department may by regulations—

(a) expand the role of independent mental capacity advocates in relation to persons who are 16 or over and lack capacity;

(b) adjust the obligation to make arrangements imposed by section 86.

(2) The regulations may in particular—

(a) prescribe circumstances in which an independent mental capacity advocate must be instructed by a person of a prescribed description to represent and provide support to a person who lacks capacity;

(b) prescribe circumstances in which an independent mental capacity advocate may be so instructed;

(c) contain provision about the making of requests for independent mental capacity advocates to be instructed in prescribed circumstances;

(d) contain provision about the functions of independent mental capacity advocates instructed in prescribed circumstances.

(3) The regulations may make provision in any way that the Department considers appropriate and may in particular—

(a) apply, or make provision corresponding to, any provision within subsection (4) (with or without modifications);

(b) amend any provision of this Part.

(4) The provisions are—

(a) any provision of this Part;

(b) any provision of regulations made under this Part;

PART 5 — LASTING POWERS OF ATTORNEY

Creation of lasting power of attorney

Lasting powers of attorney

97

(1) A lasting power of attorney is a power of attorney by which the donor confers on the attorney (or attorneys) authority to make decisions about (or about specified matters concerning) all or any of the following—

(a) the donor's care, treatment and personal welfare,

(b) the donor's property and affairs,

and which includes authority to make such decisions in circumstances where the donor no longer has capacity.

(2) A lasting power of attorney is created only if—

(a) an instrument conferring authority of the kind mentioned in subsection (1) is made and registered in accordance with Schedule 4;

(b) at the time when the donor executes the instrument, the donor is 16 or over and has capacity to execute it; and

(3) An instrument which—

(a) purports to create a lasting power of attorney, but

(b) does not comply with this section, section 101 or Schedule 4,

confers no authority.

(4) The authority conferred by a lasting power of attorney is subject to—

(a) the provisions of this Act and, in particular—

(i) sections 98 to 100 (restrictions);

(ii) sections 1, 2, 5 and 7 (principles, best interests); and

(b) any conditions or restrictions specified in the instrument.

(5) In the following provisions of this Part, in relation to a lasting power of attorney or an instrument executed with a view to creating such a power—

(a) any reference to “care, treatment and personal welfare” includes matters concerning care, treatment or personal welfare that are specified in the power or instrument;

(b) any reference to “property and affairs” includes matters concerning property or affairs that are specified in the power or instrument.

(6) Subsections (2) and (3) are subject to—

(a) section 102(5) (joint and several appointments: breach of requirements as respects some but not all attorneys); and

(b) section 103(6) (breach of requirements as respects replacement attorneys).

Scope of lasting power of attorney

Restrictions on scope of lasting power of attorney

98

(1) Where a lasting power of attorney authorises an attorney to make decisions about the donor's care, treatment and personal welfare (or about any of those matters), the authority—

(a) does not extend to making such decisions in circumstances other than those where the donor lacks, or the attorney reasonably believes that the donor lacks, capacity; and

(b) is subject to section 99(2) (effective advance decision to refuse treatment made after execution of instrument).

(2) Where a lasting power of attorney authorises an attorney to make decisions about the donor's treatment (whether or not it also authorises the making of decisions about other matters), the authority extends to giving or refusing consent to the provision of a treatment by a person providing health care for the donor; but this subsection—

(a) is subject to subsections (1) and (7) and to any conditions or restrictions in the instrument; and

(b) authorises the giving or refusing of consent to the provision of life-sustaining treatment only if the instrument contains express provision to that effect.

(3) A lasting power of attorney does not authorise an attorney to deprive the donor of his or her liberty or to authorise another person to deprive the donor of his or her liberty.

(4) A lasting power of attorney authorises an attorney to do, or to authorise another person to do, an act restraining the donor only if the conditions in subsection (6) are met.

(5) In subsection (4) an “act restraining the donor” means an act (other than a deprivation of the donor's liberty) which—

(a) is intended to restrict the donor's liberty of movement, whether or not the donor resists; or

(b) is a use of force or a threat to use force and is done with the intention of securing the doing of an act which the donor resists.

