GENERAL POWERS OF COURT AND APPOINTMENT OF DEPUTIES
—(1) The court may make declarations as to —
whether a person has or lacks capacity to make a decision specified in the declaration;
whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
(2) In subsection (1)(c), “act” includes an omission and a course of conduct.
[UK MCA 2005, s. 15]
—(1) This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning —
P’s personal welfare; or
P’s property and affairs.
(2) The court may —
by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters; or
appoint a person (a “deputy”) to make decisions on P’s behalf in relation to the matter or matters.
(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 3 (the principles) and 6 (best interests).
(4) When deciding whether it is in P’s best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 6) to the principles that —
a decision by the court is to be preferred to the appointment of a deputy to make a decision; and
the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.
(5) Subject to section 25, the court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).
(6) Without prejudice to section 6, the court may make the order, give the directions or make the appointment on such terms as it considers are in P’s best interests, even though no application is before the court for an order, directions or an appointment on those terms.
(7) An order of the court may be varied or discharged by a subsequent order.
(8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy —
has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests; or
proposes to behave in a way that would contravene that authority or would not be in P’s best interests.
[UK MCA 2005, s. 16]
—(1) Subject to subsection (2), the powers under section 20 as respects any matter may be exercised even though P has not attained the age of 21 years, if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when he attains the age of 21 years.
(2) When deciding whether it is in P’s best interests to appoint a deputy to make decisions on P’s behalf, the court must have regard (in addition to the matters mentioned in section 20) to the principle that an appointment of the parents or guardian of P as deputy is to be preferred to the appointment of any other person as deputy.
—(1) The powers under section 20 as respects P’s personal welfare include —
deciding where P is to live;
deciding what contact, if any, P is to have with any specified person;
making an order prohibiting a named person from having contact with P;
subject to subsection (3), giving or refusing consent to the carrying out or continuation of a treatment (including the conduct of a clinical trial) by a person providing health care for P;
giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.
(2) Subsection (1) is —
subject to section 25 (restrictions on deputies); and
without prejudice to any other order or decision which may be made by the court or deputy under any other written law.
—(1) Subject to this section, the powers under section 20 as respects P’s property and affairs include —
the control and management of P’s property;
the sale, exchange, charging, gift or other disposition of P’s property;
the acquisition of property in P’s name or on P’s behalf;
the carrying on, on P’s behalf, of any profession, trade or business;
the taking of a decision which will have the effect of dissolving a partnership of which P is a member;
the carrying out of any contract entered into by P;
the discharge of P’s debts and of any of P’s obligations, whether legally enforceable or not;
the settlement of any of P’s property by way of trust, whether for P’s benefit or for the benefit of others;
the execution for P of a will;
where any such memorandum has been executed, or any nomination has been made under section 25(1) of that Act, by P or by the court on P’s behalf, the revoking, on P’s behalf, of that memorandum or nomination, as the case may be;
the maintenance, education, benefit and advancement of P’s spouse, P’s parent, a child of P below 21 years of age or an intellectually disabled child of P;
the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee under a trust;
the conduct of legal proceedings in P’s name or on P’s behalf.
(2) Without prejudice to section 20(3), the court, in making an order for the disposition or settlement of P’s property under subsection (1)(b) or (h), must have regard to the principle in section 6(6).
(3) No will may be made under subsection (1)(i) at a time when P has not attained the age of 21 years.
(4) The provisions of the Second Schedule supplement the provisions of this section.
—(1) A deputy appointed by the court must be —
an individual who has attained the age of 21 years; or
as respects powers in relation to property and affairs, either such an individual, or a person other than an individual who is within a class of persons prescribed as being eligible to be appointed as donees.
(2) The court may appoint an individual as a deputy by appointing the holder for the time being of a specified office or position.
(3) A person may not be appointed as a deputy without his consent.
(4) The court may appoint 2 or more deputies to act —
jointly and severally; or
jointly in respect of some matters and jointly and severally in respect of others.
(5) When appointing a deputy, the court may at the same time appoint one or more other persons to succeed him (“successor deputy”) —
in such circumstances, or on the happening of such events, as may be specified by the court; and
for such period as may be specified by the court.
(6) In the case of an application to which section 21 applies, the court shall have regard to the wishes of the parents or guardian of P on the choice of the successor deputy.
(7) A deputy is to be treated as P’s agent in relation to anything done or decided by him within the scope of his appointment and in accordance with this Part.
(8) The deputy is entitled —
to be reimbursed out of P’s property for his reasonable expenses in discharging his functions; and
if the court so directs when appointing him, to remuneration out of P’s property for discharging them.
(9) The court may confer on a deputy powers to —
take possession or control of all or any specified part of P’s property;
exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.
(10) The court may require a deputy —
to give to the Public Guardian such security as the court thinks fit for the due discharge of his functions; and
to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.
[UK MCA 2005, s. 19]
—(1) A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter.
(2) Nothing in section 20(5) or 22 permits a deputy to be given power —
to prohibit a named person from having contact with P; or
to direct a person responsible for P’s health care to allow a different person to take over that responsibility.
(3) A deputy may not be given powers with respect to the —
disposition of P’s property by making gifts;
execution for P of a will;
where any such memorandum has been executed, or any nomination has been made under section 25(1) of that Act, by P or by the court on P’s behalf, revoking, on P’s behalf, of that memorandum or nomination, as the case may be; or
carrying out or continuation of —
any other treatment on P which a person providing health care reasonably believes is necessary to prevent a serious deterioration in P’s condition.
(4) A deputy may not be given power to make a decision on behalf of P which is inconsistent with a decision made, within the scope of his authority and in accordance with this Act, by the donee of a lasting power of attorney granted by P (or, if there is more than one donee, by any of them).
(5) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 3 (the principles) and 6 (best interests).
(6) A deputy may not do an act that is intended to restrain P unless 4 conditions are satisfied.
(7) The first condition is that, in doing the act, the deputy is acting within the scope of an authority expressly conferred on him by the court.
(8) The second condition is that P lacks, or the deputy reasonably believes that P lacks, capacity in relation to the matter in question.
(9) The third condition is that the deputy reasonably believes that it is necessary to do the act in order to prevent harm to P.
(10) The fourth condition is that the act is a proportionate response to —
the likelihood of P’s suffering harm; or
the seriousness of that harm.
(11) For the purposes of this section, a deputy restrains P if he —
uses, or threatens to use, force to secure the doing of an act which P resists; or
restricts P’s liberty of movement, whether or not P resists,
or if he authorises another person to do any of those things.
[UK MCA 2005, s. 20]