Search Legislation

Mental Capacity Act 2005

Status:

This is the original version (as it was originally enacted).

Part 2Registration

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 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.

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.

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.

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

10The 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

15Where 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.

Back to top

Options/Help

Print Options

You have chosen to open The Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act as a PDF

The Whole Act you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open the Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

See additional information alongside the content

Show Explanatory Notes for Sections: Displays relevant parts of the explanatory notes interweaved within the legislation content.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Notes

Text created by the government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Public Acts except Appropriation, Consolidated Fund, Finance and Consolidation Acts.

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources