9. The principal Rules are amended by inserting, immediately before Appendix A, the following Order: Interpretation (O. 99, r. 1) |
1.—(1) In this Order, unless the context otherwise requires — “Act” means the Mental Capacity Act 2008 (Act 22 of 2008), and any reference to a section shall be construed as a reference to a section in the Act; |
“P” means a person who lacks or, so far as consistent with the context, is alleged to lack capacity (within the meaning of the Act) and to whom any proceedings under the Act relate; |
“practice directions” means any practice directions for the time being issued by the Registrar; |
“relevant person” means a person (other than a named defendant) who is specified in any practice directions to be a person to be served under Rule 5 with an application under the Act, and different persons may be specified for different applications under the Act. |
(2) Expressions used in this Order which are used in the Act have the same meanings in this Order as in the Act. |
(3) Subject to this Order, these Rules shall apply, with the necessary modifications, to proceedings under the Act. |
(4) Order 76, Rules 3 to 6 and 14 shall not apply to any proceedings under the Act. |
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Commencement of proceedings (O. 99, r. 2) |
2.—(1) Unless otherwise provided in the Act or these Rules, every application to the Court under the Act must be made by originating summons in Form 4 or 5. (2) Subject to section 38(1) and paragraph (3), the plaintiff or applicant must apply for permission to commence proceedings under the Act. |
(3) The permission of the Court is not required where —(a) | an application is made by any person related by blood or marriage to P; | (b) | an application is made for an order under section 36; or | (c) | an application is made to object to the registration of a lasting power of attorney by a person named in that lasting power of attorney under rule 2(1)(c)(i) of the First Schedule to the Act. |
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Title of proceedings (O. 99, r. 3) |
3. Every originating summons to which this Order relates, and all affidavits, notices and other documents in those proceedings, must be entitled in the matter of the Act and in the matter of P. |
Parties to proceedings (O. 99, r. 4) |
4.—(1) Unless the Court otherwise orders, the parties to any proceedings under the Act are — (a) | the plaintiff or applicant; and | (b) | any person who is named as a defendant in the proceedings and who has entered an appearance in respect of the proceedings. |
(2) The Court may order that a person be joined as a party, if the Court considers that it is desirable to do so. |
(3) The Court may at any time direct that any person who is a party to the proceedings is to be removed as a party. |
(4) Unless the Court otherwise orders, P shall not be named as a defendant to any proceedings under the Act. |
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Service of application on named defendants and relevant persons (O. 99, r. 5) |
5.—(1) Where an application under the Act is made by originating summons in Form 4, as soon as practicable, and in any event within 21 days, after the date on which the application is filed, the plaintiff shall serve the application, together with each affidavit or other document filed in support of the application, on each person who is named as a defendant in the proceedings and on each relevant person. (2) In respect of each person who is named as a defendant in the proceedings and each relevant person, the plaintiff shall, within 8 days after the date on which that person was served with the application, file an affidavit of service. |
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General requirement to notify P of certain matters (O. 99, r. 6) |
6.—(1) Subject to paragraphs (6) and (7), P shall be notified — (a) | where an application under the Act has been filed or withdrawn, or a date has been fixed for the hearing of the application, of the filing or withdrawal of the application or of the date on which the application will be heard (as the case may be); | (b) | where a notice of appeal against an order made by the Court under the Act has been filed or withdrawn, or a date has been fixed for the hearing of the appeal, of the filing or withdrawal of the notice of appeal or of the date on which the appeal will be heard (as the case may be); | (c) | where an order which affects P has been made by the Court under the Act, of the effect of the order; and | (d) | where the Court directs that P is to be notified, of such matters as the Court may direct. |
(2) The notification shall be effected on P in a manner appropriate to P's circumstances and in accordance with any practice directions, by —(a) | the plaintiff, applicant or appellant (as the case may be); or | (b) | such other person as the Court may direct. |
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(3) Subject to paragraph (4), the notification shall be effected on P as soon as practicable, and in any event within 21 days, after the date on which —(a) | the application referred to in paragraph (1)(a), or notice of appeal referred to in paragraph (1)(b), was filed or withdrawn (as the case may be); | (b) | the person effecting the notification received notice from the Court of the date fixed for the hearing of the application referred to in paragraph (1)(a) or the appeal referred to in paragraph (1)(b) (as the case may be); | (c) | the order referred to in paragraph (1)(c) was made; or | (d) | the direction referred to in paragraph (1)(d) was given. |
