Sch. 6 para. 22(2) repealed (1.10.2010) by Legal Services Act 2007 (c. 29), ss. 210, 211, Sch. 23 (with ss. 29, 192, 193) (as amended by 2009 c. 25, Sch. 21 para. 97, Sch. 23 Pt. 9); S.I. 2009/3250, art. 2(i)(xii) (with art. 9)
Sch. 6 para. 44 repealed (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 Pt. 2; S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)
Sch. 6 para. 11 repealed (1.8.2014) by Co-operative and Community Benefit Societies Act 2014 (c. 14), s. 154, Sch. 7 (with Sch. 5)
Sch. 6 para. 31(2) omitted (1.10.2015) by virtue of Deregulation Act 2015 (c. 20), s. 115(7), Sch. 6 para. 20(4); S.I. 2015/1732, art. 2(e)(vi)
Section 67(1)
The Fines and Recoveries Act 1833 (c. 74) is amended as follows.
In section 33 (case where protector of settlement lacks capacity to act), for the words from “shall be incapable” to “is incapable as aforesaid” substitute
In sections 48 and 49 (mental health jurisdiction), for each reference to the judge having jurisdiction under Part 7 of the Mental Health Act substitute a reference to the Court of Protection.
In section 68 of the Improvement of Land Act 1864 (c. 114) (apportionment of rentcharges)—
for “, curator, or receiver of” substitute
for “or patient within the meaning of Part VII of the Mental Health Act 1983” substitute
The Trustee Act 1925 (c. 19) is amended as follows.
In section 36 (appointment of new trustee)—
in subsection (6C), for the words from “a power of attorney” to the end, substitute
in subsection (9)—
for the words from “is incapable” to “exercising” substitute
for the words from “the authority” to the end substitute
In section 41(1)
(power of court to appoint new trustee) for the words from “is incapable” to “exercising” substitute
In section 54 (mental health jurisdiction)—
for subsection (1) substitute—
Subject to subsection (2), the Court of Protection may not make an order, or give a direction or authority, in relation to a person who lacks capacity to exercise his functions as trustee, if the High Court may make an order to that effect under this Act.
in subsection (2)—
for the words from the beginning to “of a receiver” substitute
for “the said authority”, in each place, substitute
for “the patient”, in each place, substitute
omit subsection (3).
In section 55 (order made on particular allegation to be conclusive evidence of it)—
for the words from “Part VII” to “Northern Ireland” substitute
for paragraph (a) substitute—
that a trustee or mortgagee lacks capacity in relation to the matter in question;
In section 68 (definitions), at the end add—
Any reference in this Act to a person who lacks capacity in relation to a matter is to a person— who lacks capacity within the meaning of the Mental Capacity Act 2005 in relation to that matter, or in respect of whom the powers conferred by section 48 of that Act are exercisable and have been exercised in relation to that matter.
The Law of Property Act 1925 (c. 20) is amended as follows.
In section 22 (conveyances on behalf of persons who lack capacity)—
in subsection (1)—
for the words from “in a person suffering”
to “is acting”
substitute
for “the authority having jurisdiction under Part VII of the Mental Health Act 1983”
substitute
in subsection (2), for “is incapable, by reason of mental disorder, of exercising”
substitute
in subsection (3), for the words from “an enduring power”
to the end substitute
In section 205(1) (interpretation), omit paragraph (xiii).
The Administration of Estates Act 1925 (c. 23) is amended as follows.
In section 41(1) (powers of personal representatives to appropriate), in the proviso—
in paragraph (ii)—
for the words from “is incapable” to “the consent” substitute
for “or receiver” substitute
in paragraph (iv), for “no receiver is acting for a person suffering from mental disorder” substitute
Omit section 55(1)(viii) (definitions of “person of unsound mind” and “defective”).
