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Enduring Powers of Attorney Act 1985

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This is the original version (as it was originally enacted).

1Enduring power of attorney to survive mental incapacity of donor

(1)Where an individual creates a power of attorney which is an enduring power within the meaning of this Act then—

(a)the power shall not be revoked by any subsequent mental incapacity of his; but

(b)upon such incapacity supervening the donee of the power may not do anything under the authority of the power except as provided by subsection (2) below or as directed or authorised by the court under section 5 unless or, as the case may be, until the instrument creating the power is registered by the court under section 6; and

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and so long as paragraph (b) above operates to suspend the donee's authority to act under the power as if the power had been revoked by the donor's mental incapacity.

(2)Notwithstanding subsection (1)(b) above, where the attorney has made an application for registration of the instrument then, until the application has been initially determined, 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 section 3(4) permits him to do so.

(3)Where the attorney purports to act as provided by subsection (2) above then, in favour of a person who deals with him without knowledge that the attorney is acting otherwise than in accordance with paragraph (a) or (b) of that subsection, the transaction between them shall be as valid as if the attorney were acting in accordance with paragraph (a) or (b).

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