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

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Reform history JSON API

(b) a trust corporation.

(6) A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power.

(7) An enduring power is revoked by the bankruptcy of the donor or attorneyor the making of a debt relief order (under Part 7A of the Insolvency Act 1986) in respect of the donor or attorney.

(8) But where the donor or attorney is bankrupt merely because an interim bankruptcy restrictions order has effect in respect of himor where the donor or attorney is subject to an interim debt relief restrictions order, the power is suspended for so long as the order has effect.

(9) An enduring power is revoked if the court—

(a) exercises a power under sections 16 to 20 in relation to the donor, and

(b) directs that the enduring power is to be revoked.

(10) No disclaimer of an enduring power, whether by deed or otherwise, is valid unless and until the attorney gives notice of it to the donor or, where paragraph 4(6) or 15(1) applies, to the Public Guardian.

Scope of authority etc. of attorney under enduring power

3

(1) If the instrument which creates an enduring power of attorney is expressed to confer general authority on the attorney, the instrument operates to confer, subject to—

(a) the restriction imposed by sub-paragraph (3), and

(b) any conditions or restrictions contained in the instrument,

authority to do on behalf of the donor anything which the donor could lawfully do by an attorney at the time when the donor executed the instrument.

(2) Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) act under the power so as to benefit himself or other persons than the donor to the following extent but no further—

(a) he may so act in relation to himself or in relation to any other person if the donor might be expected to provide for his or that person's needs respectively, and

(b) he may do whatever the donor might be expected to do to meet those needs.

(3) Without prejudice to sub-paragraph (2) but subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) dispose of the property of the donor by way of gift to the following extent but no further—

(a) he may make gifts of a seasonal nature or at a time, or on an anniversary, of a birth, a marriage or the formation of a civil partnership, to persons (including himself) who are related to or connected with the donor, and

(b) he may make gifts to any charity to whom the donor made or might be expected to make gifts,

provided that the value of each such gift is not unreasonable having regard to all the circumstances and in particular the size of the donor's estate.

Part 2 — Action on actual or impending incapacity of donor

Duties of attorney in event of actual or impending incapacity of donor

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(1) Sub-paragraphs (2) to (6) apply if the attorney under an enduring power has reason to believe that the donor is or is becoming mentally incapable.

(2) The attorney must, as soon as practicable, make an application to the Public Guardian for the registration of the instrument creating the power.

(3) Before making an application for registration the attorney must comply with the provisions as to notice set out in Part 3 of this Schedule.

(4) An application for registration—

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

(b) must contain such statements as may be prescribed.

(5) The attorney—

(a) may, before making an application for the registration of the instrument, refer to the court for its determination any question as to the validity of the power, and

(b) must comply with any direction given to him by the court on that determination.

(6) No disclaimer of the power is valid unless and until the attorney gives notice of it to the Public Guardian; and the Public Guardian must notify the donor if he receives a notice under this sub-paragraph.

(7) 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 12 months 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.

(8) In this paragraph, “prescribed” means prescribed by regulations made for the purposes of this Schedule by the Lord Chancellor.

Part 3 — Notification prior to registration

Duty to give notice to relatives

5

Subject to paragraph 7, before making an application for registration the attorney must give notice of his intention to do so to all those persons (if any) who are entitled to receive notice by virtue of paragraph 6.

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(1) Subject to sub-paragraphs (2) to (4), persons of the following classes (“relatives”) are entitled to receive notice under paragraph 5—

(a) the donor's spouse or civil partner,

(b) the donor's children,

(d) the donor's brothers and sisters, whether of the whole or half blood,

(e) the widow, widower or surviving civil partner of a child of the donor,

(f) the donor's grandchildren,

(g) the children of the donor's brothers and sisters of the whole blood,

(h) the children of the donor's brothers and sisters of the half blood,

(i) the donor's uncles and aunts of the whole blood,

(j) the children of the donor's uncles and aunts of the whole blood.

(2) A person is not entitled to receive notice under paragraph 5 if—

(a) his name or address is not known to the attorney and cannot be reasonably ascertained by him, or

(b) the attorney has reason to believe that he has not reached 18 or is mentally incapable.

(3) Except where sub-paragraph (4) applies—

(a) no more than 3 persons are entitled to receive notice under paragraph 5, and

(b) in determining the persons who are so entitled, persons falling within the class in sub-paragraph (1)(a) are to be preferred to persons falling within the class in sub-paragraph (1)(b), those falling within the class in sub-paragraph (1)(b) are to be preferred to those falling within the class in sub-paragraph (1)(c), and so on.

(4) Despite the limit of 3 specified in sub-paragraph (3), where—

(a) there is more than one person falling within any of classes (a) to (j) of sub-paragraph (1), and

(b) at least one of those persons would be entitled to receive notice under paragraph 5,

then, subject to sub-paragraph (2), all the persons falling within that class are entitled to receive notice under paragraph 5.

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(1) An attorney is not required to give notice under paragraph 5—

(a) to himself, or

(b) to any other attorney under the power who is joining in making the application,

even though he or, as the case may be, the other attorney is entitled to receive notice by virtue of paragraph 6.

(2) In the case of any person who is entitled to receive notice by virtue of paragraph 6, the attorney, before applying for registration, may make an application to the court to be dispensed from the requirement to give him notice; and the court must grant the application if it is satisfied—

(a) that it would be undesirable or impracticable for the attorney to give him notice, or

(b) that no useful purpose is likely to be served by giving him notice.

Duty to give notice to donor

8

(1) Subject to sub-paragraph (2), before making an application for registration the attorney must give notice of his intention to do so to the donor.

(2) Paragraph 7(2) applies in relation to the donor as it applies in relation to a person who is entitled to receive notice under paragraph 5.

Contents of notices

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A notice to relatives under this Part of this Schedule must—

(a) be in the prescribed form,

(b) state that the attorney proposes to make an application to the Public Guardian for the registration of the instrument creating the enduring power in question,

(d) specify, as the grounds on which an objection to registration may be made, the grounds set out in paragraph 13(9).

10

A notice to the donor under this Part of this Schedule—

(a) must be in the prescribed form,

(b) must contain the statement mentioned in paragraph 9(b), and

(c) must inform the donor that, while the instrument remains registered, any revocation of the power by him will be ineffective unless and until the revocation is confirmed by the court.

Duty to give notice to other attorneys

11

(1) Subject to sub-paragraph (2), before making an application for registration an attorney under a joint and several power must give notice of his intention to do so to any other attorney under the power who is not joining in making the application; and paragraphs 7(2) and 9 apply in relation to attorneys entitled to receive notice by virtue of this paragraph as they apply in relation to persons entitled to receive notice by virtue of paragraph 6.

(2) An attorney is not entitled to receive notice by virtue of this paragraph if—

(a) his address is not known to the applying attorney and cannot reasonably be ascertained by him, or

(b) the applying attorney has reason to believe that he has not reached 18 or is mentally incapable.

