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Statutory Instruments

2007 No. 2051

mental capacity, ENGLAND AND WALES

The Public Guardian (Fees, etc) Regulations 2007

Made

26th June 2007

Laid before Parliament

19th July 2007

Coming into force

1st October 2007

The Lord Chancellor makes the following Regulations in exercise of the powers conferred by section 58(3) and (4) and 65(1)(b) of the Mental Capacity Act 2005(1):

Citation and commencementE+W

1.  These Regulations may be cited as the Public Guardian (Fees, etc) Regulations 2007 and shall come into force on 1 October 2007.

Commencement Information

I1Reg. 1 in force at 1.10.2007, see reg. 1

InterpretationE+W

2.  In these Regulations—

[F1“the 2017 Act” means the Guardianship (Missing Persons) Act 2017;]

“the Act” means the Mental Capacity Act 2005;

“court” means the Court of Protection [F2or in relation to proceedings under the 2017 Act the court for the time being designated by the Lord Chancellor under section 23 of the 2017 Act;]

[F3“guardian” has the meaning given in the 2017 Act;

“guardianship order” has the meaning given in the 2017 Act;

“missing person” has the meaning given in the 2017 Act;]

[F4“office copy” means a true copy of the original marked by the Public Guardian as being an office copy;]

“P” means the person in respect of whom a deputy has been appointed under section 16 of the Act; and

“Public Guardian” means the officer appointed in accordance with section 57 of the Act;

“the registers” means—

(a)

the register of lasting powers of attorney,

(b)

the register of enduring powers of attorney, F5...

(c)

the register of court orders appointing deputies, [F6and]

(d)

[F7the register of guardianship orders,]

established and maintained by the Public Guardian under section 58(1)(a) and (b) [F8and (2A)(a)] of and paragraph 14 of Schedule 4 to the Act.

Textual Amendments

Commencement Information

I2Reg. 2 in force at 1.10.2007, see reg. 1

Schedule of feesE+W

3.  The fees set out in the Schedule to these Regulations shall apply in accordance with the following provisions of these Regulations.

Commencement Information

I3Reg. 3 in force at 1.10.2007, see reg. 1

[F9Fee for application to register an enduring power of attorney]E+W

4.—(1) A fee for the registration of an enduring power of attorney shall be payable by the person seeking to register the enduring power of attorney under regulation 24 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007(2) (application for registration).

(2) The fee prescribed by paragraph (1) shall be payable upon the application to register the enduring power of attorney.

Textual Amendments

Commencement Information

I4Reg. 4 in force at 1.10.2007, see reg. 1

[F10Enduring power of attorney office copy feeE+W

4A.—(1) A fee for an office copy of an enduring power of attorney registered under paragraph 13 in Part 4 of Schedule 4 to the Mental Capacity Act 2005 shall be payable by the person requesting the office copy.

(2) The fee prescribed by paragraph (1) shall be payable at the time the request for an office copy is made.]

Textual Amendments

[F11Fees for application to register a lasting power of attorney and repeat application to register]E+W

5.—(1) A fee for the registration of a lasting power of attorney shall be payable by the person seeking to register the lasting power of attorney under regulation 11 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (application for registration).

[F12(1A) A reduced fee for an application to register a lasting power of attorney shall be payable where the application is a repeat application in the following circumstances—

(a)the initial application to register a lasting power of attorney is made on or after 1st October 2011;

(b)the initial application is returned to the applicant as invalid; and

(c)the repeat application to register is submitted within 3 months of the date on which the invalid application was returned to the applicant.]

[F13(2) The fee prescribed by—

(a)paragraph (1) shall be payable upon the application to register the lasting power of attorney; and

(b)paragraph (1A) shall be payable upon the submission of the repeat application to register.]

Textual Amendments

Commencement Information

I5Reg. 5 in force at 1.10.2007, see reg. 1

[F14Lasting power of attorney office copy feeE+W

5A.—(1) A fee for an office copy of a lasting power of attorney registered under Part 2 of Schedule 1 to the Mental Capacity Act 2005(3) shall be payable by the person requesting the office copy.

