PART IV | LASTING POWERS OF ATTORNEY |
| Lasting powers of attorney |
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) is made and registered in accordance with the First Schedule; and | | (c) | at the time when P executes the instrument, P has attained the age of 21 years and has capacity to execute it. |
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(3) 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, |
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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 (the principles) and 6 (best interests); and | | (b) | any conditions or restrictions specified in the instrument. |
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12.—(1) A donee of a lasting power of attorney must be —| (a) | an individual who has attained the age of 21 years; or | | (b) | if the power relates only to P’s 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) A person who is an undischarged bankrupt may not be appointed as donee of a lasting power of attorney in relation to P’s property and affairs. |
| (3) Subsections (4) to (7) apply in relation to an instrument under which 2 or more persons are to act as donees of a lasting power of attorney. |
(4) The instrument may appoint them 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) To the extent to which it does not specify whether they are to act jointly or jointly and severally, the instrument is to be assumed to appoint them to act jointly. |
| (6) If they are to act jointly, a failure, as respects one of them, to comply with the requirements of subsection (1) or (2) or Part I or II of the First Schedule prevents a lasting power of attorney from being created. |
(7) If they are to act jointly and severally, a failure, as respects one of them, to comply with the requirements of subsection (1) or (2) or Part I or II of the First Schedule —| (a) | prevents the appointment taking effect in his case; but | | (b) | does not prevent a lasting power of attorney from being created in the case of the other or others. |
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(8) An instrument used to create a lasting power of attorney —| (a) | cannot give the donee (or, if more than one, any of them) power to appoint a substitute or successor; but | | (b) | may itself appoint a person to replace the donee (or, if more than one, any of them) on the occurrence of an event mentioned in section 15(5)(a) to (d) which has the effect of terminating the donee’s appointment. |
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| Lasting powers of attorney: restrictions |
13.—(1) A donee under a lasting power of attorney (or, if more than one, any of them) may only make decisions under the lasting power of attorney where P lacks, or the donee reasonably believes that P lacks capacity.| (2) A lasting power of attorney does not authorise the donee (or, if more than one, any of them) to do an act that is intended to restrain P, unless 2 further conditions are satisfied. |
| (3) The first condition is that the donee reasonably believes that it is necessary to do the act in order to prevent harm to P. |
(4) The second condition is that the act is a proportionate response to —| (a) | the likelihood of P’s suffering harm; and | | (b) | the seriousness of that harm. |
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(5) For the purposes of this section, the donee restrains P if he —| (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 he authorises another person to do any of those things. |
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| (6) Subject to subsection (8), where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P’s personal welfare, the authority extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P if, and only if, the instrument contains express provision to that effect. |
| (7) For the purposes of subsection (6), treatment, in relation to P, includes the conduct of a clinical trial on P. |
(8) Notwithstanding anything in the lasting power of attorney, a donee authorised to make decisions about P’s personal welfare may not make any decision with respect to the carrying out or continuation of —| (a) | 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 (Cap. 4A); or | | (b) | 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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| (9) Notwithstanding anything in the lasting power of attorney, a donee authorised to make decisions about P’s property and affairs may not execute a will for P. |
| (10) Notwithstanding any other provision of this Act, a person dealing with a donee in matters relating to P’s property may require the donee to produce a certificate from a registered medical practitioner stating that P’s lack of capacity is likely to be permanent, and if the donee fails to produce such certificate, the person may refuse to accept the donee’s authority to make decisions for P in such matters. |
| (11) This section is without prejudice to any other power conferred on a donee of a lasting power of attorney under any other written law. |
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| Scope of lasting powers of attorney: gifts |
14.—(1) Where a lasting power of attorney confers authority to make decisions about P’s property and affairs, it does not authorise a donee (or, if more than one, any of them) to dispose of the donor’s property by making gifts except to the extent permitted under subsections (2) and (3).| (2) The donee may make gifts if, and only if, the lasting power of attorney contains express authorisation to that effect. |
(3) Where the express authorisation in the lasting power of attorney does not specify the value of the gift or gifts to be made, the donee —| (a) | may make a gift or gifts of such value which are not unreasonable having regard to all the circumstances and, in particular, the size of the donor’s estate; and | | (b) | must have regard to the principle in section 6(6). |
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| (4) Subsection (3) is without prejudice to section 11(4). |
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| Revocation of lasting powers of attorney, etc. |
15.—(1) This section applies if —| (a) | P has executed an instrument with a view to creating a lasting power of attorney; or | | (b) | a lasting power of attorney is registered as having been conferred by P, |
| and in this section, references to revoking the power include revoking the instrument. |
| (2) P may, at any time when he has capacity to do so, revoke the power. |
| (3) P’s bankruptcy revokes the power so far as it relates to P’s property and affairs. |
(4) The occurrence in relation to a donee of an event mentioned in subsection (5) —| (a) | terminates his appointment; and | | (b) | except in the cases given in subsection (6), revokes the power. |