Supplementary

12

Despite section 7 of the Interpretation Act 1978 (c. 30) (construction of references to service by post), for the purposes of this Part of this Schedule a notice given by post is to be regarded as given on the date on which it was posted.

Part 4 — Registration

Registration of instrument creating power

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(1) If an application is made in accordance with paragraph 4(3) and (4) the Public Guardian must, subject to the provisions of this paragraph, register the instrument to which the application relates.

(2) If it appears to the Public Guardian that—

(a) there is a deputy appointed for the donor of the power created by the instrument, 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,

the Public Guardian must not register the instrument except in accordance with the court's directions.

(3) The court may, on the application of the attorney, direct the Public Guardian to register an instrument even though notice has not been given as required by paragraph 4(3) and Part 3 of this Schedule to a person entitled to receive it, if the court is satisfied—

(a) that it was undesirable or impracticable for the attorney to give notice to that person, or

(b) that no useful purpose is likely to be served by giving him notice.

(4) Sub-paragraph (5) applies if, before the end of the period of 5 weeks beginning with the date (or the latest date) on which the attorney gave notice under paragraph 5 of an application for registration, the Public Guardian receives a valid notice of objection to the registration from a person entitled to notice of the application.

(5) The Public Guardian must not register the instrument except in accordance with the court's directions.

(6) Sub-paragraph (7) applies if, in the case of an application for registration—

(a) it appears from the application that there is no one to whom notice has been given under paragraph 5, or

(b) the Public Guardian has reason to believe that appropriate inquiries might bring to light evidence on which he could be satisfied that one of the grounds of objection set out in sub-paragraph (9) was established.

(7) The Public Guardian—

(a) must not register the instrument, and

(b) must undertake such inquiries as he thinks appropriate in all the circumstances.

(8) If, having complied with sub-paragraph (7)(b), the Public Guardian is satisfied that one of the grounds of objection set out in sub-paragraph (9) is established—

(a) the attorney may apply to the court for directions, and

(b) the Public Guardian must not register the instrument except in accordance with the court's directions.

(9) A notice of objection under this paragraph is valid if made on one or more of the following grounds—

(a) that the power purported to have been created by the instrument was not valid as an enduring power of attorney,

(b) that the power created by the instrument no longer subsists,

(d) that fraud or undue pressure was used to induce the donor to create the power,

(e) that, having regard to all the circumstances and in particular the attorney's relationship to or connection with the donor, the attorney is unsuitable to be the donor's attorney.

(10) If any of those grounds is established to the satisfaction of the court it must direct the Public Guardian not to register the instrument, but if not so satisfied it must direct its registration.

(11) If the court directs the Public Guardian not to register an instrument because it is satisfied that the ground in sub-paragraph (9)(d) or (e) is established, it must by order revoke the power created by the instrument.

(12) If the court directs the Public Guardian not to register an instrument because it is satisfied that any ground in sub-paragraph (9) except that in paragraph (c) is established, the instrument must be delivered up to be cancelled unless the court otherwise directs.

Register of enduring powers

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The Public Guardian has the function of establishing and maintaining a register of enduring powers for the purposes of this Schedule.

Part 5 — Legal position after registration

Effect and proof of registration

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(1) The effect of the registration of an instrument under paragraph 13 is that—

(a) no revocation of the power by the donor is valid unless and until the court confirms the revocation under paragraph 16(3);

(b) no disclaimer of the power is valid unless and until the attorney gives notice of it to the Public Guardian;

(c) the donor may not extend or restrict the scope of the authority conferred by the instrument and no instruction or consent given by him after registration, in the case of a consent, confers any right and, in the case of an instruction, imposes or confers any obligation or right on or creates any liability of the attorney or other persons having notice of the instruction or consent.

(2) Sub-paragraph (1) applies for so long as the instrument is registered under paragraph 13 whether or not the donor is for the time being mentally incapable.

(3) 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 so registered.

(4) Sub-paragraph (3) is without prejudice to section 3 of the Powers of Attorney Act 1971 (c. 27) (proof by certified copies) and to any other method of proof authorised by law.

Functions of court with regard to registered power

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(1) Where an instrument has been registered under paragraph 13, the court has the following functions with respect to the power and the donor of and the attorney appointed to act under the power.

(2) The court may—

(a) determine any question as to the meaning or effect of the instrument;

(b) give directions with respect to—

(i) the management or disposal by the attorney of the property and affairs of the donor;

(ii) the rendering of accounts by the attorney and the production of the records kept by him for the purpose;

(iii) the remuneration or expenses of the attorney whether or not in default of or in accordance with any provision made by the instrument, including directions for the repayment of excessive or the payment of additional remuneration;

(d) give any consent or authorisation to act which the attorney would have to obtain from a mentally capable donor;

(e) authorise the attorney to act so as to benefit himself or other persons than the donor otherwise than in accordance with paragraph 3(2) and (3) (but subject to any conditions or restrictions contained in the instrument);

(f) relieve the attorney wholly or partly from any liability which he has or may have incurred on account of a breach of his duties as attorney.

(3) On application made for the purpose by or on behalf of the donor, the court must confirm the revocation of the power if satisfied that the donor—

(a) has done whatever is necessary in law to effect an express revocation of the power, and

(b) was mentally capable of revoking a power of attorney when he did so (whether or not he is so when the court considers the application).

(4) The court must direct the Public Guardian to cancel the registration of an instrument registered under paragraph 13 in any of the following circumstances—

(a) on confirming the revocation of the power under sub-paragraph (3),

(b) on directing under paragraph 2(9)(b) that the power is to be revoked,

(d) on being satisfied that the power has expired or has been revoked by the mental incapacity of the attorney,

(e) on being satisfied that the power was not a valid and subsisting enduring power when registration was effected,

(f) on being satisfied that fraud or undue pressure was used to induce the donor to create the power,

(g) on being satisfied that, having regard to all the circumstances and in particular the attorney's relationship to or connection with the donor, the attorney is unsuitable to be the donor's attorney.

(5) If the court directs the Public Guardian to cancel the registration of an instrument on being satisfied of the matters specified in sub-paragraph (4)(f) or (g) it must by order revoke the power created by the instrument.

(6) If the court directs the cancellation of the registration of an instrument under sub-paragraph (4) except paragraph (c) the instrument must be delivered up to the Public Guardian to be cancelled, unless the court otherwise directs.

Cancellation of registration by Public Guardian

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The Public Guardian must cancel the registration of an instrument creating an enduring power of attorney—

(a) on receipt of a disclaimer signed by the attorney;

(b) if satisfied that the power has been revoked by the death or bankruptcy of the donor or attorneyor the making of a debt relief order (under Part 7A of the Insolvency Act 1986) in respect of the donor or attorney or, if the attorney is a body corporate, by its winding up or dissolution;

(d) on confirmation from the court that the donor has revoked the power.

