Enduring Powers of Attorney Act 1985 (repealed)

Enduring powers of attorney E+W

1 Enduring power of attorney to survive mental incapacity of donor. E+W

(1) Where an individual creates a power of attorney which is an enduring power within the meaning of this Act then—

(a) the power shall not be revoked by any subsequent mental incapacity of his; but

(b) upon such incapacity supervening the donee of the power may not do anything under the authority of the power except as provided by subsection (2) below or as directed or authorised by the court under section 5 unless or, as the case may be, until the instrument creating the power is registered by the court under section 6; and

(c) section 5 of the M1 Powers of Attorney Act 1971 (protection of donee and third persons) so far as applicable shall apply if and so long as paragraph (b) above operates to suspend the donee’s authority to act under the power as if the power had been revoked by the donor’s mental incapacity.

(2) Notwithstanding subsection (1)(b) above, where the attorney has made an application for registration of the instrument then, until the application has been initially determined, the attorney may take action under the power—

(a) to maintain the donor or prevent loss to his estate; or

(b) to maintain himself or other persons in so far as section 3(4) permits him to do so.

(3) Where the attorney purports to act as provided by subsection (2) above then, in favour of a person who deals with him without knowledge that the attorney is acting otherwise than in accordance with paragraph (a) or (b) of that subsection, the transaction between them shall be as valid as if the attorney were acting in accordance with paragraph (a) or (b).

Marginal Citations

M1 1971 c. 27.

2 Characteristics of an enduring power. E+W

(1) Subject to subsections (7) to (9) below and section 11, a power of attorney is an enduring power within the meaning of this Act if the instrument which creates the power—

(a) is in the prescribed form; and

(b) was executed in the prescribed manner by the donor and the attorney; and

(c) incorporated at the time of execution by the donor the prescribed explanatory information.

(2) The Lord Chancellor shall make regulations as to the form and execution of instruments creating enduring powers and the regulations shall contain such provisions as appear to him to be appropriate for securing—

(a) that no document is used to create an enduring power which does not incorporate such information explaining the general effect of creating or accepting the power as may be prescribed; and

(b) that such instruments include statements to the following effect—

(i) by the donor, that he intends the power to continue in spite of any supervening mental incapacity of his;

(ii) by the donor, that he read or had read to him the information explaining the effect of creating the power;

(iii) by the attorney, that he understands the duty of registration imposed by this Act.

(3) Regulations under subsection (2) above—

(a) may include different provision for cases where more than one attorney is to be appointed by the instrument than for cases where only one attorney is to be appointed; and

(b) may, if they amend or revoke any regulations previously made under that subsection, include saving and transitional provisions.

(4) Regulations under subsection (2) above shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) An instrument in the prescribed form purporting to have been executed in the prescribed manner shall be taken, in the absence of evidence to the contrary, to be a document which incorporated at the time of execution by the donor the prescribed explanatory information.

(6) Where an instrument differs in an immaterial respect in form or mode of expression from the prescribed form the instrument shall be treated as sufficient in point of form and expression.

(7) A power of attorney cannot be an enduring power unless, when he executes the instrument creating it, the attorney is—

(a) an individual who has attained eighteen years and is not bankrupt; or

(b) a trust corporation.

F1 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power.

(10) An enduring power shall be revoked by the bankruptcy of the attorney whatever the circumstances of the bankruptcy.

(11) An enduring power shall be revoked on the exercise by the court of any of its powers under Part VII of the M2 Mental Health Act 1983 if, but only if, the court so directs.

(12) No disclaimer of an enduring power, whether by deed or otherwise, shall be valid unless and until the attorney gives notice of it to the donor or, where section 4(6) or 7(1) applies, to the court.

(13) In this section “prescribed” means prescribed under subsection (2) above.

Textual Amendments

F1 S. 2(8) repealed (1.3.2000 with effect in relation to powers of attorney created after the commencement of the amending Act) by 1999 c. 15, ss. 6, 12, Sch. Note; S.I. 2000/216, art. 2

Marginal Citations

M2 1983 c. 20.

3 Scope of authority etc. of attorney under enduring power. E+W

(1) An enduring power may confer general authority (as defined in subsection (2) below) on the attorney to act on the donor’s behalf in relation to all or a specified part of the property and affairs of the donor or may confer on him authority to do specified things on the donor’s behalf and the authority may, in either case, be conferred subject to conditions and restrictions.