(6) The conditions referred to in subsection (4) are that the attorney reasonably believes—

(a) that the donor lacks capacity in relation to the matter in question;

(b) that there is a risk of harm to the donor if the attorney does not do or (as the case may be) authorise the act restraining the donor; and

(i) the likelihood of harm to the donor; and

(ii) the seriousness of the harm concerned.

(7) A lasting power of attorney does not authorise an attorney to give consent to psychosurgery in respect of the donor.

(8) Where the donor of a lasting power of attorney was under 18 when he or she executed the instrument mentioned in section 97(2)(a)—

(a) the lasting power of attorney has the same effect as it would have if the donor had been 18 or over when he or she executed the instrument; except that

(b) at any time when the donor is under 18, the authority conferred by the lasting power does not extend to doing anything that the donor could not do at that time (even if the donor had capacity, within the meaning of Part 1, in relation to the matter in question).

(9) The Department may by regulations amend subsection (7) so as to extend the descriptions of treatment to which an attorney may not give consent.

Relationship between advance decisions and lasting powers of attorney

99

(1) This section applies in relation to any authority conferred on an attorney by a lasting power of attorney to give or refuse consent to the carrying out or continuation of a treatment.

(2) The authority is subject to any effective advance decision to refuse the treatment made by the donor after, or at the same time as, the execution of the relevant instrument.

(3) Any relevant decision to refuse the treatment made by the donor before the execution of the relevant instrument is to be treated as having been withdrawn by the execution of the relevant instrument (and accordingly is not an effective advance decision to refuse the treatment).

(4) In this section—

(a) “an effective advance decision to refuse the treatment” means a decision which, under the common law relating to advance decisions, has the same effect as if at the material time the donor—

(i) refused consent to the treatment's being carried out or continued; and

(ii) had capacity to refuse that consent;

(b) “the material time” means the time when the question arises whether the treatment should be carried out or continued;

(c) “relevant decision to refuse the treatment” means a decision that would (but for the execution of the relevant instrument) have been an effective advance decision to refuse the treatment;

(d) references to the “execution of the relevant instrument” are to the execution by the donor of an instrument with a view to creating the lasting power of attorney.

(5) Subsection (3) does not affect any rule of law under which a decision that would otherwise fall within subsection (4)(a) is to be regarded as having been withdrawn.

Scope of lasting powers of attorney: gifts

100

(1) Where a lasting power of attorney authorises an attorney to make decisions about the donor's property and affairs, it does not authorise the attorney to dispose of the donor's property by making gifts except to the extent permitted by subsection (2).

(2) The attorney may make gifts—

(a) on customary occasions to persons (including the attorney) who are related to or associated with the donor, or

(b) to any charity to which the donor made or might have been expected to 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.

(3) “Customary occasion” means—

(a) a birthday, the birth of a child, a marriage or anniversary of a marriage, or the formation or anniversary of a civil partnership; or

(b) any other occasion on which presents are customarily given within families or among friends or associates.

(4) Subsection (2) is subject to any conditions or restrictions in the instrument.

Appointment of attorneys and replacements

Appointment of attorneys: requirements as respects attorneys

101

(1) A person appointed as an attorney by an instrument executed with a view to creating a lasting power of attorney (a “relevant instrument”) must be—

(a) an individual who is 18 or over at the time the instrument is executed; or

(b) if the instrument relates only to the donor's property and affairs, either such an individual or a trust corporation.

(2) An individual who is bankrupt may not be appointed by a relevant instrument as an attorney in relation to the donor's property and affairs.

Appointment of two or more attorneys

102

(1) This section applies in relation to an instrument executed with a view to creating a lasting power of attorney which appoints two or more persons to act as attorneys.

(2) The instrument may appoint them to act—

(a) jointly;

(b) jointly and severally; or

(3) To the extent to which it does not specify whether they are to act jointly or jointly and severally, the instrument is to be treated as appointing them to act jointly.

(4) If they are to act jointly in respect of all matters, a failure, as respects one of the persons, to comply with a requirement of section 101 or Part 1 or 2 of Schedule 4 prevents a lasting power of attorney from being created.

(5) If they are to act jointly and severally in respect of some or all matters, a failure, as respects one of the persons, to comply with a requirement of section 101 or Part 1 or 2 of Schedule 4—

(a) prevents the appointment from taking effect in that person's case; but

(b) does not prevent a lasting power of attorney from being created in the case of the other or others (limited, where they are to act jointly and severally only in respect of some matters, to those matters).

