11.—(1) A lasting power of attorney is a power of attorney under which the donor (“P”) confers on the donee (or donees) authority to make decisions about all or any of the following:
(a)
P’s personal welfare or specified matters concerning P’s personal welfare;
(b)
P’s property and affairs or specified matters concerning P’s property and affairs,
when P no longer has capacity to make such decisions.
(2) A lasting power of attorney is not created unless —
(a)
section 12 is complied with;
(b)
an instrument conferring authority of the kind mentioned in subsection (1) —
(i)
being one executed by P before the date of commencement of section 4 of the Mental Capacity (Amendment) Act 2021 — is made and registered in accordance with the First Schedule as in force immediately before that date; or
(ii)
being one executed by P on or after the date of commencement of section 4 of the Mental Capacity (Amendment) Act 2021 —
(A)
is made using the electronic transaction system in accordance with section 12A and the First Schedule, or (in a case under subsection (2A)) is made in accordance with the First Schedule; and
(B)
is registered in accordance with the First Schedule; and
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(c)
at the time when P executes the instrument, P has attained the age of 21 years and has capacity to execute it.
(2A) The Public Guardian may allow an instrument conferring authority of the kind mentioned in subsection (1) to be made in accordance with the First Schedule, without using the electronic transaction system, in any one or more of the following circumstances:
(a)
the donor is unable to make the instrument using the electronic transaction system due to the donor’s physical disability or other circumstance;
(b)
the donee is unable to sign the instrument using the electronic transaction system due to the donee’s physical disability or other circumstance;
(c)
the electronic transaction system is unavailable;
(d)
any other prescribed circumstances.
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(3) Subject to section 12B, an instrument which —
(a)
purports to create a lasting power of attorney; but
(b)
does not comply with this section, section 12 or the First Schedule,
confers no authority.
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(4) The authority conferred by a lasting power of attorney is subject to —
(a)
the provisions of this Act and, in particular, sections 3 (principles) and 6 (best interests); and
(b)
any conditions or restrictions specified in the instrument.
(5) On or after the date of commencement of section 4 of the Mental Capacity (Amendment) Act 2021, the Public Guardian may return any non-electronic lasting power of attorney that is kept by the Public Guardian (whether registered before, on or after that date) to its donor if —
(a)
the Public Guardian has ensured that an electronic copy of the lasting power of attorney (including all the notes attached to it under this Act), that is free from any relevant error, is made, and kept in the electronic transaction system (called in this section the electronic copy);
(b)
the return of the non-electronic lasting power of attorney is accompanied by a notice to the effect that unless the Public Guardian is notified by the donor of any relevant error in the electronic copy within 90 days (or any longer prescribed period) after the date of the notice, the electronic copy will be treated as being free from any relevant error and as the lasting power of attorney; and
(c)
a notice is sent to the donee of the lasting power of attorney (or if there is more than one donee, each of them) to the effect that where the donor lacks capacity to verify whether there is a relevant error in the electronic copy or to give a notice to the Public Guardian of any relevant error in the electronic copy, then the donee (or if there is more than one donee, any of them) may give a notice to the Public Guardian of any relevant error in the electronic copy within 90 days (or any longer prescribed period) after the date of the notice, and unless this is done the electronic copy will be treated as being free from any relevant error and as the lasting power of attorney.
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(6) The Public Guardian may also send —
(a)
a notice mentioned in subsection (5)(b) to the donor of a non-electronic lasting power of attorney that was registered before the date of commencement of section 4 of the Mental Capacity (Amendment) Act 2021; and
(b)
a notice mentioned in subsection (5)(c) to the donee of such lasting power of attorney (or if there is more than one donee, each of them),
where —
(c)
the Public Guardian has, before that date, returned the non-electronic lasting power of attorney to its donor or donee (or if there is more than one donee, any of them); and
(d)
the Public Guardian has before or after such return ensured that an electronic copy of the lasting power of attorney (including all the notes attached to it under this Act), that is free from any relevant error, was made and is kept in the electronic transaction system (also called in this section the electronic copy).
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(7) The donor of a non-electronic lasting power of attorney who received a notice mentioned in subsection (5)(b) may within 90 days (or any longer prescribed period) after the date of the notice, give a notice to the Public Guardian of any relevant error in the electronic copy (called in this section a notice of error).
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(8) A donee of a non-electronic lasting power of attorney who received a notice mentioned in subsection (5)(c) may, if the donor of the lasting power of attorney lacks capacity to verify whether there is a relevant error in the electronic copy or to give a notice to the Public Guardian of any relevant error in the electronic copy, within 90 days (or any longer prescribed period) after the date of the notice, give a notice to the Public Guardian of any relevant error in the electronic copy (also called in this section a notice of error).
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(9) A notice of error under subsection (8) must be accompanied by a certificate from a registered medical practitioner verifying the lack of capacity of the donor to carry out any act described in that subsection, or to undertake tasks of a similar nature.
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(10) On receipt of a notice of error under subsection (7) or (8), the Public Guardian may, if satisfied that there is a relevant error in the electronic copy, rectify the relevant error.
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(11) The Public Guardian must give a written notice of the Public Guardian’s decision whether or not to rectify the relevant error to the donor and to the donee or (if there is more than one donee) every donee.
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(12) Subject to sections 15A and 16A, the electronic copy of a non-electronic lasting power of attorney is treated as being free from any relevant error and as the lasting power of attorney —
(a)
if no notice of error is received by the Public Guardian by the last day of the period mentioned in subsection (5)(b) or (c), whichever is the later — on the next day (called in this section the expiry day); or
(b)
if a notice of error is received by the Public Guardian within the period mentioned in subsection (5)(b) or (c) —
(i)
where the Public Guardian decides to rectify the relevant error — on the later of the following:
(A)
the expiry day;
(B)
the day on which the Public Guardian rectifies the relevant error; or
(ii)
where the Public Guardian decides not to rectify the relevant error — on the later of the following:
(A)
the expiry day;
(B)
the day on which the Public Guardian sends the written notice under subsection (11).
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(13) To avoid doubt, the treatment of the electronic copy of a non-electronic lasting power of attorney as being free from any relevant error and as the lasting power of attorney under subsection (12) does not affect the rights and obligations of any party under the lasting power of attorney, and the date of registration of the lasting power of attorney remains as the date of registration of the non-electronic lasting power of attorney.
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(14) In this section, “relevant error”, in relation to an electronic copy of a non-electronic lasting power of attorney, means any disparity or inconsistency between the electronic copy and the lasting power of attorney that is registered by the Public Guardian.
