Section 6: Section 5 acts: limitations

42.     This sets two limitations to "section 5 acts". Subsections (1) to (4) deal with restraint, which is defined as the use or threat of force where P is resisting and any restriction of liberty of movement, whether or not P resists. This will include actions such as pulling someone away from the road, putting a seat belt on someone in a car or administering sedatives in order to undertake treatment. Restraint is permitted only when the person using it reasonably believes it is necessary to prevent harm to P. The restraint used must be proportionate both to the likelihood of the harm and the seriousness of the harm. It follows that the minimum level of restraint must be used; if the risk of harm diminishes, the restraint used must be reduced. It should be remembered that the principles in section 1 also apply when restraint is proposed. The principle of the "least restrictive option" in section 1(6) is likely to be particularly significant here.

43.     Decisions of the European Court of Human Rights draw a clear distinction between acts which restrict a person's liberty of movement and those which deprive a person of his liberty within the meaning of Article 5 of the ECHR. Subsection (4)(b) refers only to restriction of the person's liberty of movement. Subsection (5) makes clear that for section 6 a deprivation of liberty, within the ECHR meaning, amounts to more than mere restraint. Section 6 will therefore not provide protection for an action that amounts to a deprivation of liberty for the purposes of Article 5.

44.     The second limitation is in subsection (6) which makes it clear that a valid decision by an attorney or a deputy takes priority over any action which might be taken under section 5. However, there is a limitation on the authority of an attorney or deputy. There could be a dispute or difficulty over a decision made by an attorney or deputy. For example, a doctor might be concerned that the attorney is not acting in P's best interests. Subsection (7) makes it clear that action can be taken to sustain life or prevent serious deterioration while any such dispute is referred to the court.

Section 7: Payment for necessary goods and services

45.     This revises and extends the statutory rule in section 3(2) of the Sale of Goods Act 1979 insofar as it applies to people who lack capacity to contract. In general, a contract entered into by a person who lacks capacity to contract is voidable if the other person knew or must be taken to have known of the lack of capacity. This does not apply if "necessaries" are supplied. In those circumstances, the person lacking capacity must still pay a reasonable price. The rule in section 3(2) of the 1979 Act only applies to "necessary" goods, but there is a matching common law rule about "necessary" services. This section combines these rules to set out a single statutory rule to cover "necessary" goods and services. Subsection (2) repeats the established legal definition of what is 'necessary'. Thus, for example, if the milkman carries on delivering milk to the house of someone who has a progressive dementia, he can expect to be paid. If, however, a roofer puts a completely unnecessary new roof on to that person's house, when all that was required was a minor repair, then the rule will operate to prevent the roofer from being able to recover his charges.

Section 8: Expenditure

46.     This is to be read with sections 5 and 7. It allows a person who is acting under section 5 and who arranges something for P's care or treatment that costs money to do certain things. He can promise that P will pay, use money which P has in his possession and pay himself back from P's money in his possession or consider himself owed by P. This restates existing common law rules which provide that a person acting as an "agent of necessity" for another person should not be out of pocket as a result. A carer might, acting in P's best interests, arrange the delivery of disability aids or household items. Nothing in this section allows a carer to gain access to P's funds where they are held by a third party such as a bank or building society. The bank or building society would remain bound by contractual obligations to P until formal steps were taken (for example, registering a relevant power of attorney, or obtaining a court order).

47.     Subsection (3) recognises that some people may have control over P's money or property by other routes, for example under the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) or by way of banking arrangements.

Lasting powers of attorney

Section 9: Lasting powers of attorney

48.     Sections 9 to 14 create a new statutory form of power of attorney, the "lasting power of attorney" (or LPA). This replaces the "enduring power of attorney" (or EPA) provided for by the Enduring Powers of Attorney Act 1985. The 1985 Act is repealed by section 66(1)(b), but the legal effect of an EPA already made under the current law is preserved and integrated into the scheme of the Act by section 66(3) and Schedule 4.