Part 6 — Protection of attorney and third parties

Protection of attorney and third persons where power is invalid or revoked

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(1) Sub-paragraphs (2) and (3) apply where an instrument which did not create a valid power of attorney has been registered under paragraph 13 (whether or not the registration has been cancelled at the time of the act or transaction in question).

(2) An attorney who acts in pursuance of the power does not incur any liability (either to the donor or to any other person) because of the non-existence of the power unless at the time of acting he knows—

(a) that the instrument did not create a valid enduring power,

(b) that an event has occurred which, if the instrument had created a valid enduring power, would have had the effect of revoking the power, or

(3) Any transaction between the attorney and another person is, in favour of that person, as valid as if the power had then been in existence, unless at the time of the transaction that person has knowledge of any of the matters mentioned in sub-paragraph (2).

(4) If the interest of a purchaser depends on whether a transaction between the attorney and another person was valid by virtue of sub-paragraph (3), it is conclusively presumed in favour of the purchaser that the transaction was valid if—

(a) the transaction between that person and the attorney was completed within 12 months of the date on which the instrument was registered, or

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

(5) For the purposes of section 5 of the Powers of Attorney Act 1971 (c. 27) (protection where power is revoked) in its application to an enduring power the revocation of which by the donor is by virtue of paragraph 15 invalid unless and until confirmed by the court under paragraph 16—

(a) knowledge of the confirmation of the revocation is knowledge of the revocation of the power, but

(b) knowledge of the unconfirmed revocation is not.

Further protection of attorney and third persons

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(1) If—

(a) an instrument framed in a form prescribed as mentioned in paragraph 2(2) creates a power which is not a valid enduring power, and

(b) the power is revoked by the mental incapacity of the donor,

sub-paragraphs (2) and (3) apply, whether or not the instrument has been registered.

(2) An attorney who acts in pursuance of the power does not, by reason of the revocation, incur any liability (either to the donor or to any other person) unless at the time of acting he knows—

(a) that the instrument did not create a valid enduring power, and

(b) that the donor has become mentally incapable.

(3) Any transaction between the attorney and another person is, in favour of that person, as valid as if the power had then been in existence, unless at the time of the transaction that person knows—

(a) that the instrument did not create a valid enduring power, and

(b) that the donor has become mentally incapable.

(4) Paragraph 18(4) applies for the purpose of determining whether a transaction was valid by virtue of sub-paragraph (3) as it applies for the purpose or determining whether a transaction was valid by virtue of paragraph 18(3).

Part 7 — Joint and joint and several attorneys

Application to joint and joint and several attorneys

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(1) An instrument which appoints more than one person to be an attorney cannot create an enduring power unless the attorneys are appointed to act—

(a) jointly, or

(b) jointly and severally.

(2) This Schedule, in its application to joint attorneys, applies to them collectively as it applies to a single attorney but subject to the modifications specified in paragraph 21.

(3) This Schedule, in its application to joint and several attorneys, applies with the modifications specified in sub-paragraphs (4) to (7) and in paragraph 22.

(4) A failure, as respects any one attorney, to comply with the requirements for the creation of enduring powers—

(a) prevents the instrument from creating such a power in his case, but

(b) does not affect its efficacy for that purpose as respects the other or others or its efficacy in his case for the purpose of creating a power of attorney which is not an enduring power.

(5) If one or more but not both or all the attorneys makes or joins in making an application for registration of the instrument—

(a) an attorney who is not an applicant as well as one who is may act pending the registration of the instrument as provided in paragraph 1(2),

(b) notice of the application must also be given under Part 3 of this Schedule to the other attorney or attorneys, and

(c) objection may validly be taken to the registration on a ground relating to an attorney or to the power of an attorney who is not an applicant as well as to one or the power of one who is an applicant.

(6) The Public Guardian is not precluded by paragraph 13(5) or (8) from registering an instrument and the court must not direct him not to do so under paragraph 13(10) if an enduring power subsists as respects some attorney who is not affected by the ground or grounds of the objection in question; and where the Public Guardian registers an instrument in that case, he must make against the registration an entry in the prescribed form.

(7) Sub-paragraph (6) does not preclude the court from revoking a power in so far as it confers a power on any other attorney in respect of whom the ground in paragraph 13(9)(d) or (e) is established; and where any ground in paragraph 13(9) affecting any other attorney is established the court must direct the Public Guardian to make against the registration an entry in the prescribed form.

(8) In sub-paragraph (4), “the requirements for the creation of enduring powers” means the provisions of—

(a) paragraph 2 other than sub-paragraphs (8) and (9), and

(b) the regulations mentioned in paragraph 2.

Joint attorneys

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(1) In paragraph 2(5), the reference to the time when the attorney executes the instrument is to be read as a reference to the time when the second or last attorney executes the instrument.

(2) In paragraph 2(6) to (8), the reference to the attorney is to be read as a reference to any attorney under the power.

(3) Paragraph 13 has effect as if the ground of objection to the registration of the instrument specified in sub-paragraph (9)(e) applied to any attorney under the power.

(4) In paragraph 16(2), references to the attorney are to be read as including references to any attorney under the power.

(5) In paragraph 16(4), references to the attorney are to be read as including references to any attorney under the power.

(6) In paragraph 17, references to the attorney are to be read as including references to any attorney under the power.

Joint and several attorneys

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(1) In paragraph 2(7), the reference to the bankruptcy of the attorney is to be read as a reference to the bankruptcy of the last remaining attorney under the power; and the bankruptcy of any other attorney under the power causes that person to cease to be an attorney under the power.

(1A) In paragraph 2(7), the reference to the making of a debt relief order (under Part 7A of the Insolvency Act 1986) in respect of the attorney is to be read as a reference to the making of a debt relief order in respect of the last remaining attorney under the power; and the making of a debt relief order in respect of any other attorney under the power causes that person to cease to be an attorney under the power.

(2) In paragraph 2(8), the reference to the suspension of the power is to be read as a reference to its suspension in so far as it relates to the attorney in respect of whom the interim bankruptcy restrictions order has effect.

(2A) In paragraph 2(8), the reference to the suspension of the power is to be read as a reference to its suspension in so far as it relates to the attorney in respect of whom the interim debt relief restrictions order has effect.

(3) The restriction upon disclaimer imposed by paragraph 4(6) applies only to those attorneys who have reason to believe that the donor is or is becoming mentally incapable.

Part 8 — Interpretation

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(1) In this Schedule—

“enduring power” is to be construed in accordance with paragraph 2,

“mentally incapable” or “mental incapacity”, except where it refers to revocation at common law, means in relation to any person, that he is incapable by reason of mental disorder ... of managing and administering his property and affairs and “mentally capable” and “mental capacity” are to be construed accordingly,

“notice” means notice in writing, and

“prescribed”, except for the purposes of paragraph 2, means prescribed by regulations made for the purposes of this Schedule by the Lord Chancellor.