Appointment of replacement attorneys

103

(1) An instrument executed with a view to creating a lasting power of attorney—

(a) cannot give a person appointed as attorney power to appoint a substitute or successor (whether of that person or any other person appointed as attorney); but

(b) may itself appoint one or more persons (“replacement attorneys”) to replace any person appointed as attorney on the occurrence of a terminating event which has the effect of terminating that person's appointment.

(2) An instrument that appoints a person as a replacement attorney may not appoint a person to replace a replacement attorney (in the event that a terminating event terminates the appointment of the replacement attorney).

(3) Where an instrument executed with a view to creating a lasting power of attorney—

(a) appoints two or more persons as attorneys, and

(b) appoints two or more persons as replacement attorneys,

it may specify the order in which the appointments of the replacement attorneys are to take effect.

(4) Nothing in subsection (3) limits the power under subsection (1)(b) for an instrument to specify a particular person (or persons) as the person who is to replace a particular person appointed as attorney (“A”) on the occurrence of a terminating event that terminates A's appointment.

(5) Section 101 (requirements as respects attorneys) applies in relation to the appointment of a person as a replacement attorney as it applies in relation to the appointment of a person as an attorney.

(6) A failure, in relation to a person appointed as a replacement attorney, to comply with a requirement of section 101 or Part 1 or 2 of Schedule 4 does not prevent a lasting power of attorney from being created.

(7) In this section “a terminating event” means—

(a) an event mentioned in section 107(2)(a) to (f);

(b) a termination of an appointment under section 110(4)(b).

Appointment of two or more replacements for a single initial appointee

104

(1) This section applies to an instrument executed with a view to creating a lasting power of attorney that—

(a) appoints one person (“A”) as attorney; and

(b) under section 103(1)(b) appoints two or more persons (“the replacement attorneys”) to replace A.

(2) The instrument may provide that the replacement attorneys, if they replace A, are to act—

(a) jointly;

(b) jointly and severally; or

(3) To the extent to which it does not specify whether they are to act jointly or jointly and severally, the instrument is to be treated as appointing them to act jointly.

(4) Subsections (5) and (6) apply where, in relation to some but not all of the replacement attorneys, there is a failure to comply with a requirement of section 101 or Part 1 or 2 of Schedule 4.

(5) To the extent that the replacement attorneys were appointed to act jointly, the appointment mentioned in subsection (1)(b) is of no effect.

(6) To the extent that they were appointed to act jointly and severally, that appointment is to be treated as being an appointment of such of the replacement attorneys as respects whom there is no failure to comply with a requirement of section 101 or Part 1 or 2 of Schedule 4.

Replacement attorneys: position where two or more initial appointees

105

(1) This section applies where—

(a) an instrument executed with a view to creating a lasting power of attorney appoints two or more persons as attorneys (the “initial appointees”);

(b) an initial appointee is replaced under the instrument by virtue of section 103(1)(b); and

(2) A person is a “relevant appointee” under the instrument if—

(a) the person was appointed as an attorney by the instrument (whether or not to act jointly with the initial appointee who has been replaced) and no terminating event has terminated the person's appointment; or

(b) the person has replaced an initial appointee and no terminating event has terminated the person's appointment.

(3) The relevant appointees are—

(a) if the initial appointees were appointed to act jointly, to be treated as appointed to act jointly;

(b) if the initial appointees were appointed to act jointly and severally, to be treated as appointed to act jointly and severally;

(c) if the initial appointees were appointed to act jointly in respect of some matters and jointly and severally in respect of others, to be treated as appointed to act in the same way.

(4) But where a terminating event has terminated a relevant appointee's appointment in relation to the donor's property and affairs (but not in relation to other matters), subsection (3) is subject to that termination.

(5) In this section “terminating event” has the same meaning as in section 103.

Revocation of lasting power etc by donor or on donor’s bankruptcy

106

(1) Where—

(a) an instrument (“a relevant instrument”) is executed with a view to creating a lasting power of attorney, or

(b) a lasting power of attorney is registered,

the donor may, at any time when the donor has capacity to do so, revoke the instrument or the lasting power of attorney.

