Duties of attorney in event of actual or impending incapacity of donor
4. (1) Sub-paragraphs (2) to (6) apply if the attorney under an enduring power has reason to believe that the donor is or is becoming mentally incapable.
(2) The attorney must, as soon as practicable, make an application to the Public Guardian for the registration of the instrument creating the power.
(3) Before making an application for registration the attorney must comply with the provisions as to notice set out in Part 3 of this Schedule.
(4) An application for registration-
- (a) must be made in the prescribed form, and
- (b) must contain such statements as may be prescribed.
(5) The attorney-
- (a) may, before making an application for the registration of the instrument, refer to the court for its determination any question as to the validity of the power, and
- (b) must comply with any direction given to him by the court on that determination.
(6) No disclaimer of the power is valid unless and until the attorney gives notice of it to the Public Guardian; and the Public Guardian must notify the donor if he receives a notice under this sub-paragraph.
(7) A person who, in an application for registration, makes a statement which he knows to be false in a material particular is guilty of an offence and is liable-
- (a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;
- (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.
(8) In this paragraph, "prescribed" means prescribed by regulations made for the purposes of this Schedule by the Lord Chancellor.
The Mental Capacity Act 2005 has been fully in force since 1 October 2007. For details of proposed amendments, see Mental Health Act 2007.