Legalize / United Kingdom / Public General Act

Mental Capacity Act 2005

Type Public General Act

Publication 2005-04-07

Last updated 2023-02-07

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(q) a person appointed under section 30(1)(a) or (b) of the Courts-Martial (Appeals) Act 1951 (assistants to the Judge Advocate General),

(r) a deputy judge of the High Court,

(s) the Senior President of Tribunals,

(t) an ordinary judge of the Court of Appeal (including the vice-president, if any, of either division of that court),

(u) the President of the Queen's Bench Division,

(v) the Master of the Rolls, or

(w) the Lord Chief Justice.

(3) The Lord Chief Justice, after consulting the Lord Chancellor, must—

(a) appoint one of the judges nominated by virtue of subsection (2)(a) to (c) to be President of the Court of Protection, and

(b) appoint another of those judges to be Vice-President of the Court of Protection.

(4) 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.

Supplementary powers

General powers and effect of orders etc.

47

(1) The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.

(2) 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.

(3) 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.

Interim orders and directions

48

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 its powers under this Act extend, and

Power to call for reports

49

(1) 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.

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

(3) The court may require a local authority, or an NHS body, 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 of Protection Visitor) as the authority, or the NHS body, considers appropriate.

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

(5) Court of Protection Rules 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.

(7) In complying with a requirement, the Public Guardian or a Court of Protection Visitor may, at all reasonable times, examine and take copies of—

(a) any health record,

(b) any record of, or held by, a local authority and compiled in connection with a social services function, and

(c) 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,

so far as the record relates to P.

(8) 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.

(9) 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.

(10) “NHS body” has the meaning given in section 148 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43).

(11) “Requirement” means a requirement imposed under subsection (2) or (3).

Practice and procedure

Applications to the Court of Protection

50

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

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

(b) if such a person has not reached 18, by anyone with parental responsibility for him,

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

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

(1A) Nor is permission required for an application to the court under section 21A by the relevant person's representative.

(2) 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.

(3) In deciding whether to grant permission 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.

(4) “Parental responsibility” has the same meaning as in the Children Act 1989 (c. 41).

Court of Protection Rules

51

(1) 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.

(2) Court of Protection Rules may, in particular, make provision—

(a) as to the manner and form in which proceedings are to be commenced;

(b) as to the persons entitled to be notified of, and be made parties to, the proceedings;

(c) 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;

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) 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;

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

(g) 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;

(h) 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;

(i) 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;

(j) for the enforcement of orders made and directions given in the proceedings.

(3) Court of Protection Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions.

(4) Court of Protection Rules may make different provision for different areas.

Practice directions

52

(1) 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.

(2) Practice directions given otherwise than under subsection (1) may not be given without the approval of—

(a) the Lord Chancellor, and

(b) the Lord Chief Justice.

(3) The Lord Chief Justice may nominate any of the following to exercise his functions under this section—

(a) the President of the Court of Protection;

(b) a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).

Rights of appeal

53

(1) Subject to the provisions of this section, an appeal lies to the Court of Appeal from any decision of the court.

(2) 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.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Court of Protection Rules may make provision—

(a) that, in such cases as may be specified, an appeal from a decision of the court may not be made without permission;

(b) as to the person or persons entitled to grant permission to appeal;

(d) 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—

(i) the appeal would raise an important point of principle or practice, or

(ii) there is some other compelling reason for the Court of Appeal to hear it;

(e) as to any considerations to be taken into account in relation to granting or refusing permission to appeal.

Fees and costs

Fees

54

(1) The Lord Chancellor may with the consent of the Treasury by order prescribe fees payable in respect of anything dealt with by the court.

(2) An order under this section may in particular contain provision as to—

(a) scales or rates of fees;

(b) exemptions from and reductions in fees;

(3) Before making an order under this section, the Lord Chancellor must consult—

(a) the President of the Court of Protection,

(b) the Vice-President of the Court of Protection, and

(4) 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.

(5) Fees payable under this section are recoverable summarily as a civil debt.

Costs

55

(1) Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are in its discretion.

(2) 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.

(3) The court has full power to determine by whom and to what extent the costs are to be paid.

(4) The court may, in any proceedings—

(a) disallow, or

(b) order the legal or other representatives concerned to meet,

the whole of any wasted costs or such part of them as may be determined in accordance with the rules.

(5) “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.

(6) “Wasted costs” means any costs incurred by a party—

(a) 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

(b) 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.