49.     Section 9 sets out the key aspects of an LPA. Unlike an EPA, it can extend to personal welfare matters ((subsection (1)(a)) as well as to property and affairs. By making an LPA, an individual (the donor) confers on another individual or individuals (donee/s) authority to make decisions about the donor's personal welfare and/or property and affairs or specified matters concerning those areas. Power to make decisions includes, by virtue of section 64(2), acting on decisions made where appropriate.

50.     Subsection (1) also makes clear that to be valid an LPA must include authority to make decisions when the donor no longer has capacity to make those decisions himself. An LPA can, in certain circumstances, operate as an 'ordinary' power of attorney when the donor has full mental capacity but it will also continue to operate after the donor has lost capacity.

51.     Subsection (2) deals with the creation of an LPA. The donor must be aged 18 or over and have capacity to execute an LPA. The rules in section 10 about who can be a donee must be complied with. Detailed provisions about the making and registration of the instrument, as set out in Schedule 1, must be complied with. If the rules are not complied with the document created will not be a valid LPA and cannot be lawfully used to make decisions on behalf of the donor (subsection (3)).

52.     Subsection (4) reiterates that any donee must apply the principles set out in section 1 and act in the donor's best interests. A donee's authority is also subject to any conditions or restrictions that the donor may choose to put in the LPA document itself.

Section 10: Appointment of donees

53.     This sets out certain requirements relating to donees and how they should act. A donee must be aged 18 or over. Someone who is bankrupt cannot be appointed as the donee of an LPA relating to property and affairs. If the LPA relates only to property and affairs, the donee can be either an individual or a trust corporation (defined in section 68(1) of the Trustee Act 1925 as the Public Trustee or a corporation appointed by the court in any particular case to be a trustee, or entitled by rules made under section 4(3) of the Public Trustee Act 1906, to act as custodian trustee).

54.     Subsection (4) provides that where two or more people are appointed as donees, they may be appointed either to act jointly (so that they must all join together in any decision) or to act jointly and severally (which means they can act all together or each of them can act independently). The donor may also appoint two or more persons to act jointly in respect of some matters and jointly and severally in respect of others. To the extent that the donor does not specify in the instrument whether donees are to act jointly or jointly and severally, it will be assumed from the instrument that they are appointed to act jointly (subsection (5)).

55.     For joint attorneys, any breach of the relevant rules about how lasting powers of attorney are made will prevent a valid LPA being created (subsection (6)). For "joint and several" attorneys, a breach only affects the attorney who is in breach; a valid LPA is still created in respect of the other donee(s) (subsection (7)).

56.     Subsection (8) allows a donor to provide for the replacement of the donee(s) on the occurrence of a specified event which would normally terminate a donee's powers. The specified events are: the donee renouncing his appointment, the donee's death or insolvency, the dissolution or annulment of a marriage or civil partnership between the donor and the donee or the lack of capacity of the donee. For example, an older donor might wish to appoint his spouse, but nominate a son or daughter as a replacement donee. A donee cannot be given power to choose a successor (subsection (8)(a)) as this would be inconsistent with the core principle that the donor is giving authority to a chosen attorney. A civil partnership is a registered relationship between two people of the same sex which ends only on death, dissolution or annulment, as provided for in the Civil Partnership Act 2004.

Section 11: Lasting powers of attorney: restrictions

57.     Subsections (1) to (4) place restrictions on the use of restraint by attorneys, matching those applying in relation to "section 5 acts" (see section 6) and deputies (see section 20). Restraint can only be used to prevent harm, and must be proportionate. Subsection (6) makes clear that for section 11 a deprivation of liberty within the ECHR meaning amounts to more than mere restraint.

58.     Further restrictions are set out in subsection (7). An attorney cannot act where the donor has capacity, or where the donor has made a qualifying advance decision (see sections 24 to 26). Subsection 7(c) has to be read with subsection (8). Thus, although an attorney may give or refuse consent to the carrying out or continuation of health care, this would not extend to refusing life-sustaining treatment unless the LPA expressly said so, and is subject to any conditions or restrictions in the LPA.

