- Statutory Instrument 2007 No. 1253
The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations
© Crown Copyright 2007
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| Made | 16th April 2007 | ||
| Laid before Parliament | 17th April 2007 | ||
| Coming into force | 1st October 2007 |
| 1. | Citation and commencement |
| 2. | Interpretation |
| 3. | Minimal differences from forms prescribed in these Regulations |
| 4. | Computation of time |
| 5. | Forms for lasting powers of attorney |
| 6. | Maximum number of named persons |
| 7. | Requirement for two LPA certificates where instrument has no named persons |
| 8. | Persons who may provide an LPA certificate |
| 9. | Execution of instrument |
| 10. | Notice to be given by a person about to apply for registration of lasting power of attorney |
| 11. | Application for registration |
| 12. | Period to elapse before registration in cases not involving objection or defect |
| 13. | Notice of receipt of application for registration |
| 14. | Objection to registration: notice to Public Guardian |
| 15. | Objection to registration: application to the court |
| 16. | Notifying applicants of non-registration of lasting power of attorney |
| 17. | Notice to be given on registration of lasting power of attorney |
| 18. | Changes to instrument registered as lasting power of attorney |
| 19. | Loss or destruction of instrument registered as lasting power of attorney |
| 20. | Disclaimer of appointment by a donee of lasting power of attorney |
| 21. | Revocation by donor of lasting power of attorney |
| 22. | Revocation of a lasting power of attorney on death of donor |
| 23. | Notice of intention to apply for registration of enduring power of attorney |
| 24. | Application for registration |
| 25. | Notice of objection to registration |
| 26. | Notifying applicants of non-registration of enduring power of attorney |
| 27. | Registration of instrument creating an enduring power of attorney |
| 28. | Objection or revocation not applying to all joint and several attorneys |
| 29. | Loss or destruction of instrument registered as enduring power of attorney |
| 30. | Establishing and maintaining the registers |
| 31. | Disclosure of information on a register: search by the Public Guardian |
| 32. | Disclosure of additional information held by the Public Guardian |
| 33. | Persons required to give security for the discharge of their functions |
| 34. | Security given under regulation 33(2)(a): requirement for endorsement |
| 35. | Security given under regulation 33(2)(a): maintenance or replacement |
| 36. | Enforcement following court order of any endorsed security |
| 37. | Discharge of any endorsed security |
| 38. | Application for additional time to submit a report |
| 39. | Content of reports |
| 40. | Power to require final report on termination of appointment |
| 41. | Power to require information from deputies |
| 42. | Right of deputy to require review of decisions made by the Public Guardian |
| 43. | Applications to the Court of Protection |
| 44. | Visits by the Public Guardian or by Court of Protection Visitors at his direction |
| 45. | Functions in relation to persons carrying out specific transactions |
| 46. | Power to require information from donees of lasting power of attorney |
| 47. | Power to require information from attorneys under enduring power of attorney |
| 48. | Other functions in relation to enduring powers of attorney |
| SCHEDULE 1— | Form for instrument intended to create a Lasting Power of Attorney |
| SCHEDULE 2— | Notice of Intention to Apply for Registration of a Lasting Power of Attorney: LPA 001 |
| SCHEDULE 3— | Application to Register a Lasting Power of Attorney: LPA 002 |
| SCHEDULE 4— | Notice of Receipt of an Application to Register a Lasting Power of Attorney: LPA 003A and LPA 003B |
| SCHEDULE 5— | Notice of Registration of a Lasting Power of Attorney: LPA 004 |
| SCHEDULE 6— | Disclaimer by Donee of a Lasting Power of Attorney: LPA 005 |
| SCHEDULE 7— | Notice of Intention to Apply for Registration of an Enduring Power of Attorney |
| SCHEDULE 8— | Application to Register an Enduring Power of Attorney |
The Lord Chancellor makes the following Regulations in exercise of the powers conferred by sections 13(6)(a), 58(3) and 64(1) of, and Schedules 1 and 4 to, the Mental Capacity Act 2005[1].
Citation and commencement
1. —(1) These Regulations may be cited as the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007.
(2) These Regulations shall come into force on 1 October 2007.
Interpretation
2. —(1) In these Regulations—
- "the Act" means the Mental Capacity Act 2005;
- "court" means the Court of Protection;
- "LPA certificate", in relation to an instrument made with a view
to creating a lasting power of attorney, means the certificate which
is required to be included in the instrument by virtue of paragraph
2(1)(e) of Schedule 1 to the Act;
- "named person", in relation to an instrument made with a view to
creating a lasting power of attorney, means a person who is named in
the instrument as being a person to be notified of any application
for the registration of the instrument;
- "prescribed information", in relation to any instrument intended
to create a lasting power of attorney, means the information
contained in the form used for the instrument which appears under
the heading "prescribed information".
Minimal differences from forms prescribed in these
Regulations
3. —(1)
In these Regulations, any reference to a form—
- (a) in the case of a form set out in Schedules 1 to 7 to these
Regulations, is to be regarded as including a Welsh version of that
form; and
(b) in the case of a form set out in Schedules 2 to 7 to these Regulations, is to be regarded as also including—
- (i) a form to the same effect but which differs in an
immaterial respect in form or mode of expression;
(ii) a form to the same effect but with such variations as the circumstances may require or the court or the Public Guardian may approve; or
(iii) a Welsh version of a form within (i) or (ii).
Computation of time
4. —(1) This regulation shows how to calculate any period
of time which is specified in these
Regulations.