(2) The fee prescribed by paragraph (1) shall be payable at the time the request for an office copy is made.]

Textual Amendments

Application to search the registers feeE+W

F156.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Appointment of deputy feeE+W

F167.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F17Appointment of deputy: assessment and supervision fees]E+W

8.—(1) This regulation applies where—

(a)the court has appointed a deputy under section 16 of the Act (powers to make decisions and appoint deputies: general) F18...

(2) Where paragraph (1) applies the Public Guardian shall [F19assess] the level of supervision required under section 58(1)(c) of the Act.

(3) The levels of supervision are—

(a)[F20general; and];

F21(aa). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F22(b) minimal.]

F23(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F24(3A) Where the Public Guardian makes an assessment in accordance with paragraph (2) a fee shall be payable by P within 30 days of the date of the invoice for the fee.]

[F25(4) Where the level of supervision assessed by the Public Guardian in accordance with paragraph (2) is—

(a)“general”, an annual supervision fee shall be payable by P until the appointment of the deputy is terminated; and

(b)“minimal”, an annual administration fee shall be payable by P until the appointment of the deputy is terminated.]

(5) Subject to paragraphs (6) and (7), the appropriate supervision fee prescribed by [F26paragraph (4)] shall be due on 31 March each year and shall be payable by P within 30 days of the date of the invoice for the fee.

(6) Where the period for which the fee prescribed by paragraph (4) is payable is less than one year, the amount of the fee payable shall be such proportion of the full fee as that period bears to one year.

(7) Where the deputy’s appointment terminates, the appropriate fee prescribed by paragraph (4) shall be due on the date of termination and shall be payable within 30 days of the date of the invoice for the fee.

(8) In the event of termination of the appointment due to P’s death, the appropriate fee prescribed by [F27paragraphs (3A) and (4)] shall be payable by P’s estate.

Textual Amendments

Commencement Information

I6Reg. 8 in force at 1.10.2007, see reg. 1

[F28Guardianship orders: set-up and supervision feesE+W

8A.—(1) This regulation applies where the court has made a guardianship order.

(2) A set-up fee shall be payable by the guardian within 30 days of the date of the invoice for the fee.

(3) An annual supervision fee shall be payable by the guardian until—

(a)the period of guardianship specified in the guardianship order expires under section 7 of the 2017 Act (period of guardianship);

(b)the court makes an order revoking the guardianship order under section 13 of the 2017 Act (revocation of the guardianship order); or

(c)the guardianship order is automatically revoked under section 14 of the 2017 Act (automatic revocation).

(4) Subject to paragraph (6), the annual supervision fee shall be due—

(a)for the first year, on the date 12 months after the date of the guardianship order;

(b)thereafter, on the date 12 months after the previous annual supervision fee became payable; and

shall be payable by the guardian within 30 days of the date of the invoice for the fee.

(5) Where the period for which the fee prescribed by paragraph (3) is payable is less than one year, the amount of the fee payable shall be such proportion of the full fee as that period bears to one year.

(6) Where the period of guardianship expires or the guardianship order is revoked, the appropriate fee prescribed by paragraph (3) shall be due on the date of expiry or revocation and shall be payable within 30 days of the date of the invoice for the fee.

(7) In the event of automatic revocation of the guardianship order under section 14(1)(c) of the 2017 Act due to the death of the guardian, the appropriate fee prescribed by paragraphs (2) and (3) above shall be payable by the missing person or charged to their estate.]

Textual Amendments

ExemptionsE+W

9.—(1) Subject to [F29paragraphs (2) and (2A)] [F30the Public Guardian shall grant an exemption such that no fee shall be payable under these regulations where, on application for an exemption, reduction or remission, it is shown that], at the time when the fee would otherwise become payable, the relevant person is in receipt of any qualifying benefit.

[F31(1A) Where the Public Guardian grants an exemption under paragraph (1) in respect of the following fees—

(a)deputyship general supervision (regulation 8); or

(b)guardianship supervision (regulation 8A);

that exemption shall be granted for a period that the Public Guardian sees fit, such a period not to exceed 3 years.