Section 12: Scope of lasting powers of attorney: gifts

59.     This is similar to section 3(5) of the Enduring Powers of Attorney Act 1985 and deals with an attorney's power to make gifts of the donor's property. The attorney can only do something that is in the donor's best interests but this section operates as a specific restriction in relation to gifts. It allows modest gifts proportionate to the donor's assets to people related or connected to the donor (including himself) on "customary occasions", as defined; and to charities (subject to any conditions or restrictions in the LPA itself). The court has power to authorise more substantial gifts (see section 23(4)) if satisfied this would be in the donor's best interests. For example, if an older person has substantial assets then tax planning might be a reason for the making of gifts.

Section 13: Revocation of lasting powers of attorney

60.     This deals with the ways in which LPAs may cease to be effective, whether before or after registration. A donor may revoke an LPA at any time while he has capacity to do so (subsection (2)). Other events will automatically terminate an LPA.

61.     The bankruptcy of either the donor or the attorney will terminate any financial powers granted. Section 64(3) provides that all references to the bankruptcy of an individual include a case where a bankruptcy restrictions order is in force in respect of him. Bankruptcy restrictions orders are provided for in Schedule 4A to the Insolvency Act 1986. Interim bankruptcy restrictions orders do not bring a power of attorney to an end; they just have a suspensive effect (subsections (4) and (9)).

62.     An LPA also comes to an end if the donee disclaims, dies or loses capacity. The dissolution or annulment of a marriage or civil partnership between the donee and the donor will terminate the donee's powers unless the donor has specified that it should not (subsection (11)).

63.     Subsections (7) and (10) provide for situations where there is a replacement or a "joint and several" attorney (in respect of any matter) who can continue to act.

Section 14: Protection of donee and others if no power created or power revoked

64.     This sets out the legal consequences when a registered LPA turns out to be invalid. There is similar provision in relation to EPAs in section 9 of the 1985 Act. Broadly, both attorneys and third parties are given protection from liability if they were unaware that the LPA was invalid or had come to an end.

General powers of the court and appointment of deputies

Section 15: Power to make declarations

65.     This gives the court power to make declarations, if necessary, about whether an individual has capacity, either in relation to a specific decision that needs to be made, or in relation to decisions on such matters as are described in the declaration. It also gives the court power to make declarations about whether an act or proposed act was or would be lawful. The Court of Protection would have this latter power as a superior court of record which, under section 47, has the same powers, rights, privileges and authority as the High Court, but it is considered helpful to spell this out. Subsection (2) confirms that the court can be asked to adjudicate on omissions to act (for example, the withholding or withdrawing of medical treatment) and a course of conduct.

Section 16: Powers to make decisions and appoint deputies: general

66.     This sets out the core jurisdiction of the court, which is to make decisions about personal welfare or property and affairs for persons lacking capacity or to appoint a deputy to do so.

67.     Subsection (3) confirms that the principles in section 1 and the best interests checklist will govern the court's exercise of its powers.

68.     Subsection (4) requires the court to consider two additional principles, further emphasising the "least restrictive intervention" principle mentioned in section 1(6). The first additional principle is that a decision of the court is preferable to the appointment of a deputy and the second is that, if a deputy is appointed, the appointment should be as limited in scope and duration as is reasonably practicable in the circumstances. In welfare (including health care) matters a deputy is never required in order for care or treatment to be given to a person because section 5 provides sufficient scope for carers and professionals to act. Nevertheless, a deputy may be particularly helpful in cases of dispute. For matters concerning property and affairs, a deputy may be needed in order to provide the authority to deal with contractual matters and where there is an on-going need for such decisions to be taken. Subsection (5) enables the court to grant the deputy powers or impose duties on him as it thinks necessary to avoid repeated applications to the court. However, it also enables the court to require the deputy to seek consent before taking certain actions. Subsection (6) gives the court an "own motion" power to make whatever order is in the person's best interests.

69.     The court can always vary or discharge its orders and subsection (8) provides that it has power to take away or alter a deputy's powers if the deputy is overstepping his powers or not adhering to his best interests obligations.