(2) A period of time
expressed as a number of days must be computed as clear
days.
(3) Where the specified period is
7 days or less, and would include a day which is not a business day,
that day does not count.
(4) When the
specified period for doing any act at the office of the Public
Guardian ends on a day on which the office is closed, that act will be
done in time if done on the next day on which the office is
open.
(5) In this regulation—
- "business day" means a day other than—
- (a) a Saturday, Sunday, Christmas Day or Good Friday;
or
(b) a bank holiday under the Banking and Financial Dealings Act 1971[2], in England and Wales; and
- "clear days" means that in computing the number of days—
- (a) the day on which the period begins, and
(b) if the end of the period is defined by reference to an event, the day on which that event occurs,
are not included.
Forms for lasting powers of attorney
5. The forms set out in Parts 1 and 2 of Schedule 1 to these Regulations are the forms which, in the circumstances to which they apply, are to be used for instruments intended to create a lasting power of attorney.
Maximum number of named persons
6. The maximum number of named persons that the donor of a lasting power of attorney may specify in the instrument intended to create the power is 5.
Requirement for two LPA certificates where instrument has no named persons
7. Where an instrument intended to create a lasting power of attorney includes a statement by the donor that there are no persons whom he wishes to be notified of any application for the registration of the instrument—
- (a) the instrument must include two LPA certificates;
and
(b) each certificate must be completed and signed by a different person.
Persons who may provide an LPA
certificate
8. —(1)
Subject to paragraph (3), the following persons may give an LPA
certificate—
- (a) a person chosen by the donor as being someone who has known
him personally for the period of at least two years which ends
immediately before the date on which that person signs the LPA
certificate;
(b) a person chosen by the donor who, on account of his professional skills and expertise, reasonably considers that he is competent to make the judgments necessary to certify the matters set out in paragraph (2)(1)(e) of Schedule 1 to the Act.
(2) The following are examples of persons
within paragraph (1)(b)—
- (a) a registered health care professional;
(b) a barrister, solicitor or advocate called or admitted in any part of the United Kingdom;
(c) a registered social worker; or
(d) an independent mental capacity advocate.
(3) A person is disqualified from giving an
LPA certificate in respect of any instrument intended to create a
lasting power of attorney if that person is—
- (a) a family member of the donor;
(b) a donee of that power;
(c) a donee of—
- (i) any other lasting power of attorney, or
(ii) an enduring power of attorney,
which has been executed by the donor (whether or not it has been
revoked);
(d) a family member of a donee within sub-paragraph
(b);
(e) a director or employee of a trust corporation acting
as a donee within sub-paragraph (b);
(f) a business partner
or employee of—
- (i) the donor, or
(ii) a donee within sub-paragraph (b);
(g) an owner, director, manager or employee of any care home in
which the donor is living when the instrument is executed;
or
(h) a family member of a person within sub-paragraph
(g).
(4) In this regulation—
- "care home" has the meaning given in section 3 of the Care
Standards Act 2000[3];
- "registered health care professional" means a person who is a
member of a profession regulated by a body mentioned in section
25(3) of the National Health Service Reform and Health Care
Professions Act 2002[4];
and
- "registered social worker" means a person registered as a social
worker in a register maintained by—
- (a) the General Social Care Council;
(b) the Care Council for Wales;
(c) the Scottish Social Services Council; or
(d) the Northern Ireland Social Care Council.
Execution of instrument
9. —(1) An instrument intended to create a lasting power of
attorney must be executed in accordance with this
regulation.
(2) The donor must read (or
have read to him) all the prescribed
information.
(3) As soon as reasonably
practicable after the steps required by paragraph (2) have been taken,
the donor must—
- (a) complete the provisions of Part A of the instrument that
apply to him (or direct another person to do so); and
(b) subject to paragraph (7), sign Part A of the instrument in the presence of a witness.
(4) As soon as reasonably practicable after
the steps required by paragraph (3) have been taken—
- (a) the person giving an LPA certificate, or
(b) if regulation 7 applies (two LPA certificates required), each of the persons giving a certificate,
must complete the LPA certificate at Part B of the instrument and
sign it.
(5) As soon as reasonably
practicable after the steps required by paragraph (4) have been
taken—
- (a) the donee, or
(b) if more than one, each of the donees,
must read (or have read to him) all the prescribed
information.
(6) As soon as reasonably
practicable after the steps required by paragraph (5) have been taken,
the donee or, if more than one, each of them—
- (a) must complete the provisions of Part C of the instrument
that apply to him (or direct another person to do so);
and
(b) subject to paragraph (7), must sign Part C of the instrument in the presence of a witness.
(7) If the instrument is to be signed by
any person at the direction of the donor, or at the direction of any
donee, the signature must be done in the presence of two
witnesses.
(8) For the purposes of this
regulation—
- (a) the donor may not witness any signature required for the
power;
(b) a donee may not witness any signature required for the power apart from that of another donee.
(9) A person witnessing a signature
must—
- (a) sign the instrument; and
(b) give his full name and address.
(10) Any reference in this regulation to a
person signing an instrument (however expressed) includes his signing
it by means of a mark made on the instrument at the appropriate
place.
Notice to be given by a person about to apply for registration of lasting power of attorney
10. Schedule 2 to these Regulations sets out the form of notice ("LPA 001") which must be given by a donor or donee who is about to make an application for the registration of an instrument intended to create a lasting power of attorney.
Application for registration
11. —(1) Schedule 3 to these Regulations sets out the form ("LPA 002") which must be used for making an application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney.
