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Mental Capacity Act 2005

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Section 9

SCHEDULE 1E+W+S+N.I.Lasting powers of attorney: formalities

This schedulenoteType=Explanatory Notes has no associated

Part 1 E+W+S+N.I.Making instruments

General requirements as to making instrumentsE+W+S+N.I.

1(1)An instrument is not made in accordance with this Schedule unless—E+W+S+N.I.

(a)it is in the prescribed form,

(b)it complies with paragraph 2, and

(c)any prescribed requirements in connection with its execution are satisfied.

(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 instrumentsE+W+S+N.I.

2(1)The instrument must include—E+W+S+N.I.

(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,

(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 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 formE+W+S+N.I.

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.E+W+S+N.I.

(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 E+W+S+N.I.Registration

Applications and procedure for registrationE+W+S+N.I.

4(1)An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney—E+W+S+N.I.

(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 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.

5Subject 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.E+W+S+N.I.

Notification requirementsE+W+S+N.I.

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.E+W+S+N.I.

(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.

7As 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.E+W+S+N.I.

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.E+W+S+N.I.

(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.E+W+S+N.I.

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

Power to dispense with notification requirementsE+W+S+N.I.

10The court may—E+W+S+N.I.

(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 provisionE+W+S+N.I.

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.E+W+S+N.I.

(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 appointedE+W+S+N.I.

12(1)Sub-paragraph (2) applies if it appears to the Public Guardian that—E+W+S+N.I.

(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 personE+W+S+N.I.

13(1)Sub-paragraph (2) applies if a donee or a named person—E+W+S+N.I.

(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 donorE+W+S+N.I.

14(1)This paragraph applies if the donor—E+W+S+N.I.

(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 registrationE+W+S+N.I.

15Where an instrument is registered under this Schedule, the Public Guardian must give notice of the fact in the prescribed form to—E+W+S+N.I.

(a)the donor, and

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

Evidence of registrationE+W+S+N.I.

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—E+W+S+N.I.

(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 E+W+S+N.I.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—E+W+S+N.I.

(a)as a result of the donor's bankruptcy, 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.

18The court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if it—E+W+S+N.I.

(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

(c)revokes the power under section 22(4)(b) (fraud etc.).

19(1)Sub-paragraph (2) applies if the court determines under section 23(1) that a lasting power of attorney contains a provision which—E+W+S+N.I.

(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.

20On 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.E+W+S+N.I.

Part 4 E+W+S+N.I.Records of alterations in registered powers

Partial revocation or suspension of power as a result of bankruptcyE+W+S+N.I.

21If 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.E+W+S+N.I.

Termination of appointment of donee which does not revoke powerE+W+S+N.I.

22If in the case of a registered instrument it appears to the Public Guardian that an event has occurred—E+W+S+N.I.

(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 doneeE+W+S+N.I.

23If 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.E+W+S+N.I.

Severance of ineffective provisionsE+W+S+N.I.

24If 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.E+W+S+N.I.

Notification of alterationsE+W+S+N.I.

25If 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).E+W+S+N.I.

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