Section 17: Section 16 powers: personal welfare

70.     The powers created by section 16 in relation to making orders and appointing deputies will extend to a wide range of personal welfare issues. Particular mention is made in this section of issues which have arisen in the past and been dealt with by the High Court in the exercise of its inherent jurisdiction and may be most likely to arise in future. This is not an exhaustive, merely an indicative, list. It is not a list of decisions that must always go to court, rather it provides examples of where the court can act if it would be appropriate, and beneficial to the person, for the court to do so. There are restrictions on what may be delegated to a deputy, set out in section 20(2).

Section 18: Section 16 powers: property and affairs

71.     Subsection (1) indicates the extent of the court's powers with regard to property and affairs. Again it provides a non-exhaustive, indicative list of the matters within the powers relating to property and affairs. This largely reproduces the list which applies to the original Court of Protection in section 96 of the Mental Health Act 1983. Again, this is not a list of matters which must always go to the new Court of Protection but rather an indication of the types of order the court might make if an application were made. Where property and financial matters are concerned the effect of the general law relating to contract and property will often be to create a need for formal powers. So if the person concerned has lost capacity to enter into a contract for the sale of his house no purchaser is going to accept a contract or Land Registry transfer document signed by someone who is not the registered owner, unless the proposed purchaser sees a document proving that someone else has formal authority to contract to sell and transfer the property on his behalf. Equally, the person's bank will be bound by the terms of its contract with him not to hand his money over to someone else. If he can no longer give a valid instruction or valid receipt to the bank then his money will have to be held by the bank until formal authority is provided. If a valid power of attorney exists then this would probably remove any need for the Court of Protection to make orders. Again, not all of the powers can be given to deputies (see section 20(3)). These correspond to matters which, under the current law, always have to be dealt with by the court itself.

Section 19: Appointment of deputies

72.     This deals with deputies appointed by the court. The general rule is that a deputy must be at least 18 years of age. If a trust corporation is appointed deputy it can only act in respect of property and affairs. The court may appoint the holder of a specified office as deputy (this is different to LPAs where the attorney must be an individual). Before being appointed deputy, a person must consent to being appointed. The court will be able to appoint more than one deputy to act on behalf of an individual who lacks capacity and these deputies can act jointly, jointly and severally, or jointly for some matters and jointly and severally for other matters. That is, the court can specify that they must all act together, that each can act independently of the other or that they can act either way, depending on the matter in question. When appointing a deputy, the court will also have the power to appoint a successor or successors to the original appointees. The court will specify the circumstances under which this could occur.

73.     Subsection (6) provides that a deputy will be treated as an "agent" of the adult who lacks capacity. The law of agency imposes a range of duties on those who act as agents for someone else. For example, an agent must act with "due care and skill" and is bound by fiduciary duties amongst other duties. Case law has established that receivers appointed by the original Court of Protection under Part 7 of the Mental Health Act 1983 are agents but it is considered helpful to make statutory provision to that effect in relation to deputies.

74.     All deputies will be able to claim reasonable expenses from the estate of the adult lacking capacity and if the court directs, the deputy can be paid for his services from the estate. The court will be able to give a deputy the power to deal with all matters concerning the control and management of any property belonging to the adult lacking capacity, including being able to invest. The court will also be able to require a deputy to give the Public Guardian security against misbehaviour (that is, either a deposit of money or a guarantee bond) and to direct the deputy to file with the Public Guardian reports and accounts as it sees fit. These provisions are broadly in line with arrangements in the original Court of Protection (Mental Health Act 1983, Part 7).

Section 20: Restrictions on deputies

75.     This sets a number of limitations on the powers of deputies. Subsection (1) specifies that a deputy cannot act where the person concerned is able to act for himself. In some cases the person may have fluctuating capacity, for example as a result of mental health problems, and it is not acceptable for a deputy to carry on making substitute decisions when the person concerned has in fact recovered. Subsection (6) reiterates that a deputy must act in accordance with section 1 (principles) and section 4 (best interests).

76.     Subsections (2) and (3) relate back to sections 16 to 17 and list certain matters which must always be dealt with by the court, not a deputy. The powers to prohibit a person from having contact with an adult lacking capacity or to direct a person responsible for his health care to allow a different person to take over are, of course, powers which have to be exercised by the court itself. As under the current law, deputies will also be restricted from making certain financial decisions in connection with wills and trusts.