(2) Where the instrument to be registered which is sent with the application is neither—
- (a) the original instrument intended to create the power,
nor
(b) a certified copy of it,
the Public Guardian must not register the instrument unless the
court directs him to do so.
(3) In
paragraph (2) "a certified copy" means a photographic or other
facsimile copy which is certified as an accurate copy by—
- (a) the donor; or
(b) a solicitor or notary.
Period to elapse before registration in cases not involving
objection or defect
12. The period at the end of which the Public Guardian
must register an instrument in accordance with paragraph 5 of Schedule
1 to the Act is the period of 6 weeks beginning with—
- (a) the date on which the Public Guardian gave the notice or
notices under paragraph 7 or 8 of Schedule 1 to the Act of receipt
of an application for registration; or
(b) if notices were given on more than one date, the latest of those dates.
Notice of receipt of application for
registration
13.
—(1) Part 1 of Schedule 4 to these Regulations sets out the form of
notice ("LPA 003A") which the Public Guardian must give to the donee
(or donees) when the Public Guardian receives an application for the
registration of a lasting power of
attorney.
(2) Part 2 of Schedule 4 sets
out the form of notice ("LPA 003B") which the Public Guardian must
give to the donor when the Public Guardian receives such an
application.
(3) Where it appears to
the Public Guardian that there is good reason to do so, the Public
Guardian must also provide (or arrange for the provision of) an
explanation to the donor of—
- (a) the notice referred to in paragraph (2) and what the effect
of it is; and
(b) why it is being brought to his attention.
(4) Any information provided under
paragraph (3) must be provided—
- (a) to the donor personally; and
(b) in a way that is appropriate to the donor's circumstances (for example using simple language, visual aids or other appropriate means).
Objection to registration: notice to Public
Guardian
14. —(1)
This regulation deals with any objection to the registration of an
instrument as a lasting power of attorney which is to be made to the
Public Guardian.
(2) Where any
person—
- (a) is entitled to receive notice under paragraph 6, 7 or 8 of
Schedule 1 to the Act of an application for the registration of the
instrument, and
(b) wishes to object to registration on a ground set out in paragraph 13(1) of Schedule 1 to the Act,
he must do so before the end of the period of 5 weeks beginning
with the date on which the notice is
given.
(3) A notice of objection must
be given in writing, setting out—
- (a) the name and address of the objector;
(b) if different, the name and address of the donor of the power;
(c) if known, the name and address of the donee (or donees); and
(d) the ground for making the objection.
(4) The Public Guardian must notify the
objector as to whether he is satisfied that the ground of the
objection is established.
(5) At any
time after receiving the notice of objection and before giving the
notice required by paragraph (4), the Public Guardian may require the
objector to provide such further information, or produce such
documents, as the Public Guardian reasonably considers necessary to
enable him to determine whether the ground for making the objection is
established.
(6) Where—
- (a) the Public Guardian is satisfied that the ground of the
objection is established, but
(b) by virtue of section 13(7) of the Act, the instrument is not revoked,
the notice under paragraph (4) must contain a statement to that
effect.
(7) Nothing in this regulation
prevents an objector from making a further objection under paragraph
13 of Schedule 1 to the Act where—
- (a) the notice under paragraph (4) indicates that the Public
Guardian is not satisfied that the particular ground of objection to
which that notice relates is established; and
(b) the period specified in paragraph (2) has not expired.
Objection to registration: application to the
court
15. —(1) This
regulation deals with any objection to the registration of an
instrument as a lasting power of attorney which is to be made to the
court.
(2) The grounds for making an
application to the court are—
- (a) that one or more of the requirements for the creation of a
lasting power of attorney have not been met;
(b) that the power has been revoked, or has otherwise come to an end, on a ground other than the grounds set out in paragraph 13(1) of Schedule 1 to the Act;
(c) any of the grounds set out in paragraph (a) or (b) of section 22(3) of the Act.
(3) Where any person—
- (a) is entitled to receive notice under paragraph 6, 7 or 8 of
Schedule 1 to the Act of an application for the registration of the
instrument, and
(b) wishes to object to registration on one or more of the grounds set out in paragraph (2),
he must make an application to the court before the end of the
period of 5 weeks beginning with the date on which the notice is
given.
(4) The notice of an application
to the court, which a person making an objection to the court is
required to give to the Public Guardian under paragraph 13(3)(b)(ii)
of Schedule 1 to the Act, must be in writing.
Notifying
applicants of non-registration of lasting power of
attorney
16. Where
the Public Guardian is prevented from registering an instrument as a
lasting power of attorney by virtue of—
- (a) paragraph 11(1) of Schedule 1 to the Act (instrument not
made in accordance with Schedule),
(b) paragraph 12(2) of that Schedule (deputy already appointed),
(c) paragraph 13(2) of that Schedule (objection by donee or named person on grounds of bankruptcy, disclaimer, death etc),
(d) paragraph 14(2) of that Schedule (objection by donor), or
(e) regulation 11(2) of these Regulations (application for registration not accompanied by original instrument or certified copy),
he must notify the person (or persons) who applied for registration
of that fact.
Notice to be given on registration of lasting
power of attorney
17. —(1) Where the Public Guardian registers an instrument
as a lasting power of attorney, he must—
- (a) retain a copy of the instrument; and
(b) return to the person (or persons) who applied for registration the original instrument, or the certified copy of it, which accompanied the application for registration.
(2) Schedule 5 to these Regulations sets
out the form of notice ("LPA 004") which the Public Guardian must give
to the donor and donee (or donees) when the Public Guardian registers
an instrument.