Fees and costs: supplementary

56

(1) Court of Protection Rules may make provision—

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

(b) for charging fees and costs upon the estate of the person to whom the proceedings relate;

(c) 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.

(2) 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.

The Public Guardian

57

(1) For the purposes of this Act, there is to be an officer, to be known as the Public Guardian.

(2) The Public Guardian is to be appointed by the Lord Chancellor.

(3) There is to be paid to the Public Guardian out of money provided by Parliament such salary as the Lord Chancellor may determine.

(4) The Lord Chancellor may, after consulting the Public Guardian—

(a) provide him with such officers and staff, or

(b) enter into such contracts with other persons for the provision (by them or their sub-contractors) of officers, staff or services,

as the Lord Chancellor thinks necessary for the proper discharge of the Public Guardian's functions.

(5) Any functions of the Public Guardian may, to the extent authorised by him, be performed by any of his officers.

Functions of the Public Guardian

58

(1) The Public Guardian has the following functions—

(a) establishing and maintaining a register of lasting powers of attorney,

(b) establishing and maintaining a register of orders appointing deputies,

(d) directing a Court of Protection Visitor to visit—

(i) a donee of a lasting power of attorney,

(ii) a deputy appointed by the court, or

(iii) the person granting the power of attorney or for whom the deputy is appointed (“P”),

and to make a report to the Public Guardian on such matters as he may direct,

(e) receiving security which the court requires a person to give for the discharge of his functions,

(f) receiving reports from donees of lasting powers of attorney and deputies appointed by the court,

(g) reporting to the court on such matters relating to proceedings under this Act as the court requires,

(h) 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,

(i) publishing, in any manner the Public Guardian thinks appropriate, any information he thinks appropriate about the discharge of his functions.

(2) 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.

(2A) The Public Guardian also has the following functions—

(a) establishing and maintaining a register of guardianship orders,

(b) supervising guardians,

(d) receiving reports from guardians,

(e) reporting to the court on such matters relating to proceedings under the Guardianship (Missing Persons) Act 2017 as the court requires,

(f) dealing with representations (including complaints) about the way in which a guardian is exercising the guardian’s functions, and

(g) 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.

(3) The Lord Chancellor may by regulations make provision—

(a) conferring on the Public Guardian other functions in connection with this Act or the Guardianship (Missing Persons) Act 2017 ;

(b) in connection with the discharge by the Public Guardian of his functions.

(4) Regulations made under subsection (3)(b) may in particular make provision as to—

(a) the giving of security by deputies appointed by the court or guardians and the enforcement and discharge of security so given;

(b) the fees which may be charged by the Public Guardian;

(d) exemptions from and reductions in such fees;

(e) remission of such fees in whole or in part;

(f) 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.

(g) the making of reports to the Public Guardian by guardians.

(5) 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—

(a) any health record,

(b) any record of, or held by, a local authority and compiled in connection with a social services function, and

(c) 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,

so far as the record relates to P.

(6) The Public Guardian may also for that purpose interview P in private.

(7) In this section “guardian” and “guardianship order” have the same meaning as in the Guardianship (Missing Persons) Act 2017.

Public Guardian Board

59

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annual report

60

(1) The Public Guardian must make an annual report to the Lord Chancellor about the discharge of his functions.

(2) The Lord Chancellor must, within one month of receiving the report, lay a copy of it before Parliament.

Court of Protection Visitors

61

(1) A Court of Protection Visitor is a person who is appointed by the Lord Chancellor to—

(a) a panel of Special Visitors, or

(b) a panel of General Visitors.

(2) A person is not qualified to be a Special Visitor unless he—

(a) is a registered medical practitioner or appears to the Lord Chancellor to have other suitable qualifications or training, and

(b) 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.

(3) A General Visitor need not have a medical qualification.

(4) A Court of Protection Visitor—

(a) may be appointed for such term and subject to such conditions, and

(b) may be paid such remuneration and allowances,

as the Lord Chancellor may determine.

(5) 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—

(a) any health record,

(b) any record of, or held by, a local authority and compiled in connection with a social services function, and

(c) 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,

so far as the record relates to P.

(6) A Court of Protection Visitor may also for that purpose interview P in private.

Part 3 — Miscellaneous and general

Declaratory provision

Scope of the Act

62

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).

Private international law

International protection of adults

63

Schedule 3—

(a) 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

(b) makes related provision as to the private international law of England and Wales.