(2) Where a relevant instrument has been executed (but not registered) and the donor is bankrupt, the bankruptcy revokes the instrument so far as it relates to the donor's property and affairs.

(3) Where the donor of a lasting power of attorney is bankrupt—

(a) if the donor is bankrupt merely because an interim bankruptcy restrictions order has effect, the power is suspended, so far as it relates to the donor's property and affairs, for so long as the order has effect;

(b) otherwise, the bankruptcy revokes the power so far as it relates to the donor's property and affairs.

Revocation etc: events relating to the attorney

107

(1) This section applies where an event mentioned in subsection (2) occurs in relation to a person (“A”) appointed as an attorney or replacement attorney by—

(a) a lasting power of attorney; or

(b) an instrument executed with a view to creating a lasting power of attorney.

(2) The events referred to in subsection (1) are—

(a) the disclaimer of the appointment by A in accordance with any prescribed requirements;

(b) the death of A;

(d) if A is a trust corporation, its winding-up or dissolution;

(e) the dissolution, annulment or judicial separation of a marriage or civil partnership between the donor and A (but see subsections (5) and (9));

(f) the lack of capacity of A.

(3) The event terminates A's appointment.

(4) If A is an attorney under the power or an intended attorney under the instrument, the event revokes the power or instrument unless—

(a) A was appointed as an attorney by the power or instrument and is replaced under its terms; or

(b) A is one of two or more persons who were to act jointly and severally in respect of any matter and, after the event, there is at least one remaining attorney or intended attorney (as the case may be).

(5) Subsections (3) and (4) are subject—

(a) in the case of an event mentioned in subsection (2)(c), to subsections (6) and (7);

(b) in the case of an event mentioned in subsection (2)(e), to subsection (9).

(6) The bankruptcy of A does not terminate A's appointment, or revoke the instrument or power, in so far as A's authority relates to the donor's care, treatment and personal welfare.

(7) Where A is an attorney under a lasting power of attorney and is bankrupt merely because an interim bankruptcy restrictions order has effect, A's appointment and the power are suspended, so far as they relate to the donor's property and affairs, for so long as the order has effect.

(8) The reference in subsection (7) to the suspension of the power is to be read, where A is one of two or more attorneys who are to act jointly and severally in respect of any matter, as a reference to the suspension of the power so far as it relates to A.

(9) The dissolution, annulment or judicial separation of a marriage or civil partnership does not terminate A's appointment, or revoke the instrument or power, if the instrument or power provides that it is not to do so.

(10) In subsection (4) “intended attorney” means a person who, if the instrument were registered and a lasting power of attorney were created, would be an attorney under the lasting power.

(11) In this section references to the “judicial separation” of a marriage or civil partnership include—

(a) the making of a decree of judicial separation in respect of a marriage, and

(b) the making of a separation order in respect of a civil partnership.

Protection of attorney and others

Protection of attorney and others if no power created or power revoked

108

(1) Subsections (2) to (4) apply if—

(a) an instrument has been registered under Schedule 4 as a lasting power of attorney, but

(b) a lasting power of attorney was not created,

whether or not the registration has been cancelled at the time of the act or transaction in question.

(2) A person (“X”) who acts (whether alone or with others) in purported exercise of the power does not incur any liability (to the donor or any other person) because of the non-existence of the power unless at the time of acting X—

(a) knows that a lasting power of attorney was not created; or

(b) is aware of circumstances which, if a lasting power of attorney had been created, would have terminated X's authority to act as an attorney.

(3) Any transaction between—

(a) one or more persons acting in purported exercise of the power, and

(b) another person (“Y”),

is, in favour of Y, as valid as if the power had been in existence; but this is subject to subsection (4).

(4) Subsection (3) does not apply if, at the time of the transaction, Y—

(a) knows that a lasting power of attorney was not created; or

(b) is aware of circumstances which, if a lasting power of attorney had been created, would have terminated the authority of any person within subsection (3)(a) to act as an attorney.