In section 49 of the National Assistance Act 1948 (c. 29) (expenses of council officers acting for persons who lack capacity)—
for the words from “applies” to “affairs of a patient” substitute
for “such functions” substitute
In section 1 of the U.S.A. Veterans' Pensions (Administration) Act 1949 (c. 45) (administration of pensions)—
in subsection (4), omit the words from “or for whom” to “1983”, and
after subsection (4), insert—
An agreement under subsection (1) is not to be made in relation to a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) for the purposes of this Act if— there is a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for the person by the Court of Protection, and the donee or deputy has power in relation to the person for the purposes of this Act. The proviso at the end of subsection (4) also applies in relation to subsection (4A).
In Schedule 2 to the Intestates' Estates Act 1952 (c. 64) (rights of surviving spouse or civil partner in relation to home), for paragraph 6(1) substitute—
Where the surviving spouse or civil partner lacks capacity (within the meaning of the Mental Capacity Act 2005) to make a requirement or give a consent under this Schedule, the requirement or consent may be made or given by a deputy appointed by the Court of Protection with power in that respect or, if no deputy has that power, by that court.
In section 1 of the Variation of Trusts Act 1958 (c. 53) (jurisdiction of courts to vary trusts)—
in subsection (3), for the words from “shall be determined” to the end substitute
in subsection (6), for the words from “the powers” to the end substitute
In section 12(1)(b) of the Administration of Justice Act 1960 (c. 65)
(contempt of court to publish information about proceedings in private relating to persons with incapacity) for the words from “under Part VIII” to “that Act” substitute
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In Schedule 1 to the Compulsory Purchase Act 1965 (c. 56) (persons without power to sell their interests), for paragraph 1(2)(b) substitute—
do not have effect in relation to a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) for the purposes of this Act if— there is a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for the person by the Court of Protection, and the donee or deputy has power in relation to the person for the purposes of this Act.
For section 26(2) of the Leasehold Reform Act 1967 (c. 88) (landlord lacking capacity) substitute—
Where a landlord lacks capacity (within the meaning of the Mental Capacity Act 2005) to exercise his functions as a landlord, those functions are to be exercised— by a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for him by the Court of Protection, with power to exercise those functions, or if no donee or deputy has that power, by a person authorised in that respect by that court.
That amendment does not affect any proceedings pending at the commencement of this paragraph in which a receiver or a person authorised under Part 7 of the Mental Health Act is acting on behalf of the landlord.
In section 72 of the Medicines Act 1968 (c. 67) (pharmacist lacking capacity)—
in subsection (1)(c), for the words from “a receiver” to “1959” substitute
after subsection (1) insert—
In subsection (1)(c), the reference to a person who lacks capacity to carry on the business is to a person— in respect of whom there is a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the Mental Capacity Act 2005), or for whom a deputy is appointed by the Court of Protection, and in relation to whom the donee or deputy has power for the purposes of this Act.
in subsection (3)(d)—
for “receiver” substitute
after “guardian” insert
in subsection (4)(c), for “receiver” substitute
For section 21(4) of the Family Law Reform Act 1969 (c. 46) (consent required for taking of bodily sample from person lacking capacity), substitute—
A bodily sample may be taken from a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to give his consent, if consent is given by the court giving the direction under section 20 or by— a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or a deputy appointed, or any other person authorised, by the Court of Protection, with power in that respect.
Schedule 1 to the Local Authority Social Services Act 1970 (c. 42) (enactments conferring functions assigned to social services committee) is amended as follows.
In the entry for section 49 of the National Assistance Act 1948 (expenses of local authority officer appointed for person who lacks capacity) for “receiver” substitute
At the end, insert—
Mental Capacity Act 2005 Section 39 Instructing independent mental capacity advocate before providing accommodation for person lacking capacity. Section 49 Reports in proceedings.
In Part 1A of Schedule 2 to the Courts Act 1971 (c. 23) (office-holders eligible for appointment as circuit judges), omit the reference to a Master of the Court of Protection.
Omit section 118 of the Local Government Act 1972 (c. 70) (payment of pension etc. where recipient lacks capacity).
Sub-paragraph (3) applies where, before the commencement of this paragraph, a local authority has, in respect of a person referred to in that section as “the patient”, made payments under that section—
to an institution or person having the care of the patient, or
in accordance with subsection (1)(a) or (b) of that section.