(3) Where it appears to
the Public Guardian that there is good reason to do so, the Public
Guardian must also provide (or arrange for the provision of) an
explanation to the donor of—
- (a) the notice referred to in paragraph (2) and what the effect
of it is; and
(b) why it is being brought to his attention.
(4) Any information provided under
paragraph (3) must be provided—
- (a) to the donor personally; and
(b) in a way that is appropriate to the donor's circumstances (for example using simple language, visual aids or other appropriate means).
(5) "Certified copy" is to be construed in
accordance with regulation 11(3).
Changes to instrument registered as lasting power of attorney
18. —(1) This regulation applies in any case where any of paragraphs 21 to 24 of Schedule 1 to the Act requires the Public Guardian to attach a note to an instrument registered as a lasting power of attorney.
(2) The Public Guardian must give a notice to the donor and the donee (or, if more than one, each of them) requiring him to deliver to the Public Guardian—
- (a) the original of instrument which was sent to the Public
Guardian for registration;
(b) any office copy of that registered instrument; and
(c) any certified copy of that registered instrument.
(3) On receipt of the document, the Public
Guardian must—
- (a) attach the required note; and
(b) return the document to the person from whom it was obtained.
Loss or destruction of instrument registered as lasting power of
attorney
19. —(1)
This regulation applies where—
- (a) a person is required by or under the Act to deliver up to
the Public Guardian any of the following documents—
- (i) an instrument registered as a lasting power of
attorney;
(ii) an office copy of that registered instrument;
(iii) a certified copy of that registered instrument; and
(b) the document has been lost or destroyed.
(2) The person required to deliver up the
document must provide to the Public Guardian in writing—
- (a) if known, the date of the loss or destruction and the
circumstances in which it occurred;
(b) otherwise, a statement of when he last had the document in his possession.
Disclaimer of appointment by a donee of lasting power of
attorney
20. —(1)
Schedule 6 to these Regulations sets out the form ("LPA 005") which a
donee of an instrument registered as a lasting power of attorney must
use to disclaim his appointment as
donee.
(2) The donee must send—
- (a) the completed form to the donor; and
(b) a copy of it to—
- (i) the Public Guardian; and
(ii) any other donee who, for the time being, is appointed under the power.
Revocation by donor of lasting power of
attorney
21. —(1) A
donor who revokes a lasting power to attorney must—
- (a) notify the Public Guardian that he has done so;
and
(b) notify the donee (or, if more than one, each of them) of the revocation.
(2) Where the Public Guardian receives a
notice under paragraph (1)(a), he must cancel the registration of the
instrument creating the power if he is satisfied that the donor has
taken such steps as are necessary in law to revoke
it.
(3) The Public Guardian may require
the donor to provide such further information, or produce such
documents, as the Public Guardian reasonably considers necessary to
enable him to determine whether the steps necessary for revocation
have been taken.
(4) Where the Public
Guardian cancels the registration of the instrument he must
notify—
- (a) the donor; and
(b) the donee or, if more than one, each of them.
Revocation of a lasting power of attorney on death of
donor
22. —(1) The
Public Guardian must cancel the registration of an instrument as a
lasting power of attorney if he is satisfied that the power has been
revoked as a result of the donor's
death.
(2) Where the Public Guardian
cancels the registration of an instrument he must notify the donee or,
if more than one, each of them.
Notice of intention to apply for registration of enduring power of attorney
23. —(1) Schedule 7 to these Regulations sets out the form of notice ("EP1PG") which an attorney (or attorneys) under an enduring power of attorney must give of his intention to make an application for the registration of the instrument creating the power.
(2) In the case of the notice to be given to the donor, the attorney must also provide (or arrange for the provision of) an explanation to the donor of—
- (a) the notice and what the effect of it is; and
(b) why it is being brought to his attention.
(3) The information provided under
paragraph (2) must be provided—
- (a) to the donor personally; and
(b) in a way that is appropriate to the donor's circumstances (for example using simple language, visual aids or other appropriate means).
Application for registration
24. —(1) Schedule 8 to these Regulations sets out
the form ("EP2PG") which must be used for making an application to the
Public Guardian for the registration of an instrument creating an
enduring power of attorney.
(2) Where
the instrument to be registered which is sent with the application is
neither—
- (a) the original instrument creating the power, nor
(b) a certified copy of it,
the Public Guardian must not register the instrument unless the
court directs him to do so.
(3)
"Certified copy", in relation to an enduring power of attorney, means
a copy certified in accordance with section 3 of the Powers of
Attorney Act 1971[5].
Notice
of objection to registration
25. —(1) This regulation deals with any objection to the
registration of an instrument creating an enduring power of attorney
which is to be made to the Public Guardian under paragraph 13(4) of
Schedule 4 to the Act.
(2) A notice of
objection must be given in writing, setting out—
- (a) the name and address of the objector;
(b) if different, the name and address of the donor of the power;
(c) if known, the name and address of the attorney (or attorneys); and
(d) the ground for making the objection.
Notifying applicants of non-registration of enduring power of
attorney
26. Where
the Public Guardian is prevented from registering an instrument
creating an enduring power of attorney by virtue of—
- (a) paragraph 13(2) of Schedule 4 to the Act (deputy already
appointed),
(b) paragraph 13(5) of that Schedule (receipt by Public Guardian of valid notice of objection from person entitled to notice of application to register),
(c) paragraph 13(7) of that Schedule (Public Guardian required to undertake appropriate enquiries in certain circumstances), or
(d) regulation 24(2) of these Regulations (application for registration not accompanied by original instrument or certified copy),
he must notify the person (or persons) who applied for registration
of that fact.