General

Interpretation

64

(1) In this Act—

“the 1985 Act” means the Enduring Powers of Attorney Act 1985 (c. 29),

“advance decision” has the meaning given in section 24(1),

“authorisation under Schedule A1”means either— a standard authorisation under that Schedule, oran urgent authorisation under that Schedule.

“the court” means the Court of Protection established by section 45,

“Court of Protection Rules” has the meaning given in section 51(1),

“Court of Protection Visitor” has the meaning given in section 61,

“deputy” has the meaning given in section 16(2)(b),

“enactment” includes a provision of subordinate legislation (within the meaning of the Interpretation Act 1978 (c. 30)),

“health record” has the same meaning as in the Data Protection Act 2018 (see section 205 of that Act);

“the Human Rights Convention” has the same meaning as “the Convention” in the Human Rights Act 1998 (c. 42),

“independent mental capacity advocate” has the meaning given in section 35(1),

“lasting power of attorney” has the meaning given in section 9,

“life-sustaining treatment” has the meaning given in section 4(10),

“local authority” , except in section 35(6A)(a) and Schedule A1, means—the council of a county in England in which there are no district councils,the council of a district in England,the council of a county or county borough in Wales,the council of a London borough,the Common Council of the City of London, orthe Council of the Isles of Scilly,

“Mental Health Act” means the Mental Health Act 1983 (c. 20),

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

“property” includes any thing in action and any interest in real or personal property,

“public authority” has the same meaning as in the Human Rights Act 1998,

“Public Guardian” has the meaning given in section 57,

“purchaser” and “purchase” have the meaning given in section 205(1) of the Law of Property Act 1925 (c. 20),

“social services function”—in relation to England has the meaning given in section 1A of the Local Authority Social Services Act 1970 (c. 42),in relation to Wales, has the meaning given in section 143 of the Social Services and Well-being (Wales) Act 2014 (anaw 4).

“treatment” includes a diagnostic or other procedure,

“trust corporation” has the meaning given in section 68(1) of the Trustee Act 1925 (c. 19), and

“will” includes codicil.

(2) 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.

(3) 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.

(3A) 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.

(4) “Bankruptcy restrictions order” includes an interim bankruptcy restrictions order.

(4A) “Debt relief restrictions order” includes an interim debt relief restrictions order.

(5) 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.

(6) For the purposes of such references, it does not matter whether a person is deprived of his liberty by a public authority or not.

Rules, regulations and orders

65

(1) Any power to make rules, regulations or orders under this Act , other than the power in section 21—

(a) is exercisable by statutory instrument;

(b) includes power to make supplementary, incidental, consequential, transitional or saving provision;

(2) Any statutory instrument containing rules, regulations or orders made by the Lord Chancellor or the Secretary of State under this Act, other than—

(a) regulations under section 34 (loss of capacity during research project),

(b) regulations under section 41 (adjusting role of independent mental capacity advocacy service),

(d) an order of the kind mentioned in section 67(6) (consequential amendments of primary legislation), or

(e) an order under section 68 (commencement),

is subject to annulment in pursuance of a resolution of either House of Parliament.

(2A) 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.

(3) 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.

(4) 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.

(4A) Subsection (2) does not apply to a statutory instrument containing regulations made by the Secretary of State under Schedule A1.

(4B) 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.

(4C) Subject to that, such a statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament.

(5) An order under section 21—

(a) may include supplementary, incidental, consequential, transitional or saving provision;

(b) may make different provision for different cases;

(c) 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

(d) is subject to annulment in pursuance of a resolution of either House of Parliament.

Existing receivers and enduring powers of attorney etc.

66

(1) The following provisions cease to have effect—

(a) Part 7 of the Mental Health Act,

(b) the Enduring Powers of Attorney Act 1985 (c. 29).

(2) No enduring power of attorney within the meaning of the 1985 Act is to be created after the commencement of subsection (1)(b).

(3) 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).

(4) Schedule 5 contains transitional provisions and savings in relation to Part 7 of the Mental Health Act and the 1985 Act.

Minor and consequential amendments and repeals

67

(1) Schedule 6 contains minor and consequential amendments.

(2) Schedule 7 contains repeals.

(3) 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.

(4) An order under subsection (3) may, in particular—

(a) 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;

(b) 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.

(5) 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.

(6) 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.

Commencement and extent

68

(1) This Act, other than sections 30 to 41, comes into force in accordance with provision made by order by the Lord Chancellor.

(2) Sections 30 to 41 come into force in accordance with provision made by order by—

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

(b) the National Assembly for Wales, in relation to Wales.