(1AA) At the end of the exemption period granted under paragraph (1A) further application for an exemption, reduction or remission may be made under paragraph (1).]

(2) Paragraph (1) does not apply to a person who has an award of damages in excess of £16,000 which has been disregarded for the purposes of determining eligibility for that benefit.

[F32(2A) Paragraph (1) does not apply to the office copy fees prescribed by regulations 4A and 5A.]

(3) For the purposes of regulation 4 the relevant person is the donor of the enduring power of attorney.

(4) For the purposes of regulation 5 the relevant person is the donor of the lasting power of attorney.

(5) For the purposes of regulation 6 the relevant person is the person making the application.

(6) For the purposes of regulations 7 and 8 the relevant person is P.

[F33(6A) For the purposes of regulation 8A the relevant person is the missing person.]

(7) The following are qualifying benefits for the purposes of paragraph (1)—

(a)income support under the Social Security Contributions and Benefits Act 1992(4);

(b)working tax credit, provided that—

(i)child tax credit is being paid to the relevant person, or to a couple (as defined in section 3(5)(A) of the Tax Credits Act 2002(5)) which includes the relevant person; or

(ii)there is a disability element or severe disability element (or both) to the F34... tax credit received by the relevant person;

(c)income-based job-seeker’s allowance under the Jobseekers Act 1995(6);

(d)guarantee credit under the State Pensions Credit Act 2002(7);

(e)council tax benefit under the Social Security Contributions and Benefits Act 1992; F35...

(f)housing benefit under the Social Security Contributions and Benefits Act 1992 [F36; and

(g)income-related employment and support allowance under Part 1 of the Welfare Reform Act 2007].

Textual Amendments

Commencement Information

I7Reg. 9 in force at 1.10.2007, see reg. 1

Reductions and remissions F37...E+W

10.— [F38(1)] Where it appears to the Public Guardian that the payment of any fee prescribed by these Regulations would, owing to the exceptional circumstances of the particular case, involve undue hardship, he may reduce or remit the fee in that case.

[F39(1A) Where, at the time that a fee under these Regulations is payable, the relevant person (or a couple which includes the relevant person) is in receipt of universal credit under the Welfare Reform Act 2012, the Public Guardian may reduce or remit that fee.

[F40(1AA) The Public Guardian shall grant a 50% remission of a fee payable under these regulations where, on application for an exemption, reduction or remission it is shown that at the time the fee under these regulations is payable, the relevant person’s gross annual income does not exceed £12,000.

(1AB) Where the Public Guardian grants a remission under this regulation in respect of the following fees—

(a)deputyship general supervision (regulation 8); or

(b)guardianship supervision (regulation 8A);

that remission will be granted for a period that the Public Guardian sees fit, such a period not to exceed 3 years.

(1AC) At the end of the remission period granted under paragraph (1AB) further application for an exemption, reduction or remission may be made under paragraph (1AA).]

(1B) [F41Paragraphs (1AA) and (1AB) do not apply to —]

[F42(a)]the office copy fees prescribed by regulations 4A and 5A [F43, or]

[F44(b)the annual administration fee for minimal supervision, prescribed by regulation 8(4)(b).]

(1C) In [F45this regulation]—

(a)paragraphs (3) to (6) of regulation 9 apply for the purpose of determining who is the relevant person;

(b)“couple” has the meaning given in section 39 of the Welfare Reform Act 2012 [F46; and]

[F47(c)“gross annual income” means total annual income received before tax and National Insurance are paid, for the 12 months preceding the date the fee would otherwise become payable.]]

F48(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F38Reg. 10 renumbered as reg. 10(1) (1.5.2010) by virtue of The Public Guardian (Fees, etc.) (Amendment) Regulations 2010 (S.I. 2010/1062), regs. 1, 3(a) (with reg. 4)

Commencement Information

I8Reg. 10 in force at 1.10.2007, see reg. 1

[F49Applications for exemptions, reductions and remissionsE+W

10A.—(1) An application for an exemption, reduction or remission of any fee payable under—

(a)regulation 4 (fees for application to register an enduring power of attorney; or

(b)regulation 5 (fees for application to register a lasting power of attorney and repeat application to register);

must be made to the Public Guardian at the time the application to register the enduring power of attorney or lasting power of attorney is made.