Registration of instrument creating an
enduring power of attorney
27. —(1) Where the Public Guardian registers an instrument
creating an enduring power of attorney, he must—
- (a) retain a copy of the instrument; and
(b) return to the person (or persons) who applied for registration the original instrument, or the certified copy of it, which accompanied the application.
(2) "Certified copy" has the same meaning
as in regulation 24(3).
Objection or revocation not applying
to all joint and several attorneys
28. In a case within paragraph 20(6) or (7) of
Schedule 4 to the Act, the form of the entry to be made in the
register in respect of an instrument creating the enduring power of
attorney is a stamp bearing the following words (inserting the
information indicated, as appropriate)—
- " THE REGISTRATION OF THIS ENDURING POWER OF ATTORNEY IS
QUALIFIED AND EXTENDS TO THE APPOINTMENT OF . . . . . . . . . . .
. . . . . . . . ..(insert name of attorney(s) not affected by
ground(s) of objection or revocation) ONLY AS THE ATTORNEY(S) OF
. . . . . . . . . . . . . . . . . . . . (insert name of
donor)".
Loss or destruction of instrument registered as enduring power
of attorney
29. —(1)
This regulation applies where—
- (a) a person is required by or under the Act to deliver up to
the Public Guardian any of the following documents—
- (i) an instrument registered as an enduring power of
attorney;
(ii) an office copy of that registered instrument; or
(iii) a certified copy of that registered instrument; and
(b) the document has been lost or destroyed.
(2) The person who is required to deliver
up the document must provide to the Public Guardian in
writing—
- (a) if known, the date of the loss or destruction and the
circumstances in which it occurred;
(b) otherwise, a statement of when he last had the document in his possession.
Establishing and maintaining the registers
30. —(1) In this Part "the registers" means—
- (a) the register of lasting powers of attorney,
(b) the register of enduring powers of attorney, and
(c) the register of court orders appointing deputies,
which the Public Guardian must establish and
maintain.
(2) On each register the
Public Guardian may include—
- (a) such descriptions of information about a registered
instrument or a registered order as the Public Guardian considers
appropriate; and
(b) entries which relate to an instrument or order for which registration has been cancelled.
Disclosure of information on a register: search by the Public
Guardian
31. —(1)
Any person may, by an application made under paragraph (2), request
the Public Guardian to carry out a search of one or more of the
registers.
(2) An application
must—
- (a) state—
- (i) the register or registers to be searched;
(ii) the name of the person to whom the application relates; and
(iii) such other details about that person as the Public Guardian may require for the purpose of carrying out the search; and
(b) be accompanied by any fee provided for under section 58(4)(b)
of the Act.
(3) The Public Guardian may require the
applicant to provide such further information, or produce such
documents, as the Public Guardian reasonably considers necessary to
enable him to carry out the search.
(4)
As soon as reasonably practicable after receiving the
application—
- (a) the Public Guardian must notify the applicant of the result
of the search; and
(b) in the event that it reveals one or more entries on the register, the Public Guardian must disclose to the applicant all the information appearing on the register in respect of each entry.
Disclosure of additional information held by the Public
Guardian
32. —(1)
This regulation applies in any case where, as a result of a search
made under regulation 31, a person has obtained information relating
to a registered instrument or a registered order which confers
authority to make decisions about matters concerning a person
("P").
(2) On receipt of an application
made in accordance with paragraph (4), the Public Guardian may, if he
considers that there is good reason to do so, disclose to the
applicant such additional information as he considers
appropriate.
(3) "Additional
information" means any information relating to P—
- (a) which the Public Guardian has obtained in exercising the
functions conferred on him under the Act; but
(b) which does not appear on the register.
(4) An application must state—
- (a) the name of P;
(b) the reasons for making the application; and
(c) what steps, if any, the applicant has taken to obtain the information from P.
(5) The Public Guardian may require the
applicant to provide such further information, or produce such
documents, as the Public Guardian reasonably considers necessary to
enable him to determine the
application.
(6) In determining whether
to disclose any additional information to P, the Public Guardian must,
in particular, have regard to—
- (a) the connection between P and the applicant;
(b) the reasons for requesting the information (in particular, why the information cannot or should not be obtained directly from P);
(c) the benefit to P, or any detriment he may suffer, if a disclosure is made; and
(d) any detriment that another person may suffer if a disclosure is made.
Persons required to give security for the discharge of their
functions
33. —(1)
This regulation applies in any case where the court orders a person
("S") to give to the Public Guardian security for the discharge of his
functions.
(2) The security must be
given by S—
- (a) by means of a bond which is entered into in accordance with
regulation 34; or
(b) in such other manner as the court may direct.
(3) For the purposes of paragraph (2)(a), S
complies with the requirement to give the security only if—
- (a) the endorsement required by regulation 34(2) has been
provided; and
(b) the person who provided it has notified the Public Guardian of that fact.
(4) For the purposes of paragraph (2)(b), S
complies with the requirement to give the security—
- (a) in any case where the court directs that any other
endorsement must be provided, only if—
- (i) that endorsement has been provided; and
(ii) the person who provided it has notified the Public Guardian of that fact;
(b) in any case where the court directs that any other
requirements must be met in relation to the giving of the security,
only if the Public Guardian is satisfied that those other
requirements have been met.