(1A) In sub-paragraph (1), “mental disorder” has the same meaning as in the Mental Health Act but disregarding the amendments made to that Act by the Mental Health Act 2007.

(2) Any question arising under or for the purposes of this Schedule as to what the donor of the power might at any time be expected to do is to be determined by assuming that he had full mental capacity at the time but otherwise by reference to the circumstances existing at that time.

SCHEDULE 5

Part 1 — Repeal of Part 7 of the Mental Health Act 1983

Existing receivers

1

(1) This paragraph applies where, immediately before the commencement day, there is a receiver (“R”) for a person (“P”) appointed under section 99 of the Mental Health Act.

(2) On and after that day—

(a) this Act applies as if R were a deputy appointed for P by the court, but with the functions that R had as receiver immediately before that day, and

(b) a reference in any other enactment to a deputy appointed by the court includes a person appointed as a deputy as a result of paragraph (a).

(3) On any application to it by R, the court may end R's appointment as P's deputy.

(4) Where, as a result of section 20(1), R may not make a decision on behalf of P in relation to a relevant matter, R must apply to the court.

(5) If, on the application, the court is satisfied that P is capable of managing his property and affairs in relation to the relevant matter—

(a) it must make an order ending R's appointment as P's deputy in relation to that matter, but

(b) it may, in relation to any other matter, exercise in relation to P any of the powers which it has under sections 15 to 19.

(6) If it is not satisfied, the court may exercise in relation to P any of the powers which it has under sections 15 to 19.

(7) R's appointment as P's deputy ceases to have effect if P dies.

(8) “Relevant matter” means a matter in relation to which, immediately before the commencement day, R was authorised to act as P's receiver.

(9) In sub-paragraph (1), the reference to a receiver appointed under section 99 of the Mental Health Act includes a reference to a person who by virtue of Schedule 5 to that Act was deemed to be a receiver appointed under that section.

Orders, appointments etc.

2

(1) Any order or appointment made, direction or authority given or other thing done which has, or by virtue of Schedule 5 to the Mental Health Act was deemed to have, effect under Part 7 of the Act immediately before the commencement day is to continue to have effect despite the repeal of Part 7.

(2) In so far as any such order, appointment, direction, authority or thing could have been made, given or done under sections 15 to 20 if those sections had then been in force—

(a) it is to be treated as made, given or done under those sections, and

(b) the powers of variation and discharge conferred by section 16(7) apply accordingly.

(3) Sub-paragraph (1)—

(a) does not apply to nominations under section 93(1) or (4) of the Mental Health Act, and

(b) as respects receivers, has effect subject to paragraph 1.

(4) This Act does not affect the operation of section 109 of the Mental Health Act (effect and proof of orders etc.) in relation to orders made and directions given under Part 7 of that Act.

(5) This paragraph is without prejudice to section 16 of the Interpretation Act 1978 (c. 30) (general savings on repeal).

Pending proceedings

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(1) Any application for the exercise of a power under Part 7 of the Mental Health Act which is pending immediately before the commencement day is to be treated, in so far as a corresponding power is exercisable under sections 16 to 20, as an application for the exercise of that power.

(2) For the purposes of sub-paragraph (1) an application for the appointment of a receiver is to be treated as an application for the appointment of a deputy.

Appeals

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(1) Part 7 of the Mental Health Act and the rules made under it are to continue to apply to any appeal brought by virtue of section 105 of that Act which has not been determined before the commencement day.

(2) If in the case of an appeal brought by virtue of section 105(1) (appeal to nominated judge) the judge nominated under section 93 of the Mental Health Act has begun to hear the appeal, he is to continue to do so but otherwise it is to be heard by a puisne judge of the High Court nominated under section 46.

Fees

5

All fees and other payments which, having become due, have not been paid to the former Court of Protection before the commencement day, are to be paid to the new Court of Protection.

Court records

6

(1) The records of the former Court of Protection are to be treated, on and after the commencement day, as records of the new Court of Protection and are to be dealt with accordingly under the Public Records Act 1958 (c. 51).

(2) On and after the commencement day, the Public Guardian is, for the purpose of exercising any of his functions, to be given such access as he may require to such of the records mentioned in sub-paragraph (1) as relate to the appointment of receivers under section 99 of the Mental Health Act.

Existing charges

7

This Act does not affect the operation in relation to a charge created before the commencement day of—

(a) so much of section 101(6) of the Mental Health Act as precludes a charge created under section 101(5) from conferring a right of sale or foreclosure during the lifetime of the patient, or

(b) section 106(6) of the Mental Health Act (charge created by virtue of section 106(5) not to cause interest to fail etc.).

Preservation of interests on disposal of property

8

Paragraph 8(1) of Schedule 2 applies in relation to any disposal of property (within the meaning of that provision) by a person living on 1st November 1960, being a disposal effected under the Lunacy Act 1890 (c. 5) as it applies in relation to the disposal of property effected under sections 16 to 20.

Accounts

9

Court of Protection Rules may provide that, in a case where paragraph 1 applies, R is to have a duty to render accounts—

(a) while he is receiver;

(b) after he is discharged.

Interpretation

10

In this Part of this Schedule—

(a) “the commencement day” means the day on which section 66(1)(a) (repeal of Part 7 of the Mental Health Act) comes into force,

(b) “the former Court of Protection” means the office abolished by section 45, and

Part 2 — Repeal of the Enduring Powers of Attorney Act 1985

Orders, determinations, etc.

11

(1) Any order or determination made, or other thing done, under the 1985 Act which has effect immediately before the commencement day continues to have effect despite the repeal of that Act.

(2) In so far as any such order, determination or thing could have been made or done under Schedule 4 if it had then been in force—

(a) it is to be treated as made or done under that Schedule, and

(b) the powers of variation and discharge exercisable by the court apply accordingly.

(3) Any instrument registered under the 1985 Act is to be treated as having been registered by the Public Guardian under Schedule 4.

(4) This paragraph is without prejudice to section 16 of the Interpretation Act 1978 (c. 30) (general savings on repeal).

Pending proceedings

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(1) An application for the exercise of a power under the 1985 Act which is pending immediately before the commencement day is to be treated, in so far as a corresponding power is exercisable under Schedule 4, as an application for the exercise of that power.

(2) For the purposes of sub-paragraph (1)—

(a) a pending application under section 4(2) of the 1985 Act for the registration of an instrument is to be treated as an application to the Public Guardian under paragraph 4 of Schedule 4 and any notice given in connection with that application under Schedule 1 to the 1985 Act is to be treated as given under Part 3 of Schedule 4,

(b) a notice of objection to the registration of an instrument is to be treated as a notice of objection under paragraph 13 of Schedule 4, and

(c) pending proceedings under section 5 of the 1985 Act are to be treated as proceedings on an application for the exercise by the court of a power which would become exercisable in relation to an instrument under paragraph 16(2) of Schedule 4 on its registration.

