SCHEDULES
SCHEDULE 4Lasting powers of attorney: formalities
Part 1Making instruments
General requirements as to making instruments
1
1
An instrument is made in accordance with this Schedule only if—
a
it is in a form specified by regulations or by the Public Guardian in accordance with regulations;
b
it complies with paragraph 2; and
c
any prescribed requirements in connection with its execution are met.
2
Regulations may make different provision according to whether the instrument relates to—
a
care, treatment and personal welfare (or any of those matters); or
b
property and affairs; or
c
matters within both head (a) and head (b).
3
Regulations may also make different provision according to whether only one or more than one attorney or replacement attorney is to be appointed (and if more than one, whether jointly or jointly and severally).
4
In this Schedule—
a
“intended attorney”, in relation to an instrument, means a person who if the instrument were registered and a lasting power of attorney were created would be an attorney under the lasting power;
b
“replacement attorney” means a person appointed under section 103(1)(b) to replace a person appointed as an attorney.
5
In paragraphs 7, 14, 15, 17 and 26, references to a person appointed as an attorney or replacement attorney do not include a person whose appointment has terminated.
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 the donor—
i
has read the prescribed information or a prescribed part of it (or has heard it read); and
ii
intends the authority conferred by the instrument to include authority to make decisions on the donor’s behalf in circumstances where the donor no longer has capacity;
c
a statement by the donor—
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 the donor wishes to be notified of any such application;
d
a statement by each person appointed as attorney, and each person (if any) appointed as replacement attorney, to the effect that he or she—
i
has read the prescribed information or a prescribed part of it (or has heard it read); and
ii
understands the duties imposed by sections 1, 2, 5 and 7 (principles, best interests) on an attorney under a lasting power of attorney; and
e
a certificate by a person of a prescribed description that, in that person’s 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 by 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 prescribe a maximum number of persons who may be named under sub-paragraph (1)(c).
3
The persons who may be named under sub-paragraph (1)(c) do not include a person who is appointed as attorney or replacement attorney by the instrument.
4
A certificate under sub-paragraph (1)(e)—
a
must be made in a form specified by regulations or by the Public Guardian in accordance with regulations; and
b
must include any prescribed information.
5
The certificate may not be given by a person appointed as attorney or replacement attorney by the instrument.
Failure to comply with required form
3
1
If an instrument differs in an immaterial respect in form or mode of expression from the form specified under paragraph 1(1)(a), 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 form specified under paragraph 1(1)(a) is to be treated as if it were in that form, if the court is satisfied that the persons executing the instrument intended it to create a lasting power of attorney.