Security given under regulation 33(2)(a): requirement for
endorsement
34. —(1)
This regulation has effect for the purposes of regulation
33(2)(a).
(2) A bond is entered into in
accordance with this regulation only if it is endorsed by—
- (a) an authorised insurance company; or
(b) an authorised deposit-taker.
(3) A person may enter into the bond
under—
- (a) arrangements made by the Public Guardian; or
(b) other arrangements which are made by the person entering into the bond or on his behalf.
(4) The Public Guardian may make
arrangements with any person specified in paragraph (2) with a view to
facilitating the provision by them of bonds which persons required to
give security to the Public Guardian may enter
into.
(5) In this regulation—
- "authorised insurance company" means—
- (a) a person who has permission under Part 4 of the Financial
Services and Markets Act 2000[6] to
effect or carry out contracts of insurance;
(b) an EEA firm of the kind mentioned in paragraph 5(d) of Schedule 3 to that Act, which has permission under paragraph 15 of that Schedule to effect or carry out contracts of insurance;
(c) a person who carries on insurance market activity (within the meaning given in section 316(3) of that Act); and
- "authorised deposit-taker" means—
- (a) a person who has permission under Part 4 of the Financial
Services and Markets Act 2000 to accept deposits;
(b) an EEA firm of the kind mentioned in paragraph 5(d) of Schedule 3 to that Act, which has permission under paragraph 15 of that Schedule to accept deposits.
(6) The definitions of "authorised
insurance company" and "authorised deposit-taker" must be read
with—
- (a) section 22 of the Financial Services and Markets Act
2000;
(b) any relevant order[7] under that section; and
(c) Schedule 2 to that Act.
Security given under regulation 33(2)(a): maintenance or
replacement
35. —(1)
This regulation applies to any security given under regulation
33(2)(a).
(2) At such times or at such
intervals as the Public Guardian may direct by notice in writing, any
person ("S") who has given the security must satisfy the Public
Guardian that any premiums payable in respect of it have been
paid.
(3) Where S proposes to replace a
security already given by him, the new security is not to be regarded
as having been given until the Public Guardian is satisfied
that—
- (a) the requirements set out in sub-paragraphs (a) and (b) of
regulation 33(3) have been met in relation to it; and
(b) no payment is due from S in connection with the discharge of his functions.
Enforcement following court order of any endorsed
security
36. —(1)
This regulation applies to any security given to the Public Guardian
in respect of which an endorsement has been
provided.
(2) Where the court orders
the enforcement of the security, the Public Guardian must—
- (a) notify any person who endorsed the security of the contents
of the order; and
(b) notify the court when payment has been made of the amount secured.
Discharge of any endorsed
security
37. —(1)
This regulation applies to any security given by a person ("S") to the
Public Guardian in respect of which an endorsement has been
provided.
(2) The security may be
discharged if the court makes an order discharging
it.
(3) In any other case, the security
may not be discharged until the end of the period of 7 years
commencing with whichever of the following dates first occurs—
- (a) if the person on whose behalf S was appointed to act dies,
the date of his death;
(b) if S dies, the date of his death;
(c) 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;
(d) 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.
(4) For the purposes of paragraph (3), if a
person takes any step with a view to discharging the security before
the end of the period specified in that paragraph, the security is to
be treated for all purposes as if it were still in place.
Application for additional time to submit a report
38. —(1) This regulation applies where the court requires a deputy to submit a report to the Public Guardian and specifies a time or interval for it to be submitted.
(2) A deputy may apply to the Public Guardian requesting more time for submitting a particular report.
(3) An application must—
- (a) state the reason for requesting more time; and
(b) contain or be accompanied by such information as the Public Guardian may reasonably require to determine the application.
(4) In response to an application, the
Public Guardian may, if he considers it appropriate to do so,
undertake that he will not take steps to secure performance of the
deputy's duty to submit the report at the relevant time on the
condition that the report is submitted on or before such later date as
he may specify.
Content of
reports
39. —(1) Any
report which the court requires a deputy to submit to the Public
Guardian must include such material as the court may
direct.
(2) The report must also
contain or be accompanied by—
- (a) specified information or information of a specified
description; or
(b) specified documents or documents of a specified description.
(3) But paragraph (2)—
- (a) extends only to information or documents which are
reasonably required in connection with the exercise by the Public
Guardian of functions conferred on him under the Act; and
(b) is subject to paragraph (1) and to any other directions given by the court.
(4) Where powers as respects a person's
property and affairs are conferred on a deputy under section 16 of the
Act, the information specified by the Public Guardian under paragraph
(2) may include accounts which—
- (a) deal with specified matters; and
(b) are provided in a specified form.
(5) The Public Guardian may
require—
- (a) any information provided to be verified in such manner,
or
(b) any document produced to be authenticated in such manner,
as he may reasonably require.
(6)
"Specified" means specified in a notice in writing given to the deputy
by the Public Guardian.
Power to require final report on
termination of appointment
40. —(1) This regulation applies where—
- (a) the person on whose behalf a deputy was appointed to act has
died;
(b) the deputy has died;
(c) the court has made an order discharging the deputy; or
(d) the deputy otherwise ceases to be under a duty to discharge the functions to which his appointment relates.
(2) The Public Guardian may require the
deputy (or, in the case of the deputy's death, his personal
representatives) to submit a final report on the discharge of his
functions.
(3) A final report must be
submitted—
- (a) before the end of such reasonable period as may be
specified; and
(b) at such place as may be specified.
(4) The Public Guardian must consider the
final report, together with any other information that he may have
relating to the discharge by the deputy of his
functions.
