Powers of Attorney Act 2023

2023 Chapter 42

An Act to make provision about lasting powers of attorney; to make provision about proof of instruments creating powers of attorney; and for connected purposes.

Enacted [18th September 2023]

Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Lasting powers of attorney¶

^I11 Lasting powers of attorney¶

The Schedule makes provision in relation to lasting powers of attorney.

Certifying copies of power of attorney¶

^I152 Certifying copies of power of attorney¶

1 Section 3 of the Powers of Attorney Act 1971 is amended as follows.

2 In subsection (1)(b), after “authorised person” insert “, chartered legal executive”.

3 After subsection (3) insert—

General provisions¶

^I23 Extent, commencement and short title¶

1 This Act extends to England and Wales only, subject to subsection (2).

2 The following provisions extend to England and Wales, Scotland and Northern Ireland—

a section 2;

b this section;

c paragraph 8(a) and (b) of the Schedule.

3 This section comes into force on the day on which this Act is passed.

4 Section 2 comes into force at the end of the period of two months beginning with the day on which this Act is passed.

5 The remaining provisions of this Act come into force on such day or days as the Lord Chancellor may by regulations made by statutory instrument appoint.

6 The regulations—

a may make transitional, transitory or saving provision, and

b may make different provision for different purposes.

7 This Act may be cited as the Powers of Attorney Act 2023.

Schedule ¶

Lasting powers of attorney

Section 1

Part 1 Registration of lasting powers of attorney¶

Introduction¶

^I31 Schedule 1 to the Mental Capacity Act 2005 (lasting powers of attorney: formalities) is amended as follows.

Application for registration of lasting power of attorney¶

^I42 In paragraph 4—

a in sub-paragraph (1)(a), after “made” insert “by the donor”;

b omit sub-paragraph (2);

c for sub-paragraph (3) substitute—

^I53 After that paragraph insert—

Notifications¶

^I64

1 Omit paragraph 6.

2 For paragraph 7 substitute—

3 Omit paragraph 8.

Exclusion of notification requirements¶

^I75 For paragraph 10 and the italic heading before it substitute—

Identification requirements¶

^I86 After paragraph 10 insert—

Objections to registration¶

^I97

1 In paragraph 13—

a for sub-paragraph (3)(b) substitute—

;

b for sub-paragraph (4) substitute—

2 After that paragraph insert—

13A Objection by third party

1 This paragraph applies where—

a an application has been made under paragraph 4 for the registration of an instrument (and at the time when the notice mentioned in paragraph (b) is given that application has not been determined),

b a third party has given the Public Guardian notice of an objection on a relevant ground to the registration of the instrument (“the notice of objection”), and

c that notice was given after the Public Guardian was first notified in a prescribed manner by (or on behalf of) the donor of the donor’s intention to make the application mentioned in paragraph (a).

2 In sub-paragraph (1) “on a relevant ground” means—

a on the ground that an event mentioned in section 13(3) or (6)(a) to (d) has occurred which has revoked the instrument, or

b on a prescribed ground.

3 Where the notice of objection is given on the ground within sub-paragraph (2)(a) and the Public Guardian is satisfied that the ground for making the objection is established, the Public Guardian must not register the instrument unless the court, on the application of the donor or the donee (or, if more than one, any of them)—

a is satisfied that the ground is not established, and

b directs the Public Guardian to register the instrument.

4 Where the notice of objection is given on a ground within sub-paragraph (2)(b) the Public Guardian must not register the instrument unless—

a the Public Guardian is satisfied that no evidence has been provided which reasonably supports the making of the objection on that ground, or

b the court, on the application of the donor or the donee (or, if more than one, any of them) directs the Public Guardian to register the instrument.

5 In this paragraph “third party” means a person who is not the donor, a donee or a named person.

Evidence of registration¶

^I108 In paragraph 16—

a in sub-paragraph (1), in the words before paragraph (a), after “Schedule” insert “before the day on which paragraph 8(a) of the Schedule to the Powers of Attorney Act 2022 comes into force”;

b after sub-paragraph (1) insert—

;

c in sub-paragraph (2), for “Sub-paragraph (1) is” substitute “Sub-paragraphs (1) and (1A) are”.

Part 2 Minor and consequential amendments¶

^I119 The Mental Capacity Act 2005 is amended as follows.

^I1210 In section 58(4) (functions of the Public Guardian), after paragraph (c) insert—

^I1311 In section 65 (rules, regulations and orders), in subsection (1)(c), after “cases” insert “or purposes”.

^I1412

1 Schedule 1 is amended as follows.

2 In paragraph 5, for “11 to 14” substitute “10A to 13A”.

3 In paragraph 9—

a omit sub-paragraph (1);

b in sub-paragraph (2), for “6, 7 or 8” substitute “7”.

4 In paragraph 11(1)—

a after “If” insert “, at the end of the period mentioned in paragraph 5,”;

b for “an instrument accompanying an application under paragraph 4” substitute “the instrument to which an application under paragraph 4 relates”.

5 In paragraph 13—

a in sub-paragraph (1)(a), for “6, 7 or 8” substitute “7”;

b in sub-paragraph (2), in the words before paragraph (a), for “person applying for the registration” substitute “donor or the donee (or, if more than one, any of them)”;

c in sub-paragraph (3)(a), for “6, 7 or 8” substitute “7”.

6 Omit paragraph 14 and the italic heading before it.

Footnotes

I1
S. 1 not in force at Royal Assent, see s. 3(5)
I2
S. 3 in force at Royal Assent, see s. 3(3)
I3
Sch. para. 1 not in force at Royal Assent, see s. 3(5)
I4
Sch. para. 2 not in force at Royal Assent, see s. 3(5)
I5
Sch. para. 3 not in force at Royal Assent, see s. 3(5)
I6
Sch. para. 4 not in force at Royal Assent, see s. 3(5)
I7
Sch. para. 5 not in force at Royal Assent, see s. 3(5)
I8
Sch. para. 6 not in force at Royal Assent, see s. 3(5)
I9
Sch. para. 7 not in force at Royal Assent, see s. 3(5)
I10
Sch. para. 8 not in force at Royal Assent, see s. 3(5)
I11
Sch. para. 9 not in force at Royal Assent, see s. 3(5)
I12
Sch. para. 10 not in force at Royal Assent, see s. 3(5)
I13
Sch. para. 11 not in force at Royal Assent, see s. 3(5)
I14
Sch. para. 12 not in force at Royal Assent, see s. 3(5)
I15
S. 2 in force at 18.11.2023, see s. 3(4)