(3) An order under this section may appoint different days for different provisions and different purposes.

(4) Subject to subsections (5) and (6), this Act extends to England and Wales only.

(5) The following provisions extend to the United Kingdom—

(a) paragraph 16(1) of Schedule 1 (evidence of instruments and of registration of lasting powers of attorney),

(b) paragraph 15(3) of Schedule 4 (evidence of instruments and of registration of enduring powers of attorney).

(6) 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.

Short title

69

This Act may be cited as the Mental Capacity Act 2005.

SCHEDULE 1

Part 1 — Making instruments

General requirements as to making instruments

1

(1) An instrument is not made in accordance with this Schedule unless—

(a) it is in the prescribed form,

(b) it complies with paragraph 2, and

(2) Regulations may make different provision according to whether—

(a) the instrument relates to personal welfare or to property and affairs (or to both);

(b) only one or more than one donee is to be appointed (and if more than one, whether jointly or jointly and severally).

(3) In this Schedule—

(a) “prescribed” means prescribed by regulations, and

(b) “regulations” means regulations made for the purposes of this Schedule by the Lord Chancellor.

Requirements as to content of instruments

2

(1) The instrument must include—

(a) the prescribed information about the purpose of the instrument and the effect of a lasting power of attorney,

(b) a statement by the donor to the effect that he—

(i) has read the prescribed information or a prescribed part of it (or has had it read to him), and

(ii) intends the authority conferred under the instrument to include authority to make decisions on his behalf in circumstances where he no longer has capacity,

(i) naming a person or persons whom the donor wishes to be notified of any application for the registration of the instrument, or

(ii) stating that there are no persons whom he wishes to be notified of any such application,

(d) a statement by the donee (or, if more than one, each of them) to the effect that he—

(i) has read the prescribed information or a prescribed part of it (or has had it read to him), and

(ii) understands the duties imposed on a donee of a lasting power of attorney under sections 1 (the principles) and 4 (best interests), and

(e) a certificate by a person of a prescribed description that, in his opinion, at the time when the donor executes the instrument—

(i) the donor understands the purpose of the instrument and the scope of the authority conferred under it,

(ii) no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and

(iii) there is nothing else which would prevent a lasting power of attorney from being created by the instrument.

(2) Regulations may—

(a) prescribe a maximum number of named persons;

(b) provide that, where the instrument includes a statement under sub-paragraph (1)(c)(ii), two persons of a prescribed description must each give a certificate under sub-paragraph (1)(e).

(3) The persons who may be named persons do not include a person who is appointed as donee under the instrument.

(4) In this Schedule, “named person” means a person named under sub-paragraph (1)(c).

(5) A certificate under sub-paragraph (1)(e)—

(a) must be made in the prescribed form, and

(b) must include any prescribed information.

(6) The certificate may not be given by a person appointed as donee under the instrument.

Failure to comply with prescribed form

3

(1) 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.

(2) 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.

Part 2 — Registration

Applications and procedure for registration

4

(1) An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney—

(a) must be made in the prescribed form, and

(b) must include any prescribed information.

(2) The application may be made—

(a) by the donor,

(b) by the donee or donees, or

(c) if the instrument appoints two or more donees to act jointly and severally in respect of any matter, by any of the donees.

(3) The application must be accompanied by—

(a) the instrument, and

(b) any fee provided for under section 58(4)(b).

(4) 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—

(a) 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;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

5

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.

Notification requirements

6

(1) A donor about to make an application under paragraph 4(2)(a) must notify any named persons that he is about to do so.

(2) 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.

7

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.

8

(1) 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.

(2) As soon as is practicable after receiving an application by a donee under paragraph 4(2)(c), the Public Guardian must notify—

(a) the donor, and

(b) the donee or donees who did not join in making the application,

that the application has been received.

9

(1) A notice under paragraph 6 must be made in the prescribed form.

(2) A notice under paragraph 6, 7 or 8 must include such information, if any, as may be prescribed.

Power to dispense with notification requirements

10

The court may—

(a) on the application of the donor, dispense with the requirement to notify under paragraph 6(1), or

(b) on the application of the donee or donees concerned, dispense with the requirement to notify under paragraph 6(2),

if satisfied that no useful purpose would be served by giving the notice.

Instrument not made properly or containing ineffective provision

11

(1) If it appears to the Public Guardian that an instrument accompanying an application under paragraph 4 is not made in accordance with this Schedule, he must not register the instrument unless the court directs him to do so.