(5) Where the Public
Guardian is dissatisfied with any aspect of the final report he may
apply to the court for an appropriate remedy (including enforcement of
security given by the deputy).
(6)
"Specified" means specified in a notice in writing given to the deputy
or his personal representatives by the Public
Guardian.
Power to require information from
deputies
41. —(1)
This regulation applies in any case where—
- (a) the Public Guardian has received representations (including
complaints) about—
- (i) the way in which a deputy is exercising his powers;
or
(ii) any failure to exercise them; or
(b) it appears to the Public Guardian that there are other
circumstances which—
- (i) give rise to concerns about, or dissatisfaction with, the
conduct of the deputy (including any failure to act);
or
(ii) otherwise constitute good reason to seek information about the deputy's discharge of his functions.
(2) The Public Guardian may require the
deputy—
- (a) to provide specified information or information of a
specified description; or
(b) to produce specified documents or documents of a specified description.
(3) The information or documents must be
provided or produced—
- (a) before the end of such reasonable period as may be
specified; and
(b) at such place as may be specified.
(4) The Public Guardian may
require—
- (a) any information provided to be verified in such manner,
or
(b) any document produced to be authenticated in such manner,
as he may reasonably require.
(5)
"Specified" means specified in a notice in writing given to the deputy
by the Public Guardian.
Right of deputy to require review of
decisions made by the Public Guardian
42. —(1) A deputy may require the Public Guardian to
reconsider any decision he has made in relation to the
deputy.
(2) The right under paragraph
(1) is exercisable by giving notice of exercise of the right to the
Public Guardian before the end of the period of 14 days beginning with
the date on which notice of the decision is given to the
deputy.
(3) The notice of exercise of
the right must—
- (a) state the grounds on which reconsideration is required;
and
(b) contain or be accompanied by any relevant information or documents.
(4) At any time after receiving the notice
and before reconsidering the decision to which it relates, the Public
Guardian may require the deputy to provide him with such further
information, or to produce such documents, as he reasonably considers
necessary to enable him to reconsider the
matter.
(5) The Public Guardian must
give to the deputy—
- (a) written notice of his decision on reconsideration,
and
(b) if he upholds the previous decision, a statement of his reasons.
Applications to the Court of
Protection
43. The
Public Guardian has the function of making applications to the court
in connection with his functions under the Act in such circumstances
as he considers it necessary or appropriate to do so.
Visits
by the Public Guardian or by Court of Protection Visitors at his
direction
44. —(1)
This regulation applies where the Public Guardian visits, or directs a
Court of Protection Visitor to visit, any person under any provision
of the Act or these Regulations.
(2)
The Public Guardian must notify (or make arrangements to notify) the
person to be visited of—
- (a) the date or dates on which it is proposed that the visit
will take place;
(b) to the extent that it is practicable to do so, any specific matters likely to be covered in the course of the visit; and
(c) any proposal to inform any other person that the visit is to take place.
(3) Where the visit is to be carried out by
a Court of Protection Visitor—
- (a) the Public Guardian may—
- (i) give such directions to the Visitor, and
(ii) provide him with such information concerning the person to be visited,
as the Public Guardian considers necessary for the purposes of
enabling the visit to take place and the Visitor to prepare any
report the Public Guardian may require; and
(b) the Visitor
must seek to carry out the visit and take all reasonable steps to
obtain such other information as he considers necessary for the
purpose of preparing a report.
(4) A Court of Protection Visitor must
submit any report requested by the Public Guardian in accordance with
any timetable specified by the Public
Guardian.
(5) If he considers it
appropriate to do so, the Public Guardian may, in relation to any
person interviewed in the course of preparing a report—
- (a) disclose the report to him; and
(b) invite him to comment on it.
Functions in relation to persons carrying out specific
transactions
45.
—(1) This regulation applies where, in accordance with an order made
under section 16(2)(a) of the Act, a person ("T") has been authorised
to carry out any transaction for a person who lacks
capacity.
(2) The Public Guardian has
the functions of—
- (a) receiving any reports from T which the court may
require;
(b) dealing with representations (including complaints) about—
- (i) the way in which the transaction has been or is being
carried out; or
(ii) any failure to carry it out.
(3) Regulations 38 to 41 have effect in
relation to T as they have effect in relation a
deputy.
Power to require information from donees of lasting
power of attorney
46. —(1) This regulation applies where it appears to the
Public Guardian that there are circumstances suggesting that the donee
of a lasting power of attorney may—
- (a) have behaved, or may be behaving, in a way that contravenes
his authority or is not in the best interests of the donor of the
power,
(b) be proposing to behave in a way that would contravene that authority or would not be in the donor's best interests, or
(c) have failed to comply with the requirements of an order made, or directions given, by the court.
(2) The Public Guardian may require the
donee—
- (a) to provide specified information or information of a
specified description; or
(b) to produce specified documents or documents of a specified description.
(3) The information or documents must be
provided or produced—
- (a) before the end of such reasonable period as may be
specified; and
(b) at such place as may be specified.
(4) The Public Guardian may
require—
- (a) any information provided to be verified in such manner,
or
(b) any document produced to be authenticated in such manner,
as he may reasonably require.
(5)
"Specified" means specified in a notice in writing given to the donee
by the Public Guardian.
Power to require information from
attorneys under enduring power of
attorney
47. —(1)
This regulation applies where it appears to the Public Guardian that
there are circumstances suggesting that, having regard to all the
circumstances (and in particular the attorney's relationship to or
connection with the donor) the attorney under a registered enduring
power of attorney may be unsuitable to be the donor's
attorney.