(2) Where an instrument is expressed to confer general authority on the attorney it operates to confer, subject to the restriction imposed by subsection (5) below and to any conditions or restrictions contained in the instrument, authority to do on behalf of the donor anything which the donor can lawfully do by an attorney.

F2 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) act under the power so as to benefit himself or other persons than the donor to the following extent but no further, that is to say—

(a) he may so act in relation to himself or in relation to any other person if the donor might be expected to provide for his or that person’s needs respectively; and

(b) he may do whatever the donor might be expected to do to meet those needs.

(5) Without prejudice to subsection (4) above but subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) dispose of the property of the donor by way of gift to the following extent but no further, that is to say—

(a) he may make gifts of a seasonal nature or at a time, or on an anniversary, of a birth or marriage, to persons (including himself) who are related to or connected with the donor, and

(b) he may make gifts to any charity to whom the donor made or might be expected to make gifts.

provided that the value of each such gift is not unreasonable having regard to all the circumstances and in particular the size of the donor’s estate.

Textual Amendments

F2 S. 3(3) repealed (1.3.2000 with effect in accordance with s. 4 of the amending Act) by 1999 c. 15, ss. 4, 12,Sch. Note; S.I. 2000/216, art. 2

Action on actual or impending incapacity of donor E+W

4 Duties of attorney in event of actual or impending incapacity of donor. E+W

(1) If the attorney under an enduring power has reason to believe that the donor is or is becoming mentally incapable subsections (2) to (6) below shall apply.

(2) The attorney shall, as soon as practicable, make an application to the court for the registration of the instrument creating the power.

(3) Before making an application for registration the attorney shall comply with the provisions as to notice set out in Schedule 1.

(4) An application for registration shall be made in the prescribed form and shall contain such statements as may be prescribed.

(5) The attorney may, before making an application for the registration of the instrument, refer to the court for its determination any question as to the validity of the power and he shall comply with any direction given to him by the court on that determination.

(6) No disclaimer of the power shall be valid unless and until the attorney gives notice of it to the court.

(7) Any person who, in an application for registration, makes a statement which he knows to be false in a material particular shall be liable—

(a) on convection on indictment, to imprisonment for a term not exceeding two years or to a fine, or both; and

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or both.

(8) In this section and Schedule 1 “prescribed” means prescribed by rules of the court.

5 Functions of court prior to registration. E+W

Where the court has reason to believe that the donor of an enduring power may be, or may be becoming, mentally incapable and the court is of the opinion that it is necessary, before the instrument creating the power is registered, to exercise any power with respect to the power of attorney or the attorney appointed to act under it which would become exercisable under section 8(2) on its registration, the court may exercise that power under this section and may do so whether the attorney has or has not made an application to the court for the registration of the instrument.

6 Functions of court on application for registration. E+W

(1) In any case where—

(a) an application for registration is made in accordance with section 4(3) and (4), and

(b) neither subsection (2) nor subsection (4) below applies,

the court shall register the instrument to which the application relates.

(2) Where it appears to the court that there is in force under Part VII of the M3 Mental Health Act 1983 an order appointing a receiver for the donor but the power has not also been revoked then, unless it directs otherwise, the court shall not exercise or further exercise its functions under this section but shall refuse the application for registration.

(3) Where it appears from an application for registration that notice of it has not been given under Schedule 1 to some person entitled to receive it (other than a person in respect of whom the attorney has been dispensed or is otherwise exempt from the requirement to give notice) the court shall direct that the application be treated for the purposes of this Act as having been made in accordance with section 4(3), if the court is satisfied that, as regards each such person—

(a) it was undesirable or impracticable for the attorney to give him notice; or

(b) no useful purpose is likely to be served by giving him notice.

(4) If, in the case of an application for registration—

(a) a valid notice of objection to the registration is received by the court before the expiry of the period of five weeks beginning with the date or, as the case may be, the latest date on which the attorney gave notice to any person under Schedule 1, or

(b) it appears from the application that there is no one to whom notice has been given under paragraph 1 of that Schedule, or

(c) the court has reason to believe that appropriate inquiries might bring to light evidence on which the court could be satisfied that one of the grounds of objection set out in subsection (5) below was established,

the court shall neither register the instrument nor refuse the application until it has made or caused to be made such inquiries (if any) as it thinks appropriate in the circumstances of the case.