(2) Sub-paragraph (3) applies if it appears to the Public Guardian that the instrument contains a provision which—

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

(b) would prevent the instrument from operating as a valid lasting power of attorney.

(3) The Public Guardian—

(a) must apply to the court for it to determine the matter under section 23(1), and

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

(4) Sub-paragraph (5) applies if the court determines under section 23(1) (whether or not on an application by the Public Guardian) that the instrument contains a provision which—

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

(b) would prevent the instrument from operating as a valid lasting power of attorney.

(5) The court must—

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

(b) direct him not to register the instrument.

(6) Where the court notifies the Public Guardian that it has severed a provision, he must register the instrument with a note to that effect attached to it.

Deputy already appointed

12

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

(a) there is a deputy appointed by the court for the donor, and

(b) the powers conferred on the deputy would, if the instrument were registered, to any extent conflict with the powers conferred on the attorney.

(2) The Public Guardian must not register the instrument unless the court directs him to do so.

Objection by donee or named person

13

(1) Sub-paragraph (2) applies if a donee or a named person—

(a) receives a notice under paragraph 6, 7 or 8 of an application for the registration of an instrument, and

(b) before the end of the prescribed period, gives notice to the Public Guardian of an objection to the registration on the ground that an event mentioned in section 13(3) or (6)(a) to (d) has occurred which has revoked the instrument.

(2) If the Public Guardian is satisfied that the ground for making the objection is established, he must not register the instrument unless the court, on the application of the person applying for the registration—

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

(b) directs the Public Guardian to register the instrument.

(3) Sub-paragraph (4) applies if a donee or a named person—

(a) receives a notice under paragraph 6, 7 or 8 of an application for the registration of an instrument, and

(b) before the end of the prescribed period—

(i) makes an application to the court objecting to the registration on a prescribed ground, and

(ii) notifies the Public Guardian of the application.

(4) The Public Guardian must not register the instrument unless the court directs him to do so.

Objection by donor

14

(1) This paragraph applies if the donor—

(a) receives a notice under paragraph 8 of an application for the registration of an instrument, and

(b) before the end of the prescribed period, gives notice to the Public Guardian of an objection to the registration.

(2) 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—

(a) is satisfied that the donor lacks capacity to object to the registration, and

(b) directs the Public Guardian to register the instrument.

Notification of registration

15

Where an instrument is registered under this Schedule, the Public Guardian must give notice of the fact in the prescribed form to—

(a) the donor, and

(b) the donee or, if more than one, each of them.

Evidence of registration

16

(1) 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—

(a) the contents of the instrument, and

(b) the fact that it has been registered.

(2) Sub-paragraph (1) is without prejudice to—

(a) section 3 of the Powers of Attorney Act 1971 (c. 27) (proof by certified copy), and

(b) any other method of proof authorised by law.

Part 3 — Cancellation of registration and notification of severance

17

(1) 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—

(a) as a result of the donor's bankruptcyor a debt relief order (under Part 7A of the Insolvency Act 1986) having been made in respect of the donor, or

(b) on the occurrence of an event mentioned in section 13(6)(a) to (d).

(2) If the Public Guardian cancels the registration of an instrument he must notify—

(a) the donor, and

(b) the donee or, if more than one, each of them.

18

The court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if it—

(a) determines under section 22(2)(a) that a requirement for creating the power was not met,

(b) determines under section 22(2)(b) that the power has been revoked or has otherwise come to an end, or

19

(1) Sub-paragraph (2) applies if the court determines under section 23(1) that a lasting power of attorney contains a provision which—

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

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

(2) The court must—

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

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

20

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.

Part 4 — Records of alterations in registered powers

Partial revocation or suspension of power as a result of bankruptcy

21

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.

Termination of appointment of donee which does not revoke power

22

If in the case of a registered instrument it appears to the Public Guardian that an event has occurred—

(a) which has terminated the appointment of the donee, but

(b) which has not revoked the instrument,

the Public Guardian must attach to the instrument a note to that effect.

Replacement of donee

23

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.

Severance of ineffective provisions

24

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.

Notification of alterations

25

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).

SCHEDULE 2

Wills: general

1

Paragraphs 2 to 4 apply in relation to the execution of a will, by virtue of section 18, on behalf of P.

Provision that may be made in will

2

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.

Wills: requirements relating to execution

3

(1) 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.