Appeals

13

(1) The 1985 Act and, so far as relevant, the provisions of Part 7 of the Mental Health Act and the rules made under it as applied by section 10 of the 1985 Act are to continue to have effect in relation to any appeal brought by virtue of section 10(1)(c) of the 1985 Act which has not been determined before the commencement day.

(2) If, in the case of an appeal brought by virtue of section 105(1) of the Mental Health Act as applied by section 10(1)(c) of the 1985 Act (appeal to nominated judge), the judge nominated under section 93 of the Mental Health Act has begun to hear the appeal, he is to continue to do so but otherwise the appeal is to be heard by a puisne judge of the High Court nominated under section 46.

Exercise of powers of donor as trustee

14

(1) Section 2(8) of the 1985 Act (which prevents a power of attorney under section 25 of the Trustee Act 1925 (c. 19) as enacted from being an enduring power) is to continue to apply to any enduring power—

(a) created before 1st March 2000, and

(b) having effect immediately before the commencement day.

(2) Section 3(3) of the 1985 Act (which entitles the donee of an enduring power to exercise the donor's powers as trustee) is to continue to apply to any enduring power to which, as a result of the provision mentioned in sub-paragraph (3), it applies immediately before the commencement day.

(3) The provision is section 4(3)(a) of the Trustee Delegation Act 1999 (c. 15) (which provides for section 3(3) of the 1985 Act to cease to apply to an enduring power when its registration is cancelled, if it was registered in response to an application made before 1st March 2001).

(4) Even though section 4 of the 1999 Act is repealed by this Act, that section is to continue to apply in relation to an enduring power—

(a) to which section 3(3) of the 1985 Act applies as a result of sub-paragraph (2), or

(b) to which, immediately before the repeal of section 4 of the 1999 Act, section 1 of that Act applies as a result of section 4 of it.

(5) The reference in section 1(9) of the 1999 Act to section 4(6) of that Act is to be read with sub-paragraphs (2) to (4).

Interpretation

15

In this Part of this Schedule, “the commencement day” means the day on which section 66(1)(b) (repeal of the 1985 Act) comes into force.

SCHEDULE 6

Fines and Recoveries Act 1833 (c. 74)

1

(1) The Fines and Recoveries Act 1833 (c. 74) is amended as follows.

(2) In section 33 (case where protector of settlement lacks capacity to act), for the words from “shall be incapable” to “is incapable as aforesaid” substitute “ lacks capacity (within the meaning of the Mental Capacity Act 2005) to manage his property and affairs, the Court of Protection is to take his place as protector of the settlement while he lacks capacity ”.

(3) In sections 48 and 49 (mental health jurisdiction), for each reference to the judge having jurisdiction under Part 7 of the Mental Health Act substitute a reference to the Court of Protection.

Improvement of Land Act 1864 (c. 114)

2

In section 68 of the Improvement of Land Act 1864 (c. 114) (apportionment of rentcharges)—

(a) for “, curator, or receiver of” substitute “ or curator of, or a deputy with powers in relation to property and affairs appointed by the Court of Protection for, ”, and

(b) for “or patient within the meaning of Part VII of the Mental Health Act 1983” substitute “ person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to receive the notice ”.

Trustee Act 1925 (c. 19)

3

(1) The Trustee Act 1925 (c. 19) is amended as follows.

(2) In section 36 (appointment of new trustee)—

(a) in subsection (6C), for the words from “a power of attorney” to the end, substitute “ an enduring power of attorney or lasting power of attorney registered under the Mental Capacity Act 2005 ”, and

(b) in subsection (9)—

(i) for the words from “is incapable” to “exercising” substitute “ lacks capacity to exercise ”, and

(ii) for the words from “the authority” to the end substitute “ the Court of Protection ”.

(3) In section 41(1) (power of court to appoint new trustee) for the words from “is incapable” to “exercising” substitute “ lacks capacity to exercise ”.

(4) In section 54 (mental health jurisdiction)—

(a) for subsection (1) substitute—

(1) Subject to subsection (2), the Court of Protection may not make an order, or give a direction or authority, in relation to a person who lacks capacity to exercise his functions as trustee, if the High Court may make an order to that effect under this Act.

(b) in subsection (2)—

(i) for the words from the beginning to “of a receiver” substitute “ Where a person lacks capacity to exercise his functions as a trustee and a deputy is appointed for him by the Court of Protection or an application for the appointment of a deputy ”,

(ii) for “the said authority”, in each place, substitute “ the Court of Protection ”, and

(iii) for “the patient”, in each place, substitute “ the person concerned ”, and

(5) In section 55 (order made on particular allegation to be conclusive evidence of it)—

(a) for the words from “Part VII” to “Northern Ireland” substitute “ sections 15 to 20 of the Mental Capacity Act 2005 or any corresponding provisions having effect in Northern Ireland ”, and

(b) for paragraph (a) substitute—

(a) that a trustee or mortgagee lacks capacity in relation to the matter in question;

(6) In section 68 (definitions), at the end add—

(3) Any reference in this Act to a person who lacks capacity in relation to a matter is to a person— (a) who lacks capacity within the meaning of the Mental Capacity Act 2005 in relation to that matter, or (b) in respect of whom the powers conferred by section 48 of that Act are exercisable and have been exercised in relation to that matter.

Law of Property Act 1925 (c. 20)

4

(1) The Law of Property Act 1925 (c. 20) is amended as follows.

(2) In section 22 (conveyances on behalf of persons who lack capacity)—

(a) in subsection (1)—

(i) for the words from “in a person suffering” to “is acting” substitute “ , either solely or jointly with any other person or persons, in a person lacking capacity (within the meaning of the Mental Capacity Act 2005) to convey or create a legal estate, a deputy appointed for him by the Court of Protection or (if no deputy is appointed ”, and

(ii) for “the authority having jurisdiction under Part VII of the Mental Health Act 1983” substitute “ the Court of Protection ”,

(b) in subsection (2), for “is incapable, by reason of mental disorder, of exercising” substitute “ lacks capacity (within the meaning of that Act) to exercise ”, and

(c) in subsection (3), for the words from “an enduring power” to the end substitute “ an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act) is entitled to act for the trustee who lacks capacity in relation to the dealing. ”.

(3) In section 205(1) (interpretation), omit paragraph (xiii).

Administration of Estates Act 1925 (c. 23)

5

(1) The Administration of Estates Act 1925 (c. 23) is amended as follows.