(5) If the interest of a purchaser depends on whether a transaction was valid by virtue of subsection (3), it is to be conclusively presumed in favour of the purchaser that the transaction was valid if—

(a) the transaction was completed within 12 months of the date on which the instrument was registered; or

(b) Y makes a statutory declaration, before or within 3 months after the completion of the purchase, that Y had no reason at the time of the transaction to doubt that the person or persons mentioned in subsection (3)(a) had authority to dispose of the property which was the subject of the transaction.

(6) In its application to a lasting power of attorney which relates to matters in addition to the donor's property and affairs, section 4 of the Powers of Attorney Act (Northern Ireland) 1971 (protection where power is revoked) has effect as if references to revocation included the cessation of the power in relation to the donor's property and affairs.

Reliance on authority of attorney in relation to treatment etc

109

(1) This section applies if—

(a) an instrument has been registered under Schedule 4 as a lasting power of attorney granted by a person (“P”);

(b) another person (“D”) does an act in connection with the care, treatment or personal welfare of P;

(c) D does the act with the consent of a person (“A”) purporting to be an attorney under a lasting power of attorney granted by P; and

(d) either A is not such an attorney, or it is not within the scope of A's authority to consent in relation to the matter in question.

(2) If—

(a) before doing the act, D takes reasonable steps to establish whether—

(i) A is an attorney under a lasting power of attorney granted by P, and

(ii) it is within the scope of A's authority to consent in relation to the matter in question, and

(b) when doing the act, D reasonably believes that A is such an attorney and has authority to consent in relation to the matter,

D does not incur any liability in relation to the act because A was not such an attorney or, as the case may be, did not have such authority.

Powers of the court

Powers of court as to lasting powers of attorney

110

(1) This section applies if—

(a) a person has executed an instrument with a view to creating a lasting power of attorney (a “relevant instrument”) or purported to execute a relevant instrument; or

(b) an instrument has been registered as a lasting power of attorney.

(2) The court may determine any question relating to—

(a) whether one or more of the requirements for the creation of a lasting power of attorney have been met;

(b) whether the instrument or power has been revoked or has otherwise come to an end.

(3) Subsection (4) applies if the court is satisfied—

(a) that fraud or undue pressure was used to induce a person to create a lasting power of attorney or execute a relevant instrument;

(b) that an attorney under a lasting power of attorney has behaved, or is behaving, in a way that contravenes the attorney's authority or is not in the donor's best interests; or

(c) that a person appointed as attorney or replacement attorney by a lasting power of attorney or relevant instrument proposes to behave as attorney in a way that would contravene the attorney's authority or would not be in the donor's best interests.

(4) Where this subsection applies, the court may—

(a) direct that an instrument purporting to create the lasting power of attorney is not to be registered; or

(b) if the donor lacks capacity to revoke the instrument or the lasting power of attorney—

(i) revoke the instrument or power; or

(ii) terminate the appointment of a person appointed as attorney or replacement attorney by the instrument or power.

Powers of court as to operation of lasting powers of attorney

111

(1) 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.

(2) The court may—

(a) give directions with respect to decisions—

(i) which an attorney under a lasting power of attorney has authority to make; and

(ii) which the donor lacks capacity to make;

(b) give any consent or authorisation to act which an attorney under a lasting power of attorney would have to obtain from the donor if the donor had capacity to give it.

(3) The court may, if the donor of a lasting power of attorney lacks capacity to do so—

(a) give directions to an attorney with respect to the rendering by the attorney of reports or accounts and the production of records kept by the attorney for that purpose;

(b) require an attorney (“A”) to supply information or produce documents or things in A's possession as attorney;

(d) relieve an attorney wholly or partly from any liability which the attorney has or may have incurred on account of a breach of a duty as attorney.

(4) The court may authorise the making of gifts, under a lasting power of attorney, which are not within section 100(2) (permitted gifts).

PART 6 — HIGH COURT POWERS: DECISIONS AND DEPUTIES

Declarations

The court’s power to make declarations

112

(1) The court may make declarations in relation to a person who is 16 or over as to—

(a) whether the person has or lacks capacity to make a decision specified in the declaration;

(b) whether the person has or lacks capacity to make decisions on a matter described in the declaration;

(2) In this section “act” includes an omission and a course of conduct.