The local authority may, in respect of the patient, continue to make payments under that section to that institution or person, or in accordance with subsection (1)(a) or (b) of that section, despite the repeal made by sub-paragraph (1).
In section 40 of the Matrimonial Causes Act 1973 (c. 18) (payments to person who lacks capacity) (which becomes subsection (1))—
for the words from “is incapable” to “affairs” substitute
for “that person under Part VIII of that Act” substitute
for the words from “such persons” to the end substitute
at the end insert—
In carrying out any functions of his in relation to an order made under subsection (1), D must act in P's best interests (within the meaning of that Act).
In Schedule 1 to the Juries Act 1974 (c. 23) (disqualification for jury service), for paragraph 3 substitute—
A person who lacks capacity, within the meaning of the Mental Capacity Act 2005, to serve as a juror.
For section 37(1)(c) of the Consumer Credit Act 1974 (c. 39) (termination of consumer credit licence if holder lacks capacity) substitute—
becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to carry on the activities covered by the licence.
The Solicitors Act 1974 (c. 47) is amended as follows.
In section 62(4) (contentious business agreements made by clients) for paragraphs (c) and (d) substitute—
as a deputy for him appointed by the Court of Protection with powers in relation to his property and affairs, or as another person authorised under that Act to act on his behalf.
In paragraph 1(1) of Schedule 1 (circumstances in which Law Society may intervene in solicitor's practice), for paragraph (f) substitute—
a solicitor lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as a solicitor and powers under sections 15 to 20 or section 48 of that Act are exercisable in relation to him;
In section 31 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57)
(the title to which becomes “Indemnities for local authority officers appointed as deputies or administrators”), for the words from “as a receiver” to “1959” substitute
In section 3(2) of the Sale of Goods Act 1979 (c. 54) (capacity to buy and sell) the words “mental incapacity or” cease to have effect in England and Wales.
In section 38 of the Limitation Act 1980 (c. 58) (interpretation) substitute—
in subsection (2) for “of unsound mind” substitute
omit subsections (3) and (4).
In section 57(2)(c) of the Public Passenger Vehicles Act 1981 (c. 14)
(termination of public service vehicle licence if holder lacks capacity) for the words from “becomes a patient” to “or” substitute
In Schedule 1 to the Judicial Pensions Act 1981 (c. 20) (pensions of Supreme Court officers, etc.), in paragraph 1, omit the reference to a Master of the Court of Protection except in the case of a person holding that office immediately before the commencement of this paragraph or who had previously retired from that office or died.
In Schedule 2 to the Supreme Court Act 1981 (c. 54) (qualifications for appointment to office in Supreme Court), omit paragraph 11 (Master of the Court of Protection).
The Mental Health Act is amended as follows.
In section 134(3) (cases where correspondence of detained patients may not be withheld) for paragraph (b) substitute—
any judge or officer of the Court of Protection, any of the Court of Protection Visitors or any person asked by that Court for a report under section 49 of the Mental Capacity Act 2005 concerning the patient;
In section 139 (protection for acts done in pursuance of 1983 Act), in subsection (1), omit from “or in, or in pursuance” to “Part VII of this Act,”.
Section 142 (payment of pension etc. where recipient lacks capacity) ceases to have effect in England and Wales.
Sub-paragraph (6) applies where, before the commencement of sub-paragraph (4), an authority has, in respect of a person referred to in that section as “the patient”, made payments under that section—
to an institution or person having the care of the patient, or
in accordance with subsection (2)(a) or (b) of that section.
The authority may, in respect of the patient, continue to make payments under that section to that institution or person, or in accordance with subsection (2)(a) or (b) of that section, despite the amendment made by sub-paragraph (4).
In section 145(1) (interpretation), in the definition of “patient”, omit “(except in Part VII of this Act)”.
In section 146 (provisions having effect in Scotland), omit from “104(4)” to “section),”.
In section 147 (provisions having effect in Northern Ireland), omit from “104(4)” to “section),”.