(2) In section 41(1) (powers of personal representatives to appropriate), in the proviso—

(a) in paragraph (ii)—

(i) for the words from “is incapable” to “the consent” substitute “ lacks capacity (within the meaning of the Mental Capacity Act 2005) to give the consent, it ”, and

(ii) for “or receiver” substitute “ or a person appointed as deputy for him by the Court of Protection ”, and

(b) in paragraph (iv), for “no receiver is acting for a person suffering from mental disorder” substitute “ no deputy is appointed for a person who lacks capacity to consent ”.

(3) Omit section 55(1)(viii) (definitions of “person of unsound mind” and “defective”).

National Assistance Act 1948 (c. 29)

6

In section 49 of the National Assistance Act 1948 (c. 29) (expenses of council officers acting for persons who lack capacity)—

(a) for the words from “applies” to “affairs of a patient” substitute “ applies for appointment by the Court of Protection as a deputy ”, and

(b) for “such functions” substitute “ his functions as deputy ”.

U.S.A. Veterans' Pensions (Administration) Act 1949 (c. 45)

7

In section 1 of the U.S.A. Veterans' Pensions (Administration) Act 1949 (c. 45) (administration of pensions)—

(a) in subsection (4), omit the words from “or for whom” to “1983”, and

(b) after subsection (4), insert—

(4A) An agreement under subsection (1) is not to be made in relation to a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) for the purposes of this Act if— (a) there is a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for the person by the Court of Protection, and (b) the donee or deputy has power in relation to the person for the purposes of this Act. (4B) The proviso at the end of subsection (4) also applies in relation to subsection (4A).

Intestates' Estates Act 1952 (c. 64)

8

In Schedule 2 to the Intestates' Estates Act 1952 (c. 64) (rights of surviving spouse or civil partner in relation to home), for paragraph 6(1) substitute—

(1) Where the surviving spouse or civil partner lacks capacity (within the meaning of the Mental Capacity Act 2005) to make a requirement or give a consent under this Schedule, the requirement or consent may be made or given by a deputy appointed by the Court of Protection with power in that respect or, if no deputy has that power, by that court.

Variation of Trusts Act 1958 (c. 53)

9

In section 1 of the Variation of Trusts Act 1958 (c. 53) (jurisdiction of courts to vary trusts)—

(a) in subsection (3), for the words from “shall be determined” to the end substitute “ who lacks capacity (within the meaning of the Mental Capacity Act 2005) to give his assent is to be determined by the Court of Protection ”, and

(b) in subsection (6), for the words from “the powers” to the end substitute “ the powers of the Court of Protection ”.

Administration of Justice Act 1960 (c. 65)

10

In section 12(1)(b) of the Administration of Justice Act 1960 (c. 65) (contempt of court to publish information about proceedings in private relating to persons with incapacity) for the words from “under Part VIII” to “that Act” substitute “ under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 ”.

Industrial and Provident Societies Act 1965 (c. 12)

11

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

Compulsory Purchase Act 1965 (c. 56)

12

In Schedule 1 to the Compulsory Purchase Act 1965 (c. 56) (persons without power to sell their interests), for paragraph 1(2)(b) substitute—

(b) do not have effect in relation to a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) for the purposes of this Act if— (i) there is a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for the person by the Court of Protection, and (ii) the donee or deputy has power in relation to the person for the purposes of this Act.

Leasehold Reform Act 1967 (c. 88)

13

(1) For section 26(2) of the Leasehold Reform Act 1967 (c. 88) (landlord lacking capacity) substitute—

(2) Where a landlord lacks capacity (within the meaning of the Mental Capacity Act 2005) to exercise his functions as a landlord, those functions are to be exercised— (a) by a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for him by the Court of Protection, with power to exercise those functions, or (b) if no donee or deputy has that power, by a person authorised in that respect by that court.

(2) That amendment does not affect any proceedings pending at the commencement of this paragraph in which a receiver or a person authorised under Part 7 of the Mental Health Act is acting on behalf of the landlord.

Medicines Act 1968 (c. 67)

14

In section 72 of the Medicines Act 1968 (c. 67) (pharmacist lacking capacity)—

(a) in subsection (1)(c), for the words from “a receiver” to “1959” substitute “ he becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to carry on the business ”,

(b) after subsection (1) insert—

(1A) In subsection (1)(c), the reference to a person who lacks capacity to carry on the business is to a person— (a) in respect of whom there is a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the Mental Capacity Act 2005), or (b) for whom a deputy is appointed by the Court of Protection, and in relation to whom the donee or deputy has power for the purposes of this Act.

(i) for “receiver” substitute “ deputy ”, and

(ii) after “guardian” insert “ or from the date of registration of the instrument appointing the donee ”, and

(d) in subsection (4)(c), for “receiver” substitute “ donee, deputy ”.

Family Law Reform Act 1969 (c. 46)

15

For section 21(4) of the Family Law Reform Act 1969 (c. 46) (consent required for taking of bodily sample from person lacking capacity), substitute—

(4) A bodily sample may be taken from a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to give his consent, if consent is given by the court giving the direction under section 20 or by— (a) a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or (b) a deputy appointed, or any other person authorised, by the Court of Protection, with power in that respect.

16

(1) Schedule 1 to the Local Authority Social Services Act 1970 (c. 42) (enactments conferring functions assigned to social services committee) is amended as follows.

(2) In the entry for section 49 of the National Assistance Act 1948 (expenses of local authority officer appointed for person who lacks capacity) for “receiver” substitute “ deputy ”.

(3) At the end, insert—

Mental Capacity Act 2005
Section 39	Instructing independent mental capacity advocate before providing accommodation for person lacking capacity.
Section 49	Reports in proceedings.

Courts Act 1971 (c. 23)

17

In Part 1A of Schedule 2 to the Courts Act 1971 (c. 23) (office-holders eligible for appointment as circuit judges), omit the reference to a Master of the Court of Protection.

Local Government Act 1972 (c. 70)

18

(1) Omit section 118 of the Local Government Act 1972 (c. 70) (payment of pension etc. where recipient lacks capacity).

(2) Sub-paragraph (3) applies where, before the commencement of this paragraph, a local authority has, in respect of a person referred to in that section as “the patient”, made payments under that section—

(a) to an institution or person having the care of the patient, or

(b) in accordance with subsection (1)(a) or (b) of that section.

(3) The local authority may, in respect of the patient, continue to make payments under that section to that institution or person, or in accordance with subsection (1)(a) or (b) of that section, despite the repeal made by sub-paragraph (1).

Matrimonial Causes Act 1973 (c. 18)

19

In section 40 of the Matrimonial Causes Act 1973 (c. 18) (payments to person who lacks capacity) (which becomes subsection (1))—

(a) for the words from “is incapable” to “affairs” substitute “ (“P”) lacks capacity (within the meaning of the Mental Capacity Act 2005) in relation to the provisions of the order ”,

(b) for “that person under Part VIII of that Act” substitute “ P under that Act ”,

(d) at the end insert—

(2) In carrying out any functions of his in relation to an order made under subsection (1), D must act in P's best interests (within the meaning of that Act).