Decisions and deputies

The court’s powers to make decisions and appoint deputies: general

113

(1) This section applies if—

(a) a person (“P”) lacks capacity in relation to a matter or matters concerning—

(i) P's care, treatment or personal welfare, or

(ii) P's property and affairs; and

(b) P is 16 or over or section 115(3) applies.

(2) The court may—

(a) by making an order, make on P's behalf a decision or decisions that P lacks capacity to make in relation to the matter or matters; or

(b) appoint a person (a “deputy”) to make decisions on P's behalf in relation to the matter or matters (see further sections 116 and 117).

(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1, 2, 5 and 7 (principles, best interests).

(4) When deciding whether it would be in P's best interests to appoint a deputy, the court must (in addition to complying with section 7) have regard to the principles that—

(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision; and

(b) the powers conferred on a deputy should be as limited in scope and duration as is practicable in the circumstances.

(5) The court may—

(a) make such further orders,

(b) give such directions, and

as it considers appropriate for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).

(6) The court may make an order or appointment under any provision of this section, or give a direction under subsection (5), on such terms as it considers are in P's best interests (even where no application is before the court for an order, appointment or direction on those terms).

(7) An order of the court may be varied or discharged by a subsequent order.

(8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on a deputy if it is satisfied that the deputy—

(a) has behaved, or is behaving, in a way that contravenes the authority conferred on the deputy by the court or is not in P's best interests; or

(b) proposes to behave in a way that would contravene that authority or would not be in P's best interests.

Section 113 powers: care, treatment and personal welfare

114

(1) The powers under section 113 as respects P's care, treatment and personal welfare extend in particular to—

(a) deciding where P is to live;

(b) deciding what contact, if any, P is to have with any specified persons;

(d) giving or refusing consent to the provision of a treatment by a person providing health care for P;

(e) giving a direction that a person responsible for P's health care allow a different person to take over that responsibility.

(2) In this section “specified” means specified by the court.

(3) Subsection (1) is subject to section 117 (restrictions on deputies).

Section 113 powers: property and affairs

115

(1) The powers under section 113 as respects P's property and affairs extend in particular to—

(a) the control and management of P's property;

(b) the sale, exchange, charging, gift or other disposition of P's property;

(d) the carrying on, on P's behalf, of any profession, trade or business;

(e) the taking of a decision which will have the effect of dissolving a partnership of which P is a member;

(f) the carrying out of any contract entered into by P;

(g) the discharge of P's debts and of any of P's obligations, whether legally enforceable or not;

(h) the settlement of any of P's property, whether for P's benefit or for the benefit of others;

(i) the execution for P of a will;

(j) the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise;

(k) the conduct of legal proceedings in P's name or on P's behalf.

(2) No will may be executed by virtue of subsection (1)(i) at a time when P is under 18.

(3) The powers under section 113 as respects any matter concerning P's property and affairs (except the power to execute a will for P) may be exercised even if P is under 16 if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when P reaches 18.

(4) Schedule 5 supplements the provisions of this section.

(5) Subsection (1) is subject to section 117 (restrictions on deputies).

Appointment of deputies

116

(1) A deputy appointed by the court must be—

(a) an individual who is 18 or over; or

(b) as respects powers concerning property and affairs, either such an individual or a trust corporation.

(2) The court may appoint an individual by appointing the holder for the time being of a specified office or position.

(3) A person may be appointed as a deputy only with that person's consent.

(4) The court may appoint two or more deputies to act—

(a) jointly;

(b) jointly and severally; or

(5) 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—

(a) in specified circumstances or on the happening of specified events;

(b) for a specified period.

(6) A deputy is to be treated as P's agent in relation to anything done or decided by the deputy within the scope of the deputy's appointment and in accordance with this Act.

(7) The deputy is entitled—

(a) to be reimbursed out of P's property for the deputy's reasonable expenses in discharging the deputy's functions; and

(b) if the court so directs when appointing the deputy, to remuneration out of P's property for discharging them.

(8) The court may confer on a deputy powers to—

(a) take possession or control of all or any specified part of P's property;

(b) exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.

(9) The court may require a deputy—

(a) to give to the Public Guardian such security as the court considers appropriate for the proper performance of the deputy's functions; and

(b) to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.

(10) In this section “specified” means specified by the court.