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(4) Notwithstanding paragraph (3), where P is to be notified that a date has been fixed for the hearing of an application or appeal referred to in paragraph (1), the notification shall be effected on P no later than 14 days before the date fixed for the hearing of the application or appeal (as the case may be). |
(5) The person effecting the notification shall, within 8 days after the date on which P was notified under this Rule, file a certificate of notification which certifies —(a) | the date on which P was notified; and | (b) | such other particulars concerning the notification of P as may be specified in any practice directions. |
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(6) Notwithstanding paragraph (1)(a), (b) or (c) —(a) | the plaintiff, applicant, appellant or other person directed by the Court to effect the notification may apply to the Court for an order to dispense with the requirement to notify P under this Rule; and | (b) | the Court may grant such an order. |
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(7) Where P is or is made a party to any proceedings under the Act —(a) | paragraphs (1)(a), (b) and (c) and (2) to (6) shall not apply or shall cease to apply (as the case may be); and | (b) | if P has a litigation representative, all documents to be served on P shall be served on his litigation representative. |
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Court may require attendance of P, etc. (O. 99, r. 7) |
7. The Court may require P, P's litigation representative (if any) and any party to any proceedings under the Act to attend at any hearing of those proceedings. |
Litigation representative for P (O. 99, r. 8) |
8.—(1) Subject to paragraph (2), if P is or is made a party to any proceedings under the Act, P shall have a litigation representative for those proceedings. (2) The Court may, on its own motion or on the application of any person (including P), permit P to conduct any proceedings under the Act without a litigation representative, if the Court is of the opinion that P does not lack capacity to conduct those proceedings himself (regardless of whether P lacks capacity in relation to the matter or matters to which the proceedings relate). |
(3) Subject to paragraph (4), if there is a deputy appointed or deemed to be appointed by the Court under the Act, or a donee under a lasting power of attorney registered under the Act, with power in relation to P for the purposes of the Act, who is given power to conduct legal proceedings in P's name or on P's behalf, the deputy or donee (as the case may be) shall be a litigation representative of P. |
(4) Paragraph (3) shall not apply in relation to any proceedings under the Act in which the deputy or donee (as the case may be) is a party in his own capacity. |
(5) If there is no deputy or donee referred to in paragraph (3), or if paragraph (4) applies, the Court shall appoint as a litigation representative for P —(a) | any person who applies to be the litigation representative, and whom the Court is satisfied —(i) | is competent and willing to conduct proceedings on behalf of P; and | (ii) | has no interests adverse to those of P; or |
| (b) | if there is no such person —(i) | in any case where the proceedings relate solely to P's personal welfare, the Director of Social Welfare; | (ii) | in any case where the proceedings relate solely to P's property and affairs, the Public Trustee; or | (iii) | in any case where the proceedings relate both to P's personal welfare and to P's property and affairs, either the Director of Social Welfare acting alone, or both the Director of Social Welfare and the Public Trustee acting together, as the Court deems appropriate. |
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(6) A person may be appointed under paragraph (5) as a litigation representative for P for all or any proceedings under the Act. |
(7) Practice directions may make additional or different provision in relation to litigation representatives. |
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Applications relating to lasting powers of attorney (O. 99, r. 9) |
9.—(1) Where the application relates to the powers of the Court under section 17 or 18, the plaintiff or applicant shall serve all documents filed in respect of the application —(a) | unless he is the donor or a donee of the lasting power of attorney, on the donor and every donee of the power of attorney; | (b) | if he is the donor of the lasting power of attorney, on every donee of the power of attorney; and | (c) | if he is a donee of the lasting power of attorney, on the donor and every other donee of the power of attorney, |
but only if those persons have not been served or notified under this Order or any direction of the Court. |
(2) The plaintiff shall comply with paragraph (1) as soon as practicable, and in any event within 21 days, after the date on which the application was filed. |
(3) In respect of each person to be served with documents under paragraph (1), the plaintiff shall, within 8 days after the date on which that person was served with those documents, file an affidavit of service. |
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Requirements for certain applications (O. 99, r. 10) |