(2) An application for an exemption, reduction or remission of any fee payable under—

(a)regulation 8 (appointment of deputy: assessment and supervision fees); or

(b)regulation 8A (guardianship orders: set-up and supervision fees);

must be made to the Public Guardian within 6 months after the date of the invoice in respect of that fee.

(3) Where an application for an exemption, reduction or remission of a fee is made, the applicant must—

(a)indicate the fee to which the application relates;

(b)indicate whether the applicant is requesting an exemption or remission for more than 12 months under regulation 9(1A) or 10(1AB); and

(c)provide documentary evidence of the basis on which the applicant considers the relevant person may be entitled to an exemption, reduction or remission.]

Textual Amendments

Transitional provisionE+W

11.—(1) In respect of the administration fee that would have been payable under rule 78 of the Court of Protection Rules 2001(8) on 31 March 2008, the appropriate proportion of that fee shall be due on 30 September 2007 and shall be payable within 30 days of the date of the invoice for the fee.

(2) Where the period for which the fee prescribed by paragraph (1) is payable is less than six months, the amount of the fee payable shall be such proportion of that fee as that period bears to six months.

Commencement Information

I9Reg. 11 in force at 1.10.2007, see reg. 1

Amendment to Schedule 7 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007E+W

12.—(1) Schedule 7 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 is amended as follows.

(2) For paragraph 1 of Form EP1PG substitute “You have the right to object to the proposed registration on one or more of the grounds set out below. You must notify the Office of the Public Guardian of your objection within five weeks from the day this notice was given to you. You may make an application to the Court of Protection under rule 68 of the Court of Protection Rules 2007(9) for a decision on the matter. No fee is payable for such an application. If you do not make such an application, the Public Guardian will ask for the court’s directions about registration.”

Commencement Information

I10Reg. 12 in force at 1.10.2007, see reg. 1

Signed by authority of the Lord Chancellor

Catherine Ashton

Parliamentary Under-Secretary of State

Ministry of Justice

26th June 2007

Regulation 3

SCHEDULEE+WFEES TO BE TAKEN

Commencement Information

I11Sch. in force at 1.10.2007, see reg. 1

Column 1Column 2
[F50Fee for application to register an enduring power of attorney (regulation 4) [F51£82]]
[F52Enduring power of attorney office copy fee (regulation 4A) £25]
[F53Fee for application to register a lasting power of attorney (regulation 5) [F54£82]]
[F55Reduced fee for repeat application to register a lasting power of attorney (regulation 5) [F56£41]]
[F57Lasting power of attorney office copy fee (regulation 5A) [F58£35.00]]
F59. . .F59. . .
[F60Deputy assessment fee (regulation 8)] [F61£100]
[F62general supervision (regulation 8) £320]
F63. . .F63. . .
[F64minimal supervision (regulation 8) £35.00]
[F65Guardianship set-up fee (regulation 8A) £200.00]
[F65Guardianship supervision (regulation 8A) £320.00]
F66. . .F66. . .

Textual Amendments

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations provide for fees to be charged in connection with the functions carried out by Public Guardian under the Mental Capacity Act 2005 (c.9) (“the Act”)).

Regulation 8 provides that where the Court of Protection has appointed a deputy under section 16 of the Act the Public Guardian must determine the level of supervision required by section 58(1)(c) of the Act and the level of fee is payable accordingly. The three levels of supervision are type I (highest), type II (lower) and type III (minimal).

Regulation 12 makes an amendment to Form EP1G (Notice of Intention to Apply for Registration of an Enduring Power of Attorney) which forms Schedule 7 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (S.I. 2007/1253).

(8)

S.I. 2001/824, amended by S.I. 2002/833, 2004/1291 and 2006/653; there are other amending instruments but none is relevant.