Restrictions on deputies

117

(1) A deputy does not have power to make a decision on behalf of P in relation to a matter unless P lacks capacity, or the deputy reasonably believes that P lacks capacity, in relation to the matter.

(2) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1, 2, 5 and 7 (principles, best interests).

(3) Nothing in section 113 or 114 permits a deputy to be given power—

(a) to prohibit a specified person from having contact with P;

(b) to direct a person responsible for P's health care to allow a different person to take over that responsibility.

(4) Nothing in section 113 or 115 permits a deputy to be given powers with respect to—

(a) the settlement of any of P's property, whether for P's benefit or for the benefit of others;

(b) the execution for P of a will; or

(c) the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise.

(5) A deputy may not be given power to make a decision on behalf of P which is inconsistent with—

(a) a decision that is made in accordance with this Act by an attorney under a lasting power of attorney granted by P, and is within the scope of the attorney's authority; or

(b) a decision that is made in accordance with the Enduring Powers of Attorney (Northern Ireland) Order 1987 by an attorney under an enduring power of attorney granted by P, and is within the scope of the attorney's authority.

(6) A deputy may not refuse consent to the provision of life-sustaining treatment to P.

(7) A deputy may not deprive P of his or her liberty or authorise another person to deprive P of his or her liberty.

(8) A deputy may not do, or authorise another person to do, an act restraining P unless in doing so the deputy is acting within the scope of an authority expressly conferred on the deputy by the court and the deputy reasonably believes—

(a) that P lacks capacity in relation to the matter in question;

(b) that there is a risk of harm to P if the deputy does not do or (as the case may be) authorise the act restraining P; and

(i) the likelihood of harm to P; and

(ii) the seriousness of the harm concerned.

(9) In this section an “act restraining P” means an act (other than a deprivation of P's liberty) which—

(a) is intended to restrict P's liberty of movement, whether or not P resists; or

(b) is a use of force or a threat to use force and is done with the intention of securing the doing of an act which P resists.

(10) A deputy may not give consent to psychosurgery in respect of P.

(11) The Department may by regulations amend subsection (10) so as to extend the descriptions of treatment to which a deputy may not give consent.

Reliance on authority of deputy in relation to treatment etc

118

(1) This section applies if—

(a) an order has been made under section 113(2)(b) appointing a deputy for a person (“P”);

(b) another person (“D”) does an act in connection with the care, treatment or personal welfare of P;

(d) either C is not P's deputy, or it is not within the scope of C's authority to consent in relation to the matter in question.

(2) If—

(a) before doing the act, D takes reasonable steps to establish whether—

(i) C is P's deputy, and

(ii) it is within the scope of C's authority to consent in relation to the matter in question, and

(b) when doing the act, D reasonably believes that C is P's deputy and has authority to consent in relation to the matter,

D does not incur any liability in relation to the act because C was not P's deputy or (as the case may be) did not have such authority.

Ancillary powers of the court

Interim orders and directions

119

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—

(a) there is reason to believe that P lacks capacity in relation to the matter;

(b) the matter is one to which the court's powers under this Part extend; and

Power to call for reports

120

(1) This section applies where, in proceedings brought in respect of a person (“P”) under this Part, the court is considering a question relating to P.

(2) The court may require a report to be made to it by the Public Guardian or by a Court Visitor.

(3) The court may require an HSC trust, the Department or RQIA to arrange for a report to be made—

(a) by one of its officers or employees; or

(b) by such other person (other than the Public Guardian or a Court Visitor) as that body considers appropriate.

(4) The report must deal with such matters relating to P as the court may direct.

(5) Rules of court may specify matters which, unless the court directs otherwise, must also be dealt with in the report.

(6) The report may be made in writing or orally, as the court may direct.

Powers of Public Guardian or Court Visitor in respect of reports under section 120(2)

121

(1) This section applies where, in proceedings brought in respect of a person (“P”) under this Part, the court imposes a requirement to make a report under section 120(2).

(2) If the Public Guardian or a Court Visitor is making a visit in the course of complying with the requirement, he or she may interview P in private.

(3) If a Court Visitor who is a Special Visitor is making a visit in the course of complying with the requirement, he or she may if the court so directs carry out in private a medical, psychiatric or psychological examination of P's capacity and condition.