(2) The Public Guardian may
require the attorney—
- (a) to provide specified information or information of a
specified description; or
(b) to produce specified documents or documents of a specified description.
(3) The information or documents must be
provided or produced—
- (a) before the end of such reasonable period as may be
specified; and
(b) at such place as may be specified.
(4) The Public Guardian may
require—
- (a) any information provided to be verified in such manner,
or
(b) any document produced to be authenticated in such manner,
as he may reasonably require.
(5)
"Specified" means specified in a notice in writing given to the
attorney by the Public Guardian.
Other functions in relation
to enduring powers of attorney
48. The Public Guardian has the following
functions—
- (a) directing a Court of Protection Visitor—
- (i) to visit an attorney under a registered enduring power of
attorney, or
(ii) to visit the donor of a registered enduring power of attorney,
and to make a report to the Public Guardian on such matters as he
may direct;
(b) dealing with representations (including
complaints) about the way in which an attorney under a registered
enduring power of attorney is exercising his powers.
Signed by authority of the Lord
Chancellor.
Cathy Ashton,
Parliamentary
Under-Secretary of State, Department for Constitutional
Affairs
16th April 2007
Part 1: Form for instrument intended to create a property and affairs Lasting Power of Attorney
Part 2: Form for instrument intended to create a personal welfare Lasting Power of Attorney
Part 1: Notice to an Attorney of Receipt of an Application to Register a Lasting Power of Attorney
Part 2: Notice to Donor of Receipt of an Application to Register a Lasting Power of Attorney
(This note is not part of the Regulations)
These Regulations supplement the requirements set out in Schedule 1 to the Mental Capacity Act 2005 (c. 9) ("the Act") which apply to the making and registration of lasting powers of attorney and the requirements set out in Schedule 4 to the Act which apply to the registration of enduring powers or attorney. The Regulations also confer functions on the Public Guardian and make other provision in connection with functions conferred on him by the Act or by these Regulations.
Part 1 of the Regulations is general and contains a number of definitions and interpretative provisions.
Part 2 of, and Schedules 1 to 6 to, the Regulations deal with lasting powers of attorney. Under section 9(2)(b) of the Act, a lasting power of attorney is not created unless it has (amongst other things) been made and registered in accordance with Schedule 1 to the Act. Regulation 5 (and Schedule 1) set out the forms of instruments to be used to make a lasting power of attorney. A different form must be used according to whether the instrument is intended to confer authority to make decisions about the donor's personal welfare, or about his property and affairs. Regulations 6 to 8 make detailed provision about the content of the instrument. Regulation 9 specifies the steps that must be taken to execute the instrument and the sequence in which those steps must be taken. Regulations 10 to 17 make provision about the procedure for registering an instrument as a lasting power of attorney, and Schedules 2 to 5 set out the application form and the form of notices to be used at different stages of the process. There are also certain other requirements specified which relate to the registration process.
Regulations 18 to 22 contain a number of miscellaneous provisions that apply to instruments which have been registered as lasting powers of attorney. These provisions specify steps to be taken if an instrument is changed, revoked, lost or destroyed. Regulation 20 (and Schedule 6) set out the form to be used by the donee of a lasting power when he wishes to disclaim his appointment.
Part 3 of, and Schedules 7 and 8 to, the Regulations deal with enduring powers of attorney. No new enduring power of attorney may be created after the commencement of section 66(1)(b) of the Act, but Schedules 4 and 5 to the Act apply to any power that was created before then. Regulation 23 (and Schedule 7) set out the form of notice to be given to the donor, and to his relatives, when an attorney under an enduring power intends to apply for registration. Regulation 23 also requires that the notice be given to the donor personally, together with an explanation of its effect. Regulations 24 to 28 (and Schedule 8) specify certain other requirements applying to the registration process and regulation 29 specifies steps to be taken if an instrument creating an enduring power of attorney is lost or destroyed after it has been registered.
Part 4 of the Regulations confers a number of specific functions on the Public Guardian. It also makes provision in connection with functions conferred on him by the Act or by these Regulations.
Additional functions are conferred by regulations 43, 45 and 48. Regulation 43 deals with the making of applications to the Court of Protection, regulation 45 sets out functions in relation to persons who are authorised to carry out a particular transaction and regulation 48 sets out functions in relation to enduring powers of attorney.
There are also provisions relating to the registers which the Public Guardian is required to maintain under the Act (regulations 30 to 32); relating to the giving of any security and the replacement, maintenance, enforcement or discharge of a security which has been endorsed (regulations 33 to 37); relating to the information that a deputy appointed by the Court of Protection must give to the Public Guardian (regulations 38 to 41); and relating to the review of a decision made by the Public Guardian in relation to a deputy (regulation 42). Regulations 44, 46 and 47 make provision in connection with a number of other areas where the Public Guardian has functions, including the requirements to be met when visits on any person are carried out by, or at the direction of, the Public Guardian (regulation 48).
Notes:
[1] 2005 c.9. Paragraph 1(3) of Schedule 1 is cited because of the meaning there given to "prescribed" and "regulations".back
[7] S.I. 2001/544, as amended by S.I. 2001/3544, 2002/682, 1310, 1776 and 1777, 2003/1475, 1476 and 2822, 2004/1610 and 2737, 2005/593, 1518 and 2967 and 2006/1969, 2383 and 3221.back
ISBN 978 0 11 076816 8