PART 5 | GENERAL POWERS OF COURT AND APPOINTMENT OF DEPUTIES |
| Power to make declarations |
19.—(1) The court may make declarations as to —| (a) | whether a person has or lacks capacity to make a decision specified in the declaration; | | (b) | whether a person has or lacks capacity to make decisions on the matters described in the declaration; | | (c) | 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. |
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| Powers to make decisions and appoint deputies: general |
20.—(1) This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning —| (a) | P’s personal welfare; or | | (b) | P’s property and affairs. |
(2) The court may —| (a) | by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters; or | | (b) | appoint a person (called in this Act a deputy) to make decisions on P’s behalf in relation to the matter or matters. |
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| (3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 3 (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) | a decision by the court is to be preferred to the appointment of a deputy to make a decision; and | | (b) | the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. |
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| (5) Subject to section 25 (restrictions on deputies), the court may make such further orders or give such directions, and confer on a deputy such powers or impose on the deputy 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 affecting 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 the deputy if it is satisfied that —| (a) | the deputy is convicted, on or after 1 September 2018 (but not before the deputy’s appointment by the court), of an offence (whenever committed) of criminal misappropriation, criminal breach of trust, cheating, theft or extortion or any other offence involving fraud or dishonesty, whether as against P or another person; | | (b) | the deputy engages or has engaged in conduct that contravenes the deputy’s authority conferred by the court, or that is not in P’s best interests (whether or not the deputy is acting under a court order); | | (c) | the deputy proposes to engage in conduct that would contravene the deputy’s authority conferred by the court, or that would not be in P’s best interests (whether or not the deputy is acting under a court order); or | | (d) | where the deputy is a professional deputy, the registration of the deputy as a professional deputy is cancelled. [10/2016] |
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| Powers to make decisions and appoint deputies: minors |
21.—(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 P 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. |
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| Section 20 powers: personal welfare |
22.—(1) The powers under section 20 as respects P’s personal welfare include —| (a) | deciding where P is to live; | | (b) | deciding what contact (if any) P is to have with any specified person; | | (c) | making an order prohibiting a named person from having contact with P; | | (d) | 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; | | (e) | giving, refusing or revoking of appropriate consent involving P under the Human Biomedical Research Act 2015; and | | (f) | giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility. [29/2015] |
(2) Subsection (1) —| (a) | is subject to section 25 (restrictions on deputies); and | | (b) | does not affect any other order or decision which may be made by the court or deputy under any other written law. |
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| (3) Nothing in subsection (1)(d) affects the operation of the Advance Medical Directive Act 1996. |
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| Section 20 powers: property and affairs |
23.—(1) Subject to this section, the powers under section 20 as respects P’s property and affairs include —| (a) | the control and management of P’s property; | | (b) | the sale, exchange, charging, gift or other disposition of P’s property; | | (c) | the acquisition of property in P’s name or on P’s behalf; | | (d) | the carrying on, on P’s behalf, of any profession, trade or business; | | (e) | the taking of a decision which will have the effect of dissolving a partnership of which P is a member; | | (f) | the carrying out of any contract entered into by P; | | (g) | the discharge of P’s debts and of any of P’s obligations, whether legally enforceable or not; | | (h) | the settlement of any of P’s property by way of trust, whether for P’s benefit or for the benefit of others; | | (i) | the making, on P’s behalf, of any nomination under section 132(2) or 133(2) of the Insurance Act 1966; | | (j) | where any nomination under section 132(2) or 133(2) of the Insurance Act 1966 has been made by P or on P’s behalf, the revoking, on P’s behalf, of that nomination under section 132(7) or 133(4) (as the case may be) of that Act; | | (k) | the execution for P of a will; | | (l) | the executing under section 15(6A) or 25(1) of the Central Provident Fund Act 1953, on P’s behalf, of any memorandum under section 25(1) of that Act; | | (m) | 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; | | (n) | 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; | | (o) | the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee under a trust; | | (p) | the conduct of legal proceedings in P’s name or on P’s behalf. |
| (2) Without affecting 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(7). |
| (3) No will may be made under subsection (1)(k) 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. |
| (5) Section 20(7) is subject to paragraph 6 of the Second Schedule. |
| (6) Subsection (1) is subject to section 25 (restrictions on deputies). |
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24.—(1) A deputy appointed by the court must be —| (a) | where the appointment confers powers relating only to P’s property and affairs —| (i) | an individual who has attained the age of 21 years and provides to P the services of a deputy without remuneration; | | (ii) | an individual who is a professional deputy and is not related to P by blood or marriage; or | | (iii) | a professional deputy who is not an individual; and |
| | (b) | in any other case —| (i) | an individual who has attained the age of 21 years and provides to P the services of a deputy without remuneration; or | | (ii) | an individual who is a professional deputy and is not related to P by blood or marriage. [10/2016] |
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| (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 the person’s consent. |