(4) For the purpose of complying with the requirement, the Public Guardian or a Court Visitor may at all reasonable times require the production of, examine and take copies of—

(a) any health record (as defined by section 306),

(b) any relevant record, or

so far as the record relates to P.

(5) But if P has capacity in relation to whether the power under subsection (4) should be exercised, the power may be exercised only with P's consent.

(6) In this section—

“court record” means documentation held by the court relating to the proceedings mentioned in subsection (1);

“relevant record” means a record relating to P's care, treatment or personal welfare which is a record of or held by—an HSC trust;...RQIA;a Northern Ireland department or its employees or agents;the managing authority of an independent hospital; orthe managing authority of a care home.

Practice and procedure

Applications to the court

122

(1) No leave is required for an application to the court for the exercise of any of its powers under this Part—

(a) by a person who lacks, or is alleged to lack, capacity;

(b) if such a person is under 18, by anyone with parental responsibility for that person;

(c) where the application relates to a lasting power of attorney or enduring power of attorney and the application is made by the donor or any person who is an attorney under the power;

(d) by a deputy appointed by the court for a person to whom the application relates;

(e) by a person named in an existing order of the court, if the application relates to the order; or

(f) where the application is made by virtue of section 129 (proceedings following inquiry by Public Guardian).

(2) But, subject to rules of court and to paragraph 21(2) of Schedule 9 (declarations relating to private international law), leave is required for any other application to the court for the exercise of any of its powers under this Act.

(3) In deciding whether to grant leave the court must (in particular) have regard to—

(a) the applicant's connection with the person to whom the application relates;

(b) the reasons for the application;

(d) whether the benefit can be achieved in any other way.

Duty to notify Attorney General

123

(1) A person who makes an application to the court under this Part must notify the Attorney General of that fact.

(2) The notification must be made in accordance with rules of court.

(3) The Attorney General may intervene in the proceedings on the application in such way as the Attorney General considers appropriate.

Rules of court

124

(1) In this section “proceedings” means proceedings before the court with respect to a person who lacks, or is alleged to lack, capacity (“P”).

(2) Rules of court may make provision as to the conduct of such proceedings including provision—

(a) as to the carrying out of preliminary or incidental inquiries;

(b) as to the way and form in which proceedings are to be commenced and carried on;

(d) as to the persons who are to be entitled to be notified of, to attend, or to take part in proceedings;

(e) as to the evidence which may be authorised or required to be given in proceedings and the way (whether on oath or otherwise and whether orally or in writing) in which it is to be given;

(f) as to the administration of oaths and taking of affidavits for the purposes of proceedings;

(g) for the allocation, in specified circumstances, of any specified description of proceedings to a specified judge or to specified descriptions of judges;

(h) for the exercise of the jurisdiction of the court, in specified circumstances, by its officers or other staff;

(i) for enabling the court to appoint a suitable person (who may, with his or her consent, be the Official Solicitor) to act in the name of, or on behalf of, or to represent P;

(j) for enabling an application to the court to be disposed of without a hearing;

(k) as to authorising or requiring—

(i) the attendance and examination of persons who lack, or are alleged to lack capacity;

(ii) the provision of information; and

(iii) the production of documents;

(l) for enabling the court to proceed with, or with any part of, a hearing in the absence of P;

(m) 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;

(n) as to what may be received as evidence (whether or not admissible apart from the rules) and the way in which it is to be presented;

(o) for the enforcement of orders made and directions given in the proceedings;

(p) as to—

(i) the making of orders for the payment of costs to or by persons attending, as well as persons taking part in, proceedings; and

(ii) the way in which and funds out of which any such costs are to be paid;

(q) the way in which, and funds from which, fees are to be paid;

(r) as to the termination of proceedings, whether on the death or recovery of P or otherwise, and the exercise, pending the termination of the proceedings, of powers exercisable under this Part in relation to P's—

(i) care, treatment or personal welfare; or

(ii) property or affairs;

(s) for charging fees and costs upon P's estate;

(t) for the payment of fees and costs within a specified time of P's death or the conclusion of the proceedings.

(3) Rules of court may also make provision as to appeals from decisions of the court in such proceedings, including provision—

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