(2) Any will executed in pursuance of the order or direction—

(a) must state that it is signed by P acting by the authorised person,

(b) must be signed by the authorised person with the name of P and his own name, in the presence of two or more witnesses present at the same time,

(d) must be sealed with the official seal of the court.

Wills: effect of execution

4

(1) This paragraph applies where a will is executed in accordance with paragraph 3.

(2) 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—

(a) section 9 of the 1837 Act (requirements as to signing and attestation) does not apply, and

(b) in the subsequent provisions of the 1837 Act any reference to execution in the manner required by the previous provisions is to be read as a reference to execution in accordance with paragraph 3.

(3) The will has the same effect for all purposes as if—

(a) P had had the capacity to make a valid will, and

(b) the will had been executed by him in the manner required by the 1837 Act.

(4) But sub-paragraph (3) does not have effect in relation to the will—

(a) in so far as it disposes of immovable property outside England and Wales, or

(b) in so far as it relates to any other property or matter if, when the will is executed—

(i) P is domiciled outside England and Wales, and

(ii) the condition in sub-paragraph (5) is met.

(5) 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.

Vesting orders ancillary to settlement etc.

5

(1) If provision is made by virtue of section 18 for—

(a) the settlement of any property of P, or

(b) the exercise of a power vested in him of appointing trustees or retiring from a trust,

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.

(2) 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).

Variation of settlements

6

(1) If a settlement has been made by virtue of section 18, the court may by order vary or revoke the settlement if—

(a) the settlement makes provision for its variation or revocation,

(b) the court is satisfied that a material fact was not disclosed when the settlement was made, or

(2) Any such order may give such consequential directions as the court thinks fit.

Vesting of stock in curator appointed outside England and Wales

7

(1) Sub-paragraph (2) applies if the court is satisfied—

(a) that under the law prevailing in a place outside England and Wales a person (“M”) has been appointed to exercise powers in respect of the property or affairs of P on the ground (however formulated) that P lacks capacity to make decisions with respect to the management and administration of his property and affairs, and

(b) that, having regard to the nature of the appointment and to the circumstances of the case, it is expedient that the court should exercise its powers under this paragraph.

(2) The court may direct—

(a) any stocks standing in the name of P, or

(b) the right to receive dividends from the stocks,

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.

(3) “Stocks” includes—

(a) shares, and

(b) any funds, annuity or security transferable in the books kept by any body corporate or unincorporated company or society or by an instrument of transfer either alone or accompanied by other formalities,

and “dividends” is to be construed accordingly.

Preservation of interests in property disposed of on behalf of person lacking capacity

8

(1) Sub-paragraphs (2) and (3) apply if—

(a) P's property has been disposed of by virtue of section 18,

(b) under P's will or intestacy, or by a gift perfected or nomination taking effect on his death, any other person would have taken an interest in the property but for the disposal, and

(2) The person takes the same interest, if and so far as circumstances allow, in the property representing the property disposed of.

(3) 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.

(4) The court may direct that, on a disposal of P's property—

(a) which is made by virtue of section 18, and

(b) which would apart from this paragraph result in the conversion of personal property into real 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.

(5) References in sub-paragraphs (1) to (4) to the disposal of property are to—

(a) the sale, exchange, charging of or other dealing (otherwise than by will) with property other than money;

(b) the removal of property from one place to another;

(d) the transfer of money from one account to another;

and references to property representing property disposed of are to be construed accordingly and as including the result of successive disposals.

(6) 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.

9

(1) Sub-paragraph (2) applies if the court has ordered or directed the expenditure of money—

(a) for carrying out permanent improvements on any of P's property, or

(b) otherwise for the permanent benefit of any of P's property.

(2) The court may order that—

(a) the whole of the money expended or to be expended, or

(b) any part of it,

is to be a charge on the property either without interest or with interest at a specified rate.

(3) An order under sub-paragraph (2) may provide for excluding or restricting the operation of paragraph 8(1) to (3).

(4) 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.

(5) No charge under sub-paragraph (2) may confer any right of sale or foreclosure during P's lifetime.

Powers as patron of benefice

10

(1) Any functions which P has as patron of a benefice may be discharged only by a person (“R”) appointed by the court.

(2) R must be an individual capable of appointment under section 8(1)(b) of the 1986 Measure (which provides for 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).

(3) The 1986 Measure applies to R as it applies to an individual appointed by the registered patron of the benefice under section 8(1)(b) or (3) of that Measure to discharge his functions as patron.

(4) “The 1986 Measure” means the Patronage (Benefices) Measure 1986 (No. 3).