(4) The court may appoint 2 or more deputies to act —| (a) | jointly; | | (b) | jointly and severally; or | | (c) | jointly in respect of some matters and jointly and severally in respect of others. |
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(5) When appointing a deputy, the court may at the same time appoint one or more other persons to succeed the deputy (each called in this Act a successor deputy) —| (a) | in such circumstances, or on the happening of such events, as may be specified by the court; and | | (b) | for such period as may be specified by the court. |
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| (6) In the case of an application to which section 21 applies, the court is to 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 the deputy within the scope of the deputy’s appointment and in accordance with this Part. |
| (8) A deputy under subsection (1)(a)(i) or (b)(i) is entitled to be reimbursed out of P’s property for the deputy’s reasonable expenses in discharging the deputy’s functions, but is not entitled to remuneration. [10/2016] |
(9) A deputy under subsection (1)(a)(ii) or (iii) or (b)(ii) is entitled —| (a) | to be reimbursed out of P’s property for the deputy’s reasonable expenses in discharging the deputy’s functions; and | | (b) | to such remuneration, as the court determines, out of P’s property for discharging the deputy’s functions. [10/2016] |
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(10) The court may confer on a deputy powers to —| (a) | take possession or control of all or any specified part of P’s property; | | (b) | exercise all or any specified powers in respect of it, including such powers of investment as the court may determine. |
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(11) The court may require a deputy —| (a) | to give to the Public Guardian such security as the court thinks fit for the due discharge of the deputy’s functions; and | | (b) | to submit to the Public Guardian such reports at such times or at such intervals as the court may direct. |
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25.—(1) A deputy does not have power to make a decision on behalf of P in relation to a matter if the deputy 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 —| (a) | to prohibit a named person from having contact with P; or | | (b) | to direct a person responsible for P’s health care to allow a different person to take over that responsibility. |
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(3) A deputy may not be given powers with respect to —| (a) | the disposition of P’s property by making gifts; | | (b) | the making, on P’s behalf, of any nomination under section 132(2) or 133(2) of the Insurance Act 1966; | | (c) | where any nomination under section 132(2) or 133(2) of the Insurance Act 1966 has been made by P or by the court on P’s behalf, the revoking, on P’s behalf, of that nomination under section 132(7) or 133(4) (as the case may be) of that Act; | | (d) | the execution for P of a will; | | (e) | the executing under section 15(6A) or 25(1) of the Central Provident Fund Act 1953, on P’s behalf, of any memorandum under section 25(1) of that Act; | | (f) | 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; or | | (g) | the carrying out or continuation of —| (i) | life-sustaining treatment on P, whether or not amounting to extraordinary life-sustaining treatment within the meaning of section 2 of the Advance Medical Directive Act 1996; or | | (ii) | any other treatment on P which a person providing health care reasonably believes is necessary to prevent a serious deterioration in P’s condition. |
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| (4) A deputy may not be given power to make a decision on behalf of P which is inconsistent with a decision made by the donee of a lasting power of attorney granted by P (or, if there is more than one donee, by any of them) that is within the scope of the donee’s authority and in accordance with this Act. |
| (5) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 3 (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 the deputy 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 —| (a) | the likelihood of P’s suffering harm; or | | (b) | the seriousness of that harm. |
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(11) For the purposes of this section, a deputy restrains P if the deputy —| (a) | uses, or threatens to use, force to secure the doing of an act which P resists; or | | (b) | restricts P’s liberty of movement, whether or not P resists, |
| or if the deputy authorises another person to do any of those things. |
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| 25A.—(1) Any person who intends to offer and provide the services of a deputy for remuneration must register with the Public Guardian as a professional deputy. [10/2016] | (2) The Public Guardian may register a person as a professional deputy upon being satisfied that the person meets all the prescribed criteria. [10/2016] |
| (3) A professional deputy’s registration under this section may be subject to such terms and conditions as the Public Guardian may specify. [10/2016] |
| (4) The Public Guardian may cancel the registration of a professional deputy at the professional deputy’s request or upon the occurrence of any prescribed event. [10/2016] |
| (5) Before cancelling a professional deputy’s registration upon the occurrence of any prescribed event, the Public Guardian must give the professional deputy written notice of the intention to cancel the registration. [10/2016] |
| (6) The professional deputy may make representations to the Public Guardian within the prescribed period after receiving the notice in subsection (5). [10/2016] |
| (7) The Public Guardian must consider any representations made by the professional deputy under subsection (6) before making a decision. [10/2016] |
| (8) The Public Guardian must inform the professional deputy in writing of the decision within the prescribed period after the end of the period in subsection (6) for making representations. [10/2016] |
| (9) Any person who is aggrieved by the Public Guardian’s refusal to register the person as a professional deputy or cancellation of the person’s registration as a professional deputy may within the prescribed period appeal to the Minister, whose decision is final. [10/2016] |
(10) Where a person’s registration as a professional deputy is cancelled, the Public Guardian must within the prescribed period inform all the following persons of the cancellation:| (a) | where the person has been appointed as a donee in any lasting power of attorney, the donor of the lasting power of attorney; | | (b) | the prescribed person or persons, if any. [10/2016] |
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