In section 18(3) of the Administration of Justice Act 1985 (c. 61)
(licensed conveyancer who lacks capacity), for the words from “that person” to the end substitute
The Insolvency Act 1986 (c. 45) is amended as follows.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In section 390 (people not qualified to be insolvency practitioners), in subsection (4)—
omit the “or” immediately after paragraph (b),
in paragraph (c), omit “Part VII of the Mental Health Act 1983 or”, and
after that paragraph, insert
, or
he lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as an insolvency practitioner.
In section 102D(9) of the Building Societies Act 1986 (c. 53) (references to a person holding an account on trust for another)—
in paragraph (a), for “Part VII of the Mental Health Act 1983” substitute
for paragraph (b) substitute—
to an attorney holding an account for another person under— an enduring power of attorney or lasting power of attorney registered under the Mental Capacity Act 2005, or an enduring power registered under the Enduring Powers of Attorney (Northern Ireland) Order 1987;
In section 3 of the Public Trustee and Administration of Funds Act 1986 (c. 57) (functions of the Public Trustee)—
for subsections (1) to (5) substitute—
The Public Trustee may exercise the functions of a deputy appointed by the Court of Protection.
in subsection (6), for “the 1906 Act” substitute
omit subsection (7).
The Patronage (Benefices) Measure 1986 (No. 3) is amended as follows.
In section 5 (rights of patronage exercisable otherwise than by registered patron), after subsection (3) insert—
The reference in subsection (3) to a power of attorney does not include an enduring power of attorney or lasting power of attorney (within the meaning of the Mental Capacity Act 2005).
In section 9 (information to be sent to designated officer when benefice becomes vacant), after subsection (5) insert—
Subsections (5B) and (5C) apply where the functions of a registered patron are, as a result of paragraph 10 of Schedule 2 to the Mental Capacity Act 2005 (patron's loss of capacity to discharge functions), to be discharged by an individual appointed by the Court of Protection. If the individual is a clerk in Holy Orders, subsection (5) applies to him as it applies to the registered patron. If the individual is not a clerk in Holy Orders, subsection (1) (other than paragraph (b)) applies to him as it applies to the registered patron.
The Courts and Legal Services Act 1990 (c. 41) is amended as follows.
In Schedule 11 (judges etc. barred from legal practice), for the reference to a Master of the Court of Protection substitute a reference to each of the following—
Senior Judge of the Court of Protection
President of the Court of Protection
Vice-President of the Court of Protection
In paragraph 5(3) of Schedule 14 (exercise of powers of intervention in registered foreign lawyer's practice), for paragraph (f) substitute—
he lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as a registered foreign lawyer and powers under sections 15 to 20 or section 48 are exercisable in relation to him;
In section 50 of the Child Support Act 1991 (c. 48) (unauthorised disclosure of information)—
in subsection (8)—
immediately after paragraph (a), insert
omit paragraphs (b) and (d) and the “or” immediately after paragraph (c), and
for “, receiver, custodian or appointee” substitute
after that subsection, insert—
Where the person to whom the information relates lacks capacity (within the meaning of the Mental Capacity Act 2005) to consent to its disclosure, the appropriate person is— a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or a deputy appointed for him, or any other person authorised, by the Court of Protection, with power in that respect.
In section 123 of the Social Security Administration Act 1992 (c. 5) (unauthorised disclosure of information)—
in subsection (10), omit—
in paragraph (b), “a receiver appointed under section 99 of the Mental Health Act 1983 or”,
in paragraph (d)(i), “sub-paragraph (a) of rule 41(1) of the Court of Protection Rules 1984 or”,
in paragraph (d)(ii), “a receiver ad interim appointed under sub-paragraph (b) of the said rule 41(1) or”, and
“receiver,”, and
after that subsection, insert—
Where the person to whom the information relates lacks capacity (within the meaning of the Mental Capacity Act 2005) to consent to its disclosure, the appropriate person is— a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or a deputy appointed for him, or any other person authorised, by the Court of Protection, with power in that respect.
The Judicial Pensions and Retirement Act 1993 (c. 8) is amended as follows.
