Volume 2

Draft Mental Incapacity Bill / presented to Parliament by the Secretary of State for Constitutional Affairs.

  • Great Britain. Department for Constitutional Affairs.
Date:
2003
Catalogue details

Licence: Open Government Licence

Credit: Draft Mental Incapacity Bill / presented to Parliament by the Secretary of State for Constitutional Affairs. Source: Wellcome Collection.

    42/64 (page 40)
    Provisions Applying to Existing Ending Powers of Attorney This Schedule has effect in relation to enduring powers of attorney created before the implementation of the Mental Incapacity Bill. It repeats, with minor amendments, the effect of the Enduring Powers of Attorney Act 1985, which is revoked. Part 1: Enduring Powers of Attorney Part 1 sets out the main elements of enduring powers of attorney (EPAs). EPAs are not revoked by any subsequent mental incapacity of the donor of the power, unlike ordinary powers of attorney. Such a power is only created if it is in the prescribed form and complies with the provisions as outlined in paragraph 2 of this Part. This Part also outlines the scope of EPAs. They can give general power to the donee in relation to the donor’s property and affairs or they can give more specific powers in relation to particular elements of the donor’s affairs. Both general and specific powers may be subject to conditions and restrictions as set out by the donor. A donee may from time to time make gifts from the donor’s property to people connected to the donor (including himself) and to any charity the donor may have been expected to make gifts to. This is subject to any conditions or restrictions as mentioned above and also to the reasonableness of such gifts with regard to the size of the donor’s estate. Part 2: Actual or Impending Incapacity of Donor This Part outlines the steps which should be taken on the actual or impending incapacity of the donor. Once the attorney believes that the donor is or is becoming mentally incapacitated he or she must immediately make an application to the Public Guardian to register the power. Part 3 deals with the steps which must be taken before the application to the Public Guardian is made. The application for registration must be made on the prescribed form and must contain the appropriate statements as prescribed by regulations. If an application is made to the Public Guardian which complies with these provisions and those outlined in Part 3, the Public Guardian will register the document. In certain situations the court may direct the Public Guardian to register a document without notice having been given on specified persons as required in Part 3. Persons notified may file written objections to registration within 4 weeks of such notification. Any other person may file written objections within 5 weeks. The basis upon which objections can be made are also given. These include such grounds that fraud or undue pressure were used to persuade the donor to make the power or that the attorney is unsuitable and so on. If the court is satisfied with any objection raised the document will not be registered. Part 3: Notification Prior to Registration Part 3 sets out the steps which should be taken by the attorney before making an application to the Public Guardian to register the power. The attorney must give notice of his intention to register the power to all those entitled to receive notice. These people can include, the donor’s husband or wife, the