Juries Act 1974 (c. 23)

20

In Schedule 1 to the Juries Act 1974 (c. 23) (disqualification for jury service), for paragraph 3 substitute—

(3) A person who lacks capacity, within the meaning of the Mental Capacity Act 2005, to serve as a juror.

Consumer Credit Act 1974 (c. 39)

21

For section 37(1)(c) of the Consumer Credit Act 1974 (c. 39) (termination of consumer credit licence if holder lacks capacity) substitute—

(c) becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to carry on the activities covered by the licence.

Solicitors Act 1974 (c. 47)

22

(1) The Solicitors Act 1974 (c. 47) is amended as follows.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In section 62(4) (contentious business agreements made by clients) for paragraphs (c) and (d) substitute—

(c) as a deputy for him appointed by the Court of Protection with powers in relation to his property and affairs, or (d) as another person authorised under that Act to act on his behalf.

(4) In paragraph 1(1) of Schedule 1 (circumstances in which Law Society may intervene in solicitor's practice), for paragraph (f) substitute—

(f) a solicitor lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as a solicitor and powers under sections 15 to 20 or section 48 of that Act are exercisable in relation to him;

Local Government (Miscellaneous Provisions) Act 1976 (c. 57)

23

In section 31 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57) (the title to which becomes “Indemnities for local authority officers appointed as deputies or administrators”), for the words from “as a receiver” to “1959” substitute “ as a deputy for a person by the Court of Protection ”.

Sale of Goods Act 1979 (c. 54)

24

In section 3(2) of the Sale of Goods Act 1979 (c. 54) (capacity to buy and sell) the words “mental incapacity or” cease to have effect in England and Wales.

Limitation Act 1980 (c. 58)

25

In section 38 of the Limitation Act 1980 (c. 58) (interpretation) substitute—

(a) in subsection (2) for “of unsound mind” substitute “ lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings ”, and

(b) omit subsections (3) and (4).

Public Passenger Vehicles Act 1981 (c. 14)

26

In section 57(2)(c) of the Public Passenger Vehicles Act 1981 (c. 14) (termination of public service vehicle licence if holder lacks capacity) for the words from “becomes a patient” to “or” substitute “ becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to use a vehicle under the licence, or ”.

Judicial Pensions Act 1981 (c. 20)

27

In Schedule 1 to the Judicial Pensions Act 1981 (c. 20) (pensions of Supreme Court officers, etc.), in paragraph 1, omit the reference to a Master of the Court of Protection except in the case of a person holding that office immediately before the commencement of this paragraph or who had previously retired from that office or died.

Supreme Court Act 1981 (c. 54)

28

In Schedule 2 to the Supreme Court Act 1981 (c. 54) (qualifications for appointment to office in Supreme Court), omit paragraph 11 (Master of the Court of Protection).

Mental Health Act 1983 (c. 20)

29

(1) The Mental Health Act is amended as follows.

(2) In section 134(3) (cases where correspondence of detained patients may not be withheld) for paragraph (b) substitute—

(b) any judge or officer of the Court of Protection, any of the Court of Protection Visitors or any person asked by that Court for a report under section 49 of the Mental Capacity Act 2005 concerning the patient;

(3) In section 139 (protection for acts done in pursuance of 1983 Act), in subsection (1), omit from “or in, or in pursuance” to “Part VII of this Act,”.

(4) Section 142 (payment of pension etc. where recipient lacks capacity) ceases to have effect in England and Wales.

(5) Sub-paragraph (6) applies where, before the commencement of sub-paragraph (4), an authority has, in respect of a person referred to in that section as “the patient”, made payments under that section—

(a) to an institution or person having the care of the patient, or

(b) in accordance with subsection (2)(a) or (b) of that section.

(6) The authority may, in respect of the patient, continue to make payments under that section to that institution or person, or in accordance with subsection (2)(a) or (b) of that section, despite the amendment made by sub-paragraph (4).

(7) In section 145(1) (interpretation), in the definition of “patient”, omit “(except in Part VII of this Act)”.

(8) In section 146 (provisions having effect in Scotland), omit from “104(4)” to “section),”.

(9) In section 147 (provisions having effect in Northern Ireland), omit from “104(4)” to “section),”.

Administration of Justice Act 1985 (c. 61)

30

In section 18(3) of the Administration of Justice Act 1985 (c. 61) (licensed conveyancer who lacks capacity), for the words from “that person” to the end substitute “ he becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to practise as a licensed conveyancer. ”.

Insolvency Act 1986 (c. 45)

31

(1) The Insolvency Act 1986 (c. 45) is amended as follows.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In section 390 (people not qualified to be insolvency practitioners), in subsection (4)—

(a) omit the “or” immediately after paragraph (b),

(b) in paragraph (c), omit “Part VII of the Mental Health Act 1983 or”, and

, or (d) he lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as an insolvency practitioner.

Building Societies Act 1986 (c. 53)

32

In section 102D(9) of the Building Societies Act 1986 (c. 53) (references to a person holding an account on trust for another)—

(a) in paragraph (a), for “Part VII of the Mental Health Act 1983” substitute “ the Mental Capacity Act 2005 ”, and

(b) for paragraph (b) substitute—

(b) to an attorney holding an account for another person under— (i) an enduring power of attorney or lasting power of attorney registered under the Mental Capacity Act 2005, or (ii) an enduring power registered under the Enduring Powers of Attorney (Northern Ireland) Order 1987;

Public Trustee and Administration of Funds Act 1986 (c. 57)

33

In section 3 of the Public Trustee and Administration of Funds Act 1986 (c. 57) (functions of the Public Trustee)—

(a) for subsections (1) to (5) substitute—

(1) The Public Trustee may exercise the functions of a deputy appointed by the Court of Protection.

(b) in subsection (6), for “the 1906 Act” substitute “ the Public Trustee Act 1906 ”, and

Patronage (Benefices) Measure 1986 (No.3)

34

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

(2) In section 5 (rights of patronage exercisable otherwise than by registered patron), after subsection (3) insert—

(3A) The reference in subsection (3) to a power of attorney does not include an enduring power of attorney or lasting power of attorney (within the meaning of the Mental Capacity Act 2005).

(3) In section 9 (information to be sent to designated officer when benefice becomes vacant), after subsection (5) insert—

(5A) Subsections (5B) and (5C) apply where the functions of a registered patron are, as a result of paragraph 10 of Schedule 2 to the Mental Capacity Act 2005 (patron's loss of capacity to discharge functions), to be discharged by an individual appointed by the Court of Protection. (5B) If the individual is a clerk in Holy Orders, subsection (5) applies to him as it applies to the registered patron. (5C) If the individual is not a clerk in Holy Orders, subsection (1) (other than paragraph (b)) applies to him as it applies to the registered patron.