(5) For the purposes of this Act a notice of objection to the registration of an instrument is valid if the objection is made on one or more of the following grounds, namely—

(a) that the power purported to have been created by the instrument was not valid as an enduring power of attorney;

(b) that the power created by the instrument no longer subsists;

(c) that the application is premature because the donor is not yet becoming mentally incapable;

(d) that fraud or undue pressure was used to induce the donor to create the power;

(e) that, having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney.

(6) If, in a case where subsection (4) above applies, any of the grounds of objection in subsection (5) above is established to the satisfaction of the court, the court shall refuse the application but if, in such a case, it is not so satisfied, the court shall register the instrument to which the application relates.

(7) Where the court refuses an application for registration on ground (d) or (e) in subsection (5) above it shall by order revoke the power created by the instrument.

(8) Where the court refuses an application for registration on any ground other than that specified in subsection (5)(c) above the instrument shall be delivered up to be cancelled, unless the court otherwise directs.

Marginal Citations

M3 1983 c. 20.

Legal position after registration U.K.

7 Effect and proof of registration, etc. U.K.

(1) The effect of the registration of an instrument under section 6 is that—

(a) no revocation of the power by the donor shall be valid unless and until the court confirms the revocation under section 8(3);

(b) no disclaimer of the power shall be valid unless and until the attorney gives notice of it to the court;

(c) the donor may not extend or restrict the scope of the authority conferred by the instrument and no instruction or consent given by him after registration shall, in the case of a consent, confer any right and in the case of an instruction, impose or confer any obligation or right on or create any liability of the attorney or other persons having notice of the instruction or consent.

(2) Subsection (1) above applies for so long as the instrument is registered under section 6 whether or not the donor is for the time being mentally incapable.

(3) A document purporting to be an office copy of an instrument registered under this Act [F3 or under the Enduring Powers of Attorney (Northern Ireland) Order 1987]shall, in any part of the United Kingdom, be evidence of the contents of the instrument and of the fact that it has been so registered.

(4) Subsection (3) above is without prejudice to section 3 of the M4 Powers of Attorney Act 1971 (proof by certified copies) and to any other method authorised by law.

Textual Amendments

F3 Words inserted by S.I. 1987/1628, arts. 1(b), 2

Marginal Citations

M4 1971 c. 27.

8 Functions of court with respect to registered power. E+W

(1) Where an instrument has been registered under section 6, the court shall have the following functions with respect to the power and the donor of and the attorney appointed to act under the power.

(2) The court may—

(a) determine any question as to the meaning or effect of the instrument;

(b) give directions with respect to—

(i) the management or disposal by the attorney of the property and affairs of the donor;

(ii) the rendering of accounts by the attorney and the production of the records kept by him for the purpose;

(iii) the remuneration or expenses of the attorney, whether or not in default of or in accordance with any provision made by the instrument, including directions for the repayment of excessive or the payment of additional remuneration;

(c) require the attorney to furnish information or produce documents or things in his possession as attorney;

(d) give any consent or authorisation to act which the attorney would have to obtain from a mentally capable donor;

(e) authorise the attorney to act so as to benefit himself or other persons than the donor otherwise than in accordance with section 3(4) and (5) (but subject to any conditions or restrictions contained in the instrument);

(f) relieve the attorney wholly or partly from any liability which he has or may have incurred on account of a breach of his duties as attorney.

(3) On application made for the purpose by or on behalf of the donor, the court shall confirm the revocation of the power if satisfied that the donor has done whatever is necessary in law to effect an express revocation of the power and was mentally capable of revoking a power of attorney when he did so (whether or not he is so when the court considers the application).

(4) The court shall cancel the registration of an instrument registered under section 6 in any of the following circumstances, that is to say—

(a) on confirming the revocation of the power under subsection (3) above or receiving notice of disclaimer under section 7(1)(b);

(b) on giving a direction revoking the power on exercising any of its powers under Part VII of the M5 Mental Health Act 1983;

(c) on being satisfied that the donor is and is likely to remain mentally capable;

(d) on being satisfied that the power has expired or has been revoked by the death or bankruptcy of the donor or the death, mental incapacity or bankruptcy of the attorney or, if the attorney is a body corporate, its winding up or dissolution;

(e) on being satisfied that the power was not a valid and subsisting enduring power when registration was effected;

(f) on being satisfied that fraud or undue pressure was used to induce the donor to create the power; or

(g) on being satisfied that, having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney.

