Joint Committee on Statutory Instruments Sixteenth Report

Second Memorandum from the Lord Chancellor's Department

The 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 25 April 201 on the point set out below.

The Department's memorandum of 2 April confirms that the second part of rule 25(1) as to the delivery of an instrument also applies in a case where the registration of an enduring power of attorney has been cancelled under section 8(4)(c) of the 1985 Act on the ground that the donor is and is likely to remain mentally capable. Given that the effect of the cancellation of the registration in that case is that the enduring power of attorney would revert to being an unregistered enduring power, and accordingly the court would not make the power as cancelled (rule 25(4)), explain—

    (i)  what steps the court must take upon receiving the power;
    (ii)  whether it must return the instrument to the attorney;
    (iii)  why no provision is made relating to these matters (compare rule 12 which makes detailed provision in relation to registration).

2. When the court receives a power whose registration has been cancelled under section 8(4)(c) of the 1985 Act, the court will endorse on the power the fact that registration has been cancelled, and the date of the cancellation. The court's practice, as regards the original power, is to return it to the donor if the donor so requests: in this situation it is common for the donor to wish to revoke the power.

3. The Department does not know why the Court of Protection (Enduring Powers of Attorney). Rules 1986 (S.I. 1986/127), whose provisions are repeated in the Rules (and, before them, in the Court of Protection (Enduring Powers of Attorney) Rules 1994 (S.I. 1994/3047)) did not make express provision for this situation, but takes the view that, especially in the sensitive circumstances surrounding a successful application for cancellation of registration under section 8(4)(c), a degree of flexibility is desirable on the court's part. As far as the Department is aware, the absence over the past 15 years, of express provision has not caused any difficulties to donors or to attorneys.

30 April 2001

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