Courts and Legal Services Act 1990 (c. 41)

35

(1) The Courts and Legal Services Act 1990 (c. 41) is amended as follows.

(2) In Schedule 11 (judges etc. barred from legal practice), for the reference to a Master of the Court of Protection substitute a reference to each of the following—

(a) Senior Judge of the Court of Protection

(b) President of the Court of Protection

(3) In paragraph 5(3) of Schedule 14 (exercise of powers of intervention in registered foreign lawyer's practice), for paragraph (f) substitute—

(f) he lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as a registered foreign lawyer and powers under sections 15 to 20 or section 48 are exercisable in relation to him;

Child Support Act 1991 (c. 48)

36

In section 50 of the Child Support Act 1991 (c. 48) (unauthorised disclosure of information)—

(a) in subsection (8)—

(i) immediately after paragraph (a), insert “ or ”,

(ii) omit paragraphs (b) and (d) and the “or” immediately after paragraph (c), and

(iii) for “, receiver, custodian or appointee” substitute “ or custodian ”, and

(b) after that subsection, insert—

(9) Where the person to whom the information relates lacks capacity (within the meaning of the Mental Capacity Act 2005) to consent to its disclosure, the appropriate person is— (a) a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or (b) a deputy appointed for him, or any other person authorised, by the Court of Protection, with power in that respect.

37

In section 123 of the Social Security Administration Act 1992 (c. 5) (unauthorised disclosure of information)—

(a) in subsection (10), omit—

(i) in paragraph (b), “a receiver appointed under section 99 of the Mental Health Act 1983 or”,

(ii) in paragraph (d)(i), “sub-paragraph (a) of rule 41(1) of the Court of Protection Rules 1984 or”,

(iii) in paragraph (d)(ii), “a receiver ad interim appointed under sub-paragraph (b) of the said rule 41(1) or”, and

(iv) “receiver,”, and

(b) after that subsection, insert—

(11) Where the person to whom the information relates lacks capacity (within the meaning of the Mental Capacity Act 2005) to consent to its disclosure, the appropriate person is— (a) a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or (b) a deputy appointed for him, or any other person authorised, by the Court of Protection, with power in that respect.

Judicial Pensions and Retirement Act 1993 (c. 8)

38

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

(2) In Schedule 1 (qualifying judicial offices), in Part 2, under the cross-heading “Court officers”, omit the reference to a Master of the Court of Protection except in the case of a person holding that office immediately before the commencement of this sub-paragraph or who had previously retired from that office or died.

(3) In Schedule 5(retirement: the relevant offices), omit the entries relating to the Master and Deputy or temporary Master of the Court of Protection, except in the case of a person holding any of those offices immediately before the commencement of this sub-paragraph.

(4) In Schedule 7(retirement: transitional provisions), omit paragraph 5(5)(i)(g) except in the case of a person holding office as a deputy or temporary Master of the Court of Protection immediately before the commencement of this sub-paragraph.

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

39

(1) For paragraph 4 of Schedule 2 to the Leasehold Reform, Housing and Urban Development Act 1993 (c. 28) (landlord under a disability), substitute—

(4) (1) This paragraph applies where a Chapter I or Chapter II landlord lacks capacity (within the meaning of the Mental Capacity Act 2005) to exercise his functions as a landlord. (2) For the purposes of the Chapter concerned, the landlord's place is to be taken— (a) by a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for him by the Court of Protection, with power to exercise those functions, or (b) if no deputy or donee has that power, by a person authorised in that respect by that court.

(2) That amendment does not affect any proceedings pending at the commencement of this paragraph in which a receiver or a person authorised under Part 7 of the Mental Health Act 1983 (c. 20) is acting on behalf of the landlord.

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

40

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

(2) In section 16(5) (termination of licence), for “he becomes a patient within the meaning of Part VII of the Mental Health Act 1983” substitute “ he becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to use a vehicle under the licence ”.

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

(a) in subsection (2)—

(i) for “or become a patient within the meaning of Part VII of the Mental Health Act 1983” substitute “ , or become a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to use a vehicle under the licence, ”, and

(ii) in paragraph (a), for “became a patient” substitute “ became a person who lacked capacity in that respect ”, and

(b) in subsection (5), for “a patient within the meaning of Part VII of the Mental Health Act 1983” substitute “ a person lacking capacity ”.

Disability Discrimination Act 1995 (c. 50)

41

In section 20(7) of the Disability Discrimination Act 1995 (c. 50) (regulations to disapply provisions about incapacity), in paragraph (b), for “Part VII of the Mental Health Act 1983” substitute “ the Mental Capacity Act 2005 ”.

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

42

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

(2) In section 9 (delegation by trustees), in subsection (6), for the words from “an enduring power” to the end substitute “ an enduring power of attorney or lasting power of attorney within the meaning of the Mental Capacity Act 2005 ”.

(3) In section 20 (the title to which becomes “ Appointment of substitute for trustee who lacks capacity ”)—

(a) in subsection (1)(a), for “is incapable by reason of mental disorder of exercising” substitute “ lacks capacity (within the meaning of the Mental Capacity Act 2005) to exercise ”, and

(b) in subsection (2)—

(i) for paragraph (a) substitute—

(a) a deputy appointed for the trustee by the Court of Protection,

(ii) in paragraph (b), for the words from “a power of attorney” to the end substitute “ an enduring power of attorney or lasting power of attorney registered under the Mental Capacity Act 2005 ”, and

(iii) in paragraph (c), for the words from “the authority” to the end substitute “ the Court of Protection ”.

Human Rights Act 1998 (c. 42)

43

In section 4(5) of the Human Rights Act 1998 (c. 42) (courts which may make declarations of incompatibility), after paragraph (e) insert—

(f) the Court of Protection, in any matter being dealt with by the President of the Family Division, the Vice-Chancellor or a puisne judge of the High Court.

Access to Justice Act 1999 (c. 22)

44

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

Adoption and Children Act 2002 (c. 38)

45

In section 52(1)(a) of the Adoption and Children Act 2002 (c. 38) (parental consent to adoption), for “is incapable of giving consent” substitute “ lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent ”.

Licensing Act 2003 (c. 17)

46

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

(2) In section 27(1) (lapse of premises licence), for paragraph (b) substitute—

(b) becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to hold the licence,

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

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

(b) the former holder lacks capacity (within the meaning of the Mental Capacity Act 2005) to hold the licence and that person acts for him under an enduring power of attorney or lasting power of attorney registered under that Act,

, and

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

Courts Act 2003 (c. 39)

47

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

(2) In section 1(1) (the courts in relation to which the Lord Chancellor must discharge his general duty), after paragraph (a) insert—

(aa) the Court of Protection,

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

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

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

(i) Senior Judge of the Court of Protection,

(ii) President of the Court of Protection,

(iii) Vice-president of the Court of Protection.

SCHEDULE 7

People who lack capacity

4A

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