10. Practice directions may make additional or different provision in relation to the requirements for any application under the Act which is specified in those practice directions. |
Reports under section 37 (O. 99, r. 11) |
11.—(1) This Rule applies where the Court requires a report to be made to it under section 37. (2) The person who is required to make the report shall assist the Court on matters within his expertise. |
(3) Unless the Court otherwise directs, the person who is required to make the report shall —(a) | contact or seek to interview such persons as he thinks appropriate or as the Court directs; | (b) | to the extent that it is practicable and appropriate to do so, ascertain what P's wishes and feelings are, and the beliefs and values that would be likely to influence P if he had the capacity to make a decision in relation to the matter to which the application relates; | (c) | describe P's circumstances; and | (d) | address such other matters as are required in any practice directions or as the Court may direct. |
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(4) The Court may send a copy of the report, or an edited copy of the report, to the parties and to such persons as it deems appropriate. |
(5) Subject to paragraphs (6) and (7), the person who is required to make the report may examine and take copies of any document in the court records. |
(6) The Court may direct that the right to inspect documents under this Rule does not apply in relation to such documents, or descriptions of documents, as the Court may specify. |
(7) The Court may direct that any information is to be provided on an edited basis to the person who is required to make the report. |
(8) Where a report is made under section 37, the Court may, on the application of any party, permit written questions relevant to the issues before the Court to be put to the person who made the report. |
(9) The questions referred to in paragraph (8) shall be submitted to the Court, and the Court may put them to the person who made the report with such amendments (if any) as it thinks fit, and that person shall give his replies in writing to the questions so put. |
(10) The Court may send a copy of the replies referred to in paragraph (9) given by the maker of the report under this Rule to the parties and to such other persons as it deems appropriate. |
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Public Guardian (O. 99, r. 12) |
12.—(1) Where the Court makes an order —(a) | appointing a person to act as a deputy; | (b) | varying an order under which a deputy has been appointed; | (c) | determining any question referred to in section 17(2); | (d) | directing that an instrument purporting to create a lasting power of attorney is not to be registered; or | (e) | revoking a lasting power of attorney, whether wholly or only so far as it relates to any of the donees, |
a copy of the order will be served by the Registrar on the Public Guardian within 8 days after the date on which the order was drawn up and filed in accordance with Order 42, Rule 10, in order to enable the Public Guardian to discharge his functions under section 31 in relation to deputies and lasting powers of attorney. |
(2) A copy of any order of the Court —(a) | requiring the Public Guardian to do something, or not to do something; or | (b) | in respect of any matter which the Act requires the Public Guardian to be notified of, |
will be served by the Registrar on the Public Guardian within 8 days after the date on which the order was drawn up and filed in accordance with Order 42, Rule 10. |
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13.—(1) The costs of proceedings under the Act shall be paid by P or charged to his estate, unless the Court otherwise directs. (2) Where the Court orders that a deputy or a donee under a lasting power of attorney is entitled to remuneration out of P's estate for discharging his functions as such, the Court may make such order as it thinks fit, including an order that the deputy or donee (as the case may be) —(a) | be paid a fixed amount; or | (b) | be paid at a specified rate. |
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Transitional provisions (O. 99, r. 14) |
14.—(1) This Rule applies in any case where a person becomes a deputy by virtue of rule 1(2) of the Fourth Schedule to the Act. (2) The deputy may make an application to the Court for —(a) | any decision in connection with the day-to-day management of P's property and affairs; or | (b) | any supplementary decision which is necessary to give full effect to any order made, or directions given, before 1st March 2010 under Part I of the Mental Disorders and Treatment Act (Chapter 178) in force immediately before that date. |
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(3) The Court may, in determining any application under paragraph (2), treat the application as if it were an application to vary the functions or powers of the deputy, and may exercise its powers under section 20 accordingly. |
(4) Without prejudice to section 24(10)(b), the Court may, on its own motion or on the application of any person, order the deputy to render to the Public Guardian such accounts relating to P as the Court may direct, even after the deputy has been discharged. |
(5) The Court shall not make an order under paragraph (4) unless the deputy has been given an opportunity to be heard.”. |
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