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(5) The events are —| (a) | the disclaimer of the appointment by the donee in accordance with such requirements as may be prescribed for the purposes of this section in regulations made under this Act; | | (b) | subject to subsection (7), the death or bankruptcy of the donee or, if the donee is a person other than an individual, its liquidation, winding-up, dissolution or being under judicial management; | | (c) | subject to subsection (8), the dissolution or annulment of a marriage between the donor and the donee; | | (d) | the lack of capacity of the donee. |
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(6) The cases referred to in subsection (4)(b) are —| (a) | the donee is replaced under the terms of the instrument; | | (b) | he is one of 2 or more persons appointed to act as donees jointly and severally in respect of any matter and, after the event, there is at least one remaining donee. |
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| (7) The bankruptcy of a donee does not terminate his appointment, or revoke the power, in so far as his authority relates to P’s personal welfare. |
| (8) The dissolution or annulment of a marriage between the donor and the donee does not terminate the appointment of a donee, or revoke the power, if the instrument provided that it was not to do so. |
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| Protection of donee and others if no power created or power revoked |
16.—(1) Subsections (2) and (3) apply if —| (a) | an instrument has been registered under the First Schedule as a lasting power of attorney; but | | (b) | a lasting power of attorney was not created, |
| whether or not the registration has been cancelled at the time of the act or transaction in question. |
(2) A donee who acts in purported exercise of the power does not incur any liability (to P or any other person) because of the non-existence of the power unless at the time of acting he —| (a) | knows that a lasting power of attorney was not created; or | | (b) | is aware of circumstances which, if a lasting power of attorney had been created, would have terminated his authority to act as a donee. |
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| (3) Any transaction between the donee and another person is, in favour of that person, as valid as if the power had been in existence, unless at the time of the transaction that person has knowledge of a matter referred to in subsection (2). |
(4) If the interest of a purchaser depends on whether a transaction between the donee and the other person was valid by virtue of subsection (3), it is conclusively presumed in favour of the purchaser that the transaction was valid if —| (a) | the transaction was completed within 12 months of the date on which the instrument was registered; or | | (b) | the other person makes a statutory declaration, before or within 3 months after the completion of the purchase, that he had no reason at the time of the transaction to doubt that the donee had authority to dispose of the property which was the subject of the transaction. |
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| (5) Where 2 or more donees are appointed under a lasting power of attorney, this section applies as if references to the donee were to all or any of them. |
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| Powers of court in relation to validity of lasting powers of attorney |
17.—(1) This section and section 18 apply if —| (a) | a person (“P”) has executed or purported to execute an instrument with a view to creating a lasting power of attorney; or | | (b) | an instrument has been registered as a lasting power of attorney conferred by P. |
(2) The court may determine any question relating to —| (a) | whether one or more of the requirements for the creation of a lasting power of attorney have been met; | | (b) | whether the power has been revoked or has otherwise come to an end. |
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(3) Subsection (4) applies if the court is satisfied —| (a) | that fraud or undue pressure was used to induce P —| (i) | to execute an instrument for the purpose of creating a lasting power of attorney; or | | (ii) | to create a lasting power of attorney; or |
| | (b) | that the donee (or, if more than one, any of them) of a lasting power of attorney —| (i) | has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests; or | | (ii) | proposes to behave in a way that would contravene his authority or would not be in P’s best interests. |
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(4) The court may —| (a) | direct that an instrument purporting to create the lasting power of attorney is not to be registered; or | | (b) | if P lacks capacity to do so, revoke the instrument or the lasting power of attorney. |
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| (5) If there is more than one donee, the court may under subsection (4)(b) revoke the instrument or the lasting power of attorney so far as it relates to any of them. |
| (6) In this section, “donee” includes an intended donee. |
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| Powers of court in relation to operation of lasting powers of attorney |
18.—(1) The court may determine any question as to the meaning or effect of a lasting power of attorney or an instrument purporting to create one.(2) The court may —| (a) | give directions with respect to decisions —| (i) | which the donee of a lasting power of attorney has authority to make; and | | (ii) | which P lacks capacity to make; |
| | (b) | give any consent or authorisation to act which the donee would have to obtain from P if P had capacity to give it. |
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(3) The court may, if P lacks capacity to do so —| (a) | give directions to the donee with respect to the rendering by him of reports or accounts and the production of records kept by him for that purpose; | | (b) | require the donee to supply information or produce documents or things in his possession as donee; | | (c) | give directions with respect to the remuneration or expenses of the donee; | | (d) | relieve the donee wholly or partly from any liability which he has or may have incurred on account of a breach of his duties as donee. |
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| (4) The court may authorise the making of gifts which are not within section 14(3). |
| (5) Where 2 or more donees are appointed under a lasting power of attorney, this section applies as if references to the donee were to all or any of them. |
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