Joint Committee on Statutory Instruments Sixteenth Report


First Memorandum by the Lord Chancellor's Department

Court of Protection (Enduring Powers of Attorney) Rules 2001 (S.I. 2001/825)

1. The Lord Chancellor's Department submits this memorandum in response to the request dated 28 March 2001on the point set out below.

    (1)  Rule 7 requires an application to register an enduring power of attorney to be lodged not later than after 10 days after the date on which—

      (a)  notice has been given to the donor and every relative entitled to receive notice and every co-attorney; or

      (b)  leave has been given to dispense with notice whichever may be later."

      Explain the underlined words.

2. The underlined words are needed to convey the meaning that the 10 day period should not commence until, in relation to the last person entitled to notice under Schedule 1 to the Enduring Powers of Attorney Act 1985, such notice has either been given, or leave to dispense with it has been given. If sub-paragraphs (a) and (b) of rule 7 contained mutually exclusive options then the words "whichever may be later" would be incorrect because either sub-paragraph (a) or (b) could be relevant, but never both. But in this case (a) and (b) can apply simultaneously because situations may arise where notice is served on some entitled relatives, but leave to dispense with such service is obtained in relation to others. For example, the attorney's wife, W, and two children, A and B, might be entitled to notice. The attorney might wish to serve notice on W and A, but at the same time apply for leave to dispense with notice in respect of B, the 10 day period should start when both W and A have been serviced. Identical wording appeared in the Court of Protection (Enduring Powers of Attorney) Rules 1986 (S.I. 2000/127) ("the 1986 Rules") and the Court of Protection (Enduring Powers of Attorney) Rules 1994 (S.I. 1994/3047) ("the 1994 Rules") and, as far as the Department is aware, there has been no confusion as to its meaning during the 15 years for which it has been in force, but the Department will consider whether the intention can be expressed more clearly when the Rules are next amended.

    (2)  Under rule 23(3) any person aggrieved by an order or decision of the court made on considering an application for review may apply to the court for an attended hearing. Explain within what period of time the application for an attended hearing must be made, and why this is not specified.

3. In the absence of any specific time limit, the application must be made within such time as is reasonable. In the context of rules 23 and 24, especially the time limits in rules 23(1) and 24(1), a period of fourteen days would appear reasonable. Moreover, in the absence of any time limit in the rules, the court may well include in any order made on a review under rule 23 a direction that any application for an attended hearing be made within a specified time. The Department will, however, consider whether, when the Rules are next amended, a specific time limit should be introduced.

    (3)  Rule 25(1) states that where the court is satisfied that one of the circumstances listed in section 8(4) of the 1985 Act applies, it shall cancel the registration of the enduring power of attorney in question and send a notice to the attorney requiring him to deliver the original instrument to the court. Explain—

      (a)  why the first part of the rule as to the cancellation of the instrument has been included, given that this is already provided in section 8(4) itself;

      (b)  whether it is intended that the second part of the rule as to the delivery of the instrument should apply where the registration of that instrument has been cancelled under section 8(4)(c) of the 1985 Act (see section 8(6));

      (c)  whether the second part of the rule is intended to have the effect that the court should not be able to direct that an instrument need not be delivered up to be cancelled (see section 8(6)).

      In relation to rule 25(2), questions corresponding to (a) and (c).

4. In relation to questions (a), (b) and (c) on rule 25(1)—

      (a)  It is acknowledged that the first part of rule 25(1) effectively repeats section 8(4) of the 1985 Act, but it is submitted that the duplication is not harmful, and is useful in so far as it contains a full description of what, in the context, the court must do.

      (b)  Yes.

      (c)  No: the intention is that it should be read subject to the court's power to direct otherwise under section 8(6) of the 1985 Act.

The Department replies similarly, mutatis mutandis, in relation to questions (a) and (c) on rule 25(2).

5. Rule 25(1) follows the same wording, in all material respects, as rule 24(1) of the 1986 Rules and rule 26(1) of the 1994 Rules; rule 25(2) follows rule 26(2) of the 1994 Rules. As far as the Department is aware, there has been no confusion as to the meaning of this wording during the 15 years (as regards rule 25(1)) or 6 years (as regards rule 25(2)) for which it has been in force.

2 April 2001

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