(5) Where the court cancels the registration of an instrument on being satisfied of the matters specified in paragraph (f) or (g) of subsection (4) above it shall by order revoke the power created by the instrument.

(6) On the cancellation of the registration of an instrument under subsection (4) above except paragraph (c) the instrument shall be delivered up to be cancelled, unless the court otherwise directs.

Marginal Citations

M5 1983 c. 20.

Protection of attorney and third parties E+W

9 Protection of attorney and third persons where power invalid or revoked. E+W

(1) Subsections (2) and (3) below apply where an instrument which did not create a valid power of attorney has been registered under section 6 (whether or not the registration has been cancelled at the time of the act or transaction in question).

(2) An attorney who acts in pursuance of the power shall not incur any liability (either to the donor or to any other person) by reason of the non-existence of the power unless at the time of acting he knows—

(a) that the instrument did not create a valid enduring power; or

(b) that an event has occurred which, if the instrument had created a valid enduring power, would have had the effect of revoking the power; or

(c) that, if the instrument had created a valid enduring power, the power would have expired before that time.

(3) Any transaction between the attorney and another person shall, in favour of that person, be as valid as if the power had then been in existence, unless at the time of the transaction that person has knowledge of any of the matters mentioned in subsection (2) above.

(4) Where the interest of a purchaser depends on whether a transaction between the attorney and another person was valid by virtue of subsection (3) above, it shall be conclusively presumed in favour of the purchaser that the transaction was valid if—

(a) the transaction between that person and the attorney was completed within twelve months of the date on which the instrument was registered; or

(b) that person makes a statutory declaration, before or within three months after the completion of the purchase, that he had no reason at the time of the transaction to doubt that the attorney had authority to dispose of the property which was the subject of the transaction.

(5) For the purposes of section 5 of the M6 Powers of Attorney Act 1971 (protection of attorney and third persons where action is taken under the power of attorney in ignorance of its having been revoked) in its application to an enduring power the revocation of which by the donor is by virtue of section 7(1)(a) above invalid unless and until confirmed by the court under section 8(3) above, knowledge of the confirmation of the revocation is, but knowledge of the unconfirmed revocation is not, knowledge of the revocation of the power.

(6) Schedule 2 shall have effect to confer protection in cases where the instrument failed to create a valid enduring power and the power has been revoked by the donor’s mental incapacity.

(7) In this section “purchaser” and “purchase” have the meanings specified in section 205(1) of the M7 Law of Property Act 1925.

Marginal Citations

M6 1971 c. 27.

M7 1925 c. 20.

Supplementary U.K.

10 Application of Mental Health Act provisions relating to the court. U.K.

(1) The provisions of Part VII of the M8 Mental Health Act 1983 (relating to the Court of Protection) specified below shall apply to persons within and proceedings under this Act in accordance with the following paragraphs of this subsection and subsection (2) below, that is to say—

(a) section 103 (functions of Visitors) shall apply to persons within this Act as it applies to the persons mentioned in that section;

(b) section 104 (powers of judge) shall apply to proceedings under this Act with respect to persons within this Act as it applies to the proceedings mentioned in subsection (1) of that section;

(c) section 105(1) (appeals to nominated judge) shall apply to any decision of the Master of the Court of Protection or any nominated officer in proceedings under this Act as it applies to any decision to which that subsection applies and an appeal shall lie to the Court of Appeal from any decision of a nominated judge whether given in the exercise of his original jurisdiction or on the hearing of an appeal under section 105(1) as extended by this paragraph;

(d) section 106 except subsection (4) (rules of procedure) shall apply to proceedings under this Act and persons within this Act as it applies to the proceedings and persons mentioned in that section.

(2) Any functions conferred or imposed by the provisions of the said Part VII applied by subsection (1) above shall be exercisable also for the purposes of this Act and the persons who are “within this Act” are the donors of and attorneys under enduring powers of attorney whether or not they would be patients for the purposes of the said Part VII.

(3) In this section “nominated judge” and “nominated officer” have the same meanings as in Part VII of the M9 Mental Health Act 1983.

Marginal Citations

M8 1983 c. 20.

M9 1983 c. 20.

11 Application to joint and joint and several attorneys. E+W

(1) An instrument which appoints more than one person to be an attorney cannot create an enduring power unless the attorneys are appointed to act jointly or jointly and severally.

