Search Legislation

Mental Capacity Act 2005

 Help about what version

What Version

 Help about advanced features

Advanced Features

Changes over time for: SCHEDULE 1

 Help about opening options

Changes to legislation:

Mental Capacity Act 2005, SCHEDULE 1 is up to date with all changes known to be in force on or before 19 March 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

Close

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.

View outstanding changes

Changes and effects yet to be applied to Schedule 1:

Changes and effects yet to be applied to the whole Act associated Parts and Chapters:

Whole provisions yet to be inserted into this Act (including any effects on those provisions):

Section 9

SCHEDULE 1U.K.Lasting powers of attorney: formalities

This schedule has no associated Explanatory Notes

Part 1U.K.Making instruments

General requirements as to making instrumentsU.K.

1(1)An instrument is not made in accordance with this Schedule unless—U.K.

(a)it is in the prescribed form,

(b)it complies with paragraph 2, and

(c)any prescribed requirements in connection with its execution are satisfied.

(2)Regulations may make different provision according to whether—

(a)the instrument relates to personal welfare or to property and affairs (or to both);

(b)only one or more than one donee is to be appointed (and if more than one, whether jointly or jointly and severally).

(3)In this Schedule—

(a)prescribed” means prescribed by regulations, and

(b)regulations” means regulations made for the purposes of this Schedule by the Lord Chancellor.

Requirements as to content of instrumentsU.K.

2(1)The instrument must include—U.K.

(a)the prescribed information about the purpose of the instrument and the effect of a lasting power of attorney,

(b)a statement by the donor to the effect that he—

(i)has read the prescribed information or a prescribed part of it (or has had it read to him), and

(ii)intends the authority conferred under the instrument to include authority to make decisions on his behalf in circumstances where he no longer has capacity,

(c)a statement by the donor—

(i)naming a person or persons whom the donor wishes to be notified of any application for the registration of the instrument, or

(ii)stating that there are no persons whom he wishes to be notified of any such application,

(d)a statement by the donee (or, if more than one, each of them) to the effect that he—

(i)has read the prescribed information or a prescribed part of it (or has had it read to him), and

(ii)understands the duties imposed on a donee of a lasting power of attorney under sections 1 (the principles) and 4 (best interests), and

(e)a certificate by a person of a prescribed description that, in his opinion, at the time when the donor executes the instrument—

(i)the donor understands the purpose of the instrument and the scope of the authority conferred under it,

(ii)no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and

(iii)there is nothing else which would prevent a lasting power of attorney from being created by the instrument.

(2)Regulations may—

(a)prescribe a maximum number of named persons;

(b)provide that, where the instrument includes a statement under sub-paragraph (1)(c)(ii), two persons of a prescribed description must each give a certificate under sub-paragraph (1)(e).

(3)The persons who may be named persons do not include a person who is appointed as donee under the instrument.

(4)In this Schedule, “named person” means a person named under sub-paragraph (1)(c).

(5)A certificate under sub-paragraph (1)(e)—

(a)must be made in the prescribed form, and

(b)must include any prescribed information.

(6)The certificate may not be given by a person appointed as donee under the instrument.

Failure to comply with prescribed formU.K.

3(1)If an instrument differs in an immaterial respect in form or mode of expression from the prescribed form, it is to be treated by the Public Guardian as sufficient in point of form and expression.U.K.

(2)The court may declare that an instrument which is not in the prescribed form is to be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney.

Part 2U.K.Registration

Applications and procedure for registrationU.K.

4(1)An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney—U.K.

(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 [F1the general limit in a magistrates’ court] 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.

5U.K.Subject 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 requirementsU.K.

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.U.K.

(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.

7U.K.As 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.U.K.

(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.U.K.

(2)A notice under paragraph 6, 7 or 8 must include such information, if any, as may be prescribed.

Power to dispense with notification requirementsU.K.

10U.K.The 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 provisionU.K.

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.U.K.

(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 appointedU.K.

12(1)Sub-paragraph (2) applies if it appears to the Public Guardian that—U.K.

(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 personU.K.

13(1)Sub-paragraph (2) applies if a donee or a named person—U.K.

(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 donorU.K.

14(1)This paragraph applies if the donor—U.K.

(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 registrationU.K.

15U.K.Where 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 registrationU.K.

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—U.K.

(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.

Part 3U.K.Cancellation of registration and notification of severance

17(1)The Public Guardian must cancel the registration of an instrument as a lasting power of attorney on being satisfied that the power has been revoked—U.K.

(a)as a result of the donor's bankruptcy[F2or a debt relief order (under Part 7A of the Insolvency Act 1986) having been made in respect of the donor], or

(b)on the occurrence of an event mentioned in section 13(6)(a) to (d).

(2)If the Public Guardian cancels the registration of an instrument he must notify—

(a)the donor, and

(b)the donee or, if more than one, each of them.

18U.K.The court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if it—

(a)determines under section 22(2)(a) that a requirement for creating the power was not met,

(b)determines under section 22(2)(b) that the power has been revoked or has otherwise come to an end, or

(c)revokes the power under section 22(4)(b) (fraud etc.).

19(1)Sub-paragraph (2) applies if the court determines under section 23(1) that a lasting power of attorney contains a provision which—U.K.

(a)is ineffective as part of a lasting power of attorney, or

(b)prevents the instrument from operating as a valid lasting power of attorney.

(2)The court must—

(a)notify the Public Guardian that it has severed the provision, or

(b)direct him to cancel the registration of the instrument as a lasting power of attorney.

20U.K.On the cancellation of the registration of an instrument, the instrument and any office copies of it must be delivered up to the Public Guardian to be cancelled.

Part 4U.K.Records of alterations in registered powers

Partial revocation or suspension of power as a result of bankruptcyU.K.

21U.K.If in the case of a registered instrument it appears to the Public Guardian that under section 13 a lasting power of attorney is revoked, or suspended, in relation to the donor's property and affairs (but not in relation to other matters), the Public Guardian must attach to the instrument a note to that effect.

Termination of appointment of donee which does not revoke powerU.K.

22U.K.If in the case of a registered instrument it appears to the Public Guardian that an event has occurred—

(a)which has terminated the appointment of the donee, but

(b)which has not revoked the instrument,

the Public Guardian must attach to the instrument a note to that effect.

Replacement of doneeU.K.

23U.K.If in the case of a registered instrument it appears to the Public Guardian that the donee has been replaced under the terms of the instrument the Public Guardian must attach to the instrument a note to that effect.

Severance of ineffective provisionsU.K.

24U.K.If in the case of a registered instrument the court notifies the Public Guardian under paragraph 19(2)(a) that it has severed a provision of the instrument, the Public Guardian must attach to it a note to that effect.

Notification of alterationsU.K.

25U.K.If the Public Guardian attaches a note to an instrument under paragraph 21, 22, 23 or 24 he must give notice of the note to the donee or donees of the power (or, as the case may be, to the other donee or donees of the power).

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?

You have chosen to open Schedules only

The Schedules 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

Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

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

Timeline of Changes

This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

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