In Schedule 1 (qualifying judicial offices), in Part 2, under the cross-heading “Court officers”, omit the reference to a Master of the Court of Protection except in the case of a person holding that office immediately before the commencement of this sub-paragraph or who had previously retired from that office or died.
In Schedule 5(retirement: the relevant offices), omit the entries relating to the Master and Deputy or temporary Master of the Court of Protection, except in the case of a person holding any of those offices immediately before the commencement of this sub-paragraph.
In Schedule 7(retirement: transitional provisions), omit paragraph 5(5)(i)(g) except in the case of a person holding office as a deputy or temporary Master of the Court of Protection immediately before the commencement of this sub-paragraph.
For paragraph 4 of Schedule 2 to the Leasehold Reform, Housing and Urban Development Act 1993 (c. 28) (landlord under a disability), substitute—
This paragraph applies where a Chapter I or Chapter II landlord lacks capacity (within the meaning of the Mental Capacity Act 2005) to exercise his functions as a landlord. For the purposes of the Chapter concerned, the landlord's place is to be taken— by a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for him by the Court of Protection, with power to exercise those functions, or if no deputy or donee has that power, by a person authorised in that respect by that court.
That amendment does not affect any proceedings pending at the commencement of this paragraph in which a receiver or a person authorised under Part 7 of the Mental Health Act 1983 (c. 20) is acting on behalf of the landlord.
The Goods Vehicles (Licensing of Operators) Act 1995 (c. 23) is amended as follows.
In section 16(5)
(termination of licence), for “he becomes a patient within the meaning of Part VII of the Mental Health Act 1983” substitute
In section 48 (licence not to be transferable, etc.)—
in subsection (2)—
for “or become a patient within the meaning of Part VII of the Mental Health Act 1983” substitute
in paragraph (a), for “became a patient” substitute
in subsection (5), for “a patient within the meaning of Part VII of the Mental Health Act 1983” substitute
In section 20(7) of the Disability Discrimination Act 1995 (c. 50)
(regulations to disapply provisions about incapacity), in paragraph (b), for “Part VII of the Mental Health Act 1983” substitute
The Trusts of Land and Appointment of Trustees Act 1996 (c. 47) is amended as follows.
In section 9 (delegation by trustees), in subsection (6), for the words from “an enduring power” to the end substitute
In section 20 (the title to which becomes
in subsection (1)(a), for “is incapable by reason of mental disorder of exercising” substitute
in subsection (2)—
for paragraph (a) substitute—
a deputy appointed for the trustee by the Court of Protection,
in paragraph (b), for the words from “a power of attorney” to the end substitute
in paragraph (c), for the words from “the authority” to the end substitute
In section 4(5) of the Human Rights Act 1998 (c. 42) (courts which may make declarations of incompatibility), after paragraph (e) insert—
the Court of Protection, in any matter being dealt with by the President of the Family Division, the Vice-Chancellor or a puisne judge of the High Court.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In section 52(1)(a) of the Adoption and Children Act 2002 (c. 38)
(parental consent to adoption), for “is incapable of giving consent” substitute
The Licensing Act 2003 (c. 17) is amended as follows.
In section 27(1) (lapse of premises licence), for paragraph (b) substitute—
becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to hold the licence,
In section 47 (interim authority notice in relation to premises licence)—
in subsection (5), for paragraph (b) substitute—
the former holder lacks capacity (within the meaning of the Mental Capacity Act 2005) to hold the licence and that person acts for him under an enduring power of attorney or lasting power of attorney registered under that Act,
in subsection (10), omit the definition of “mentally incapable”.
The Courts Act 2003 (c. 39) is amended as follows.
In section 1(1) (the courts in relation to which the Lord Chancellor must discharge his general duty), after paragraph (a) insert—
the Court of Protection,
In section 64(2) (judicial titles which the Lord Chancellor may by order alter)—
omit the reference to a Master of the Court of Protection, and
at the appropriate place insert a reference to each of the following—
Senior Judge of the Court of Protection,
President of the Court of Protection,
Vice-president of the Court of Protection.