(2) This Act, in its application to joint attorneys, applies to them collectively as it applies to a single attorney but subject to the modifications specified in Part I of Schedule 3.

(3) This Act, in its application to joint and several attorneys, applies with the modifications specified in subsections (4) to (7) below and in Part II of Schedule 3.

(4) A failure, as respects any one attorney, to comply with the requirements for the creation of enduring powers, shall prevent the instrument from creating such a power in his case without however affecting its efficacy for that purpose as respects the other or others or its efficacy in his case for the purpose of creating a power of attorney which is not an enduring power.

(5) Where one or more but not both or all the attorneys makes or joins in making an application for registration of the instrument then—

(a) an attorney who is not an applicant as well as one who is may act pending the initial determination of the application as provided in section 1(2) (or under section 5);

(b) notice of the application shall also be given under Schedule 1 to the other attorney or attorneys; and

(c) objection may validly be taken to the registration on a ground relating to an attorney or to the power of an attorney who is not an applicant as well as to one or the power of one who is an applicant.

(6) The court shall not refuse under section 6(6) to register an instrument because a ground of objection to an attorney or power is established if an enduring power subsists as respects some attorney who is not affected thereby but shall give effect to it by the prescribed qualification of the registration.

(7) The court shall not cancel the registration of an instrument under section 8(4) for any of the causes vitiating registration specified in that subsection if an enduring power subsists as respects some attorney who is not affected thereby but shall give effect to it by the prescribed qualification of the registration.

(8) In this section—

“prescribed” means prescribed by rules of the court; and

“the requirements for the creation of enduring powers” means the provisions of section 2 other than subsections (10) to (12) and of regulations under subsection (2) of that section.

12 Power of Lord Chancellor to modify pre-registration requirements in certain cases. E+W

(1) The Lord Chancellor may by order exempt attorneys of such descriptions as he thinks fit from the requirements of this Act to give notice to relatives prior to registration.

(2) Subject to subsection (3) below, where an order is made under this section with respect to attorneys of a specified description then, during the currency of the order, this Act shall have effect in relation to any attorney of that description with the omission of so much of section 4(3) and Schedule 1 as requires notice of an application for registration to be given to relatives.

(3) Notwithstanding that an attorney under a joint or joint and several power is of a description specified in a current order under this section, subsection (2) above shall not apply in relation to him if any of the other attorneys under the power is not of a description specified in that or another current order under this section.

(4) The power to make an order under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

13 Interpretation. E+W

(1) In this Act—

• “the court”, in relation to any functions under this Act, means the authority having jurisdiction under Part VII of the M10 Mental Health Act 1983;

• “enduring power” is to be construed in accordance with section 2;

• “mentally incapable” or “mental incapacity”, except where it refers to revocation at common law, means, in relation to any person, that he is incapable by reason of mental disorder of managing and administering his property and affairs and “mentally capable” and “mental capacity” shall be construed accordingly;

• “mental disorder” has the same meaning as it has in the Mental Health Act 1983;

• “notice” means notice in writing;

• “rules of the court” means rules under Part VII of the Mental Health Act 1983 as applied by section 10;

• F4 . . .

• “trust corporation” means the Public Trustee or a corporation either appointed by the High Court or a county court (according to their respective jurisdictions) in any particular case to be a trustee or entitled by rules under section 4(3) of the M11 Public Trustee Act 1906 to act as custodian trustee.

(2) Any question arising under or for the purposes of this Act as to what the donor of the power might at any time be expected to do shall be determined by assuming that he had full mental capacity at the time but otherwise by reference to the circumstances existing at that time.

Textual Amendments

F4 S. 13(1): definition repealed (5.11.1993) by 1993 c. 50, s. 1(1), Sch. 1 Pt.XIV.

Marginal Citations

M10 1983 c. 20.

M11 1906 c.55.

14 Short title, commencement and extent. E+W

(1) This Act may be cited as the Enduring Powers of Attorney Act 1985.

(2) This Act shall come into force on such day as the Lord Chancellor appoints by order made by statutory instrument.

(3) This Act extends to England and Wales only except that section 7(3)

and section 10(1)(b) so far as it applies section 104(4) of the Mental Health Act 1983 extend also to Scotland and Northern Ireland.

Modifications etc. (not altering text)

C1 Power of appointment conferred by s. 14(2) fully exercised: 10.3.1986 appointed by S.I. 1986/125, art. 2