SCHEDULE 3

Part 1 — Preliminary

Introduction

1

This Part applies for the purposes of this Schedule.

The Convention

2

(1) “Convention” means the Convention referred to in section 63.

(2) “Convention country” means a country in which the Convention is in force.

(3) A reference to an Article or Chapter is to an Article or Chapter of the Convention.

(4) An expression which appears in this Schedule and in the Convention is to be construed in accordance with the Convention.

Countries, territories and nationals

3

(1) “Country” includes a territory which has its own system of law.

(2) 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.

Adults with incapacity

4

(1) “Adult” means subject to sub-paragraph (2) a person who—

(a) as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests, and

(b) has reached 16.

(2) But “adult” does not include a child to whom ... the following applies—

(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children that was signed at The Hague on 19 October 1996;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Protective measures

5

(1) “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—

(a) the determination of incapacity and the institution of a protective regime,

(b) placing the adult under the protection of an appropriate authority,

(d) the designation and functions of a person having charge of the adult's person or property, or representing or otherwise helping him,

(e) placing the adult in a place where protection can be provided,

(f) administering, conserving or disposing of the adult's property,

(g) authorising a specific intervention for the protection of the person or property of the adult.

(2) 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.

Central Authority

6

(1) Any function under the Convention of a Central Authority is exercisable in England and Wales by the Lord Chancellor.

(2) A communication may be sent to the Central Authority in relation to England and Wales by sending it to the Lord Chancellor.

Part 2 — Jurisdiction of competent authority

Scope of jurisdiction

7

(1) The court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to—

(a) an adult habitually resident in England and Wales,

(b) an adult's property in England and Wales,

(d) an adult present in England and Wales, if a protective measure which is temporary and limited in its effect to England and Wales is proposed in relation to him.

(2) An adult present in England and Wales is to be treated for the purposes of this paragraph as habitually resident there if—

(a) his habitual residence cannot be ascertained,

(b) he is a refugee, or

8

(1) 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.

(2) This sub-paragraph applies in relation to an adult if—

(a) he is a British citizen,

(b) he has a closer connection with England and Wales than with Scotland or Northern Ireland, and

(3) 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.

Exercise of jurisdiction

9

(1) 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.

(2) 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).

(3) Article 12 also applies, so far as its provisions allow, in relation to the matter in so far as it involves the other country.

10

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.

Part 3 — Applicable law

Applicable law

11

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.

12

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.

Lasting powers of attorney, etc.

13

(1) 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—

(a) the law of England and Wales, or

(b) if he specifies in writing the law of a connected country for the purpose, that law.

(2) 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) the law of the other country, or

(b) if he specifies in writing the law of England and Wales for the purpose, that law.

(3) A country is connected, in relation to the donor, if it is a country—

(a) of which he is a national,

(b) in which he was habitually resident, or

(4) 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.

(5) The law applicable to the manner of the exercise of a lasting power is the law of the country where it is exercised.

(6) In this Part of this Schedule, “lasting power” means—

(a) a lasting power of attorney (see section 9),

(b) an enduring power of attorney within the meaning of Schedule 4, or

14

(1) 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.

(2) 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).

15

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.

Protection of third parties

16

(1) 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.

(2) The validity of the transaction may not be questioned in proceedings, nor may the third party be held liable, merely because—

(a) where the representative and third party are in England and Wales when entering into the transaction, sub-paragraph (3) applies;

(b) where they are in another country at that time, sub-paragraph (4) applies.

(3) This sub-paragraph applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Schedule, the law of a country other than England and Wales, and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under the law of that other country.

(4) This sub-paragraph applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Part of this Schedule, the law of England and Wales, and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under that law.

(5) This paragraph does not apply if the third party knew or ought to have known that the applicable law was—

(a) in a case within sub-paragraph (3), the law of the other country;

(b) in a case within sub-paragraph (4), the law of England and Wales.

Mandatory rules

17

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.

Public policy

18

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.

Part 4 — Recognition and enforcement

Recognition

19

(1) 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.

(2) 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).

(3) But the court may disapply this paragraph in relation to a measure if it thinks that—

(a) the case in which the measure was taken was not urgent,

(b) the adult was not given an opportunity to be heard, and

(4) It may also disapply this paragraph in relation to a measure if it thinks that—

(a) recognition of the measure would be manifestly contrary to public policy,

(b) the measure would be inconsistent with a mandatory provision of the law of England and Wales, or

(c) the measure is inconsistent with one subsequently taken, or recognised, in England and Wales in relation to the adult.

