The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2010

This Statutory Instrument has been printed in substitution of the SI of the same number and is being issued free of charge to all known recipients of that Statutory Instrument.

Statutory Instruments

2010 No. 1063

Mental Capacity, England And Wales

The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2010

Made

25th March 2010

Laid before Parliament

29th March 2010

Coming into force

1st May 2010

The Lord Chancellor, in exercise of the powers conferred by sections 58(3), 64(1) and 65(1)(b) and (c) of, and paragraphs 4(4) and 9(a) of Schedule 4 to, the Mental Capacity Act 2005(1), makes the following Regulations:

Citation and commencement

1.  These Regulations may be cited as the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2010 and shall come into force on 1st May 2010.

Amendments to the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007

2.  The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007(2) are amended in accordance with regulations 3 to 7.

3.  In regulation 24 (application for registration)—

(a) after paragraph (1) insert—

“(1A) The Public Guardian must not register an instrument where only a certified copy of the instrument is sent with the application, unless the applicant verifies that he cannot produce the original instrument because it has been lost or, as the case may be, destroyed.”; and

(b) at the end of paragraph (2)(b), insert “in relation to which paragraph (1A) has been complied with”.

4.  For regulation 37(3) (discharge of any endorsed security), substitute—

“(3) Otherwise the security may not be discharged—

(a) if the person on whose behalf S was appointed to act dies, until the end of the period of 2 years beginning on the date of his death; or

(b) in any other case, until the end of the period of 7 years beginning on whichever of the following dates first occurs—

(i) if S dies, the date of his death;

(ii) if the court makes an order which discharges S but which does not also discharge the security under paragraph (2), the date of the order;

(iii) the date when S otherwise ceases to be under a duty to discharge the functions in respect of which he was ordered to give security.”.

5.  In regulation 48 (other functions in relation to enduring powers of attorney)—

(a) before “The Public Guardian” insert (1); and

(b) at the end, insert—

“(2) The functions conferred by paragraph (1) may be discharged in co-operation with any other person who has functions in relation to the care or treatment of P.”.

6.  For the form in Schedule 7 (notice of intention to apply for registration of an enduring power of attorney), substitute the form set out in Schedule 1 to these Regulations.

7.  For the form in Schedule 8 (application to register an enduring power of attorney), substitute the form set out in Schedule 2 to these Regulations.

Transitional provisions

8.—(1) These Regulations apply to—

(a) subject to paragraph (2), any application for the registration of an enduring power of attorney sent to the Office of the Public Guardian on or after 1^st May 2010;

(b) the discharge of any security given to the Public Guardian under regulation 37 (discharge of any endorsed security) in relation to which the person on whose behalf S was appointed to act dies on or after 1^st May 2010;

(c) any function undertaken by the Public Guardian under regulation 48 (other functions in relation to enduring powers of attorney) on or after 1^st May 2010.

(2) Any application for the registration of an enduring power of attorney sent to the Office of the Public Guardian before 1^st November 2010, and any related notice of intention to apply for registration of the power, shall be treated as valid if made or, as the case may be, given in the form prescribed before the coming into force of these Regulations.

Signed on the authority of the Lord Chancellor

Bridget Prentice

Parliamentary Under Secretary of State

Ministry of Justice

25th March 2010

Regulation 6

SCHEDULE 1 NOTICE OF INTENTION TO APPLY FOR REGISTRATION OF AN ENDURING POWER OF ATTORNEY

Regulation 7

SCHEDULE 2 APPLICATION TO REGISTER AN ENDURING POWER OF ATTORNEY

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (SI 2007/1253) (“the principal Regulations”). The amendments are as follows.

Regulation 3 adds new paragraph (1A) to regulation 24 (application for registration) of the principal Regulations. New paragraph (1A) provides that an instrument may not be registered where only a certified copy of it is sent with the application, unless the applicant verifies that s/he cannot produce the original instrument because it has been lost or destroyed.

Regulation 4 substitutes an amended paragraph (3) into regulation 37 (discharge of any endorsed security) of the principal Regulations. The substituted paragraph (3) reduces to 2 years the 7-year period during which a security may not be discharged in cases where the person for whose benefit the security was given dies; the 2-year period begins on the date of the death. The 7-year period is retained in all other cases where discharge of the security is not provided for by an order of the court.

Regulation 5 adds to regulation 48 (other functions in relation to enduring powers of attorney) of the principal Regulations new paragraph (2) which provides that the functions conferred on the Public Guardian by the regulation may be discharged in co-operation with any other person who has functions in relation to the care or treatment of P (the subject of the enduring power of attorney).

Regulations 6 and 7 substitute revised forms in Schedules 7 (notice of intention to register an enduring power of attorney) and 8 (application to register an enduring power of attorney) respectively of the principal Regulations.

Regulation 8 sets out transitional provisions.

The Regulations come into force on 1^st May 2010.

(1)

2005, c. 9. Section 64(1) was amended by the Mental Health Act 2007, section 50(7) and Schedule 9, Part 1, paragraphs 1 and 10. Section 65 was amended by the Mental Health Act 2007, section 50(7) and Schedule 9, Part 1, paragraphs 1 and 11, and by SI 2006/1016, article 2 and Schedule 1, paragraph 37.

(2)

S.I. 2007/1253, amended by SI 2007/2051, 2007/2161 and 2009/1884.