(5) 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.

20

(1) 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.

(2) No permission is required for an application to the court under this paragraph.

21

For the purposes of paragraphs 19 and 20, any finding of fact relied on when the measure was taken is conclusive.

Enforcement

22

(1) 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.

(2) The court must make the declaration if—

(a) the measure comes within sub-paragraph (1) or (2) of paragraph 19, and

(b) the paragraph is not disapplied in relation to it as a result of sub-paragraph (3), (4) or (5).

(3) 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.

Measures taken in relation to those aged under 16

23

(1) This paragraph applies where—

(a) provision giving effect to, or otherwise deriving from, the Convention in a country other than England and Wales applies in relation to a person who has not reached 16, and

(b) a measure is taken in relation to that person in reliance on that provision.

(2) 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.

Supplementary

24

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.

25

Court of Protection Rules may make provision about an application under paragraph 20 or 22.

Part 5 — Co-operation

Proposal for cross-border placement

26

(1) This paragraph applies where a public authority proposes to place an adult in an establishment in a Convention country other than England and Wales.

(2) The public authority must consult an appropriate authority in that other country about the proposed placement and, for that purpose, must send it—

(a) a report on the adult, and

(b) a statement of its reasons for the proposed placement.

(3) If the appropriate authority in the other country opposes the proposed placement within a reasonable time, the public authority may not proceed with it.

27

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.

Adult in danger etc.

28

(1) This paragraph applies if a public authority is told that an adult—

(a) who is in serious danger, and

(b) in relation to whom the public authority has taken, or is considering taking, protective measures,

is, or has become resident, in a Convention country other than England and Wales.

(2) The public authority must tell an appropriate authority in that other country about—

(a) the danger, and

(b) the measures taken or under consideration.

29

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—

(a) would be likely to endanger the adult or his property, or

(b) would amount to a serious threat to the liberty or life of a member of the adult's family.

Part 6 — General

Certificates

30

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.

Powers to make further provision as to private international law

31

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.

32

(1) Regulations may make provision—

(a) giving further effect to the Convention, or

(b) otherwise about the private international law of England and Wales in relation to the protection of adults.

(2) The regulations may—

(a) confer functions on the court or another public authority;

(b) amend this Schedule;

(d) make provision about countries other than Convention countries.

Exceptions

33

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.

Regulations and orders

34

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.

Commencement

35

The following provisions of this Schedule have effect only if the Convention is in force in accordance with Article 57—

(a) paragraph 8,

(b) paragraph 9,

(d) Part 5,

(e) paragraph 30.

SCHEDULE 4

Part 1 — Enduring powers of attorney

Enduring power of attorney to survive mental incapacity of donor

1

(1) Where an individual has created a power of attorney which is an enduring power within the meaning of this Schedule—

(a) the power is not revoked by any subsequent mental incapacity of his,

(b) upon such incapacity supervening, the donee of the power may not do anything under the authority of the power except as provided by sub-paragraph (2) unless or until the instrument creating the power is registered under paragraph 13, and

(c) if and so long as paragraph (b) operates to suspend the donee's authority to act under the power, section 5 of the Powers of Attorney Act 1971 (c. 27) (protection of donee and third persons), so far as applicable, applies as if the power had been revoked by the donor's mental incapacity,

and, accordingly, section 1 of this Act does not apply.

(2) 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—

(a) to maintain the donor or prevent loss to his estate, or

(b) to maintain himself or other persons in so far as paragraph 3(2) permits him to do so.

(3) 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).

Characteristics of an enduring power of attorney

2

(1) 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—

(a) is in the prescribed form,

(b) was executed in the prescribed manner by the donor and the attorney, and

(2) In this paragraph, “prescribed” means prescribed by such of the following regulations as applied when the instrument was executed—

(a) the Enduring Powers of Attorney (Prescribed Form) Regulations 1986 (S.I. 1986/126),

(b) the Enduring Powers of Attorney (Prescribed Form) Regulations 1987 (S.I. 1987/1612),

(d) the Enduring Powers of Attorney (Welsh Language Prescribed Form) Regulations 2000 (S.I. 2000/289).

(3) 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.

(4) 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.

(5) A power of attorney cannot be an enduring power unless, when he executes the instrument creating it, the attorney is—

(a) an individual who has reached 18 and is not bankruptor is not subject to a debt relief order (under Part 7A of the Insolvency Act 1986), or

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