77.     Subsection (4) makes it clear that a deputy cannot be given power to "trump" an attorney (who will have been chosen by the donor himself, at a time when he had capacity). If there is a concern or a dispute about the way an attorney is behaving the court must use its powers in sections 22 and 23, rather than seeking to appoint a deputy. Subsection (5) restricts deputies from refusing consent to the carrying out or continuation of treatment that is necessary to sustain life. Subsection (6) clarifies that the principles in section 1 and the considerations as to best interests as set out in section 4 apply to deputies.

78.     Subsections (7) to (11) impose limitations on deputies in relation to restraint, matching those imposed in relation to "section 5 acts" by section 6 and on attorneys by section 11. A deputy will have to be acting within the scope of an authority expressly conferred on him by the court. Restraint can only be used to prevent harm and must be proportionate. Subsection (13) makes clear that for section 20 a deprivation of liberty within the ECHR meaning amounts to more than mere restraint.

Section 21: Transfer of proceedings relating to people under 18

79.     The Act deals with people aged 16 and over (and with the property of younger children - see section 18(3)), while the Children Act 1989 deals with people under the age of 18. There will be some overlap between the jurisdictions and the Lord Chancellor is therefore given power by this section to make transfer of proceedings orders. It is intended that the order will indicate that a case should be transferred to the court most suitable to deal with the issues. One factor is likely to be the prospect of a person under 18 who is the subject of a dispute still lacking capacity when an adult. For example, if the parents of a 17-year old with profound learning difficulties are in dispute about residence or contact then it may be more appropriate for the Court of Protection to deal with the case, since an order made under the Children Act 1989 would expire on the child's 18^th birthday at the latest.

Powers of the court in relation to lasting powers of attorney

Section 22: Powers of court in relation to validity of lasting powers of attorney

80.     This section and section 23 set out what the Court of Protection can do in relation to LPAs. The powers are similar to those in section 8 of the Enduring Powers of Attorney Act 1985, except that administrative functions connected with registration will be performed by the Public Guardian.

81.     The court can determine questions about validity and revocation (subsection (2)). It can direct that an instrument should not be registered or (if it is unregistered) revoke it on the grounds set out in subsection (3) (fraud or undue pressure, or misbehaviour by the attorney).

82.     Subsection (5) provides that where there is more than one donee the court may revoke the instrument or the LPA so far as it relates to any of them.

Section 23: Powers of court in relation to operation of lasting powers of attorney

83.     This allows the court to decide questions about the meaning or effect of an LPA (or an instrument purporting to create an LPA) and to give directions to attorneys where the donor lacks capacity. The court may also give the attorney directions about producing reports, accounts, records and information and about his remuneration and expenses. The court has power to relieve a donee from some or all of the liabilities arising from a breach of duty (cf Enduring Powers of Attorney Act 1985, section 8(2)(f)). It may also authorise gifts beyond the scope of what is permitted by section 12(2) (for example, for tax planning purposes).

Advance decisions to refuse treatment

Section 24: Advance decisions to refuse treatment: general

84.     Sections 24 to 26 deal with advance decisions to refuse treatment. Some people already choose to make such decisions and their legal effect has been analysed in a number of judicial decisions. It has been confirmed by the High Court that a competent adult patient's anticipatory refusal of consent remains binding and effective notwithstanding that he has subsequently become incompetent (HE v NHS Trust A and AE [2003] EWHC 1017 (Fam), a case concerning a refusal of blood transfusion). Broadly, the sections seek to codify and clarify the current common law rules, integrating them into the broader scheme of the Act. There would otherwise be a lacuna in the scheme of the Act and the powers of the new court. Many general forms of advance statement or "living will" will be important and relevant as "past wishes" of the person for the purposes of the best interests checklist in section 4. An "advance decision" as defined in these sections is a special type of advance statement that represents an actual decision to refuse treatment, albeit at an earlier date. As now, it will therefore be decisive in certain circumstances.

85.     The key characteristics of an "advance decision" for the purposes of the Act are set out in subsection (1) of this section. It must be made by a person who is 18 or over and at a time when the person has capacity to make it. A qualifying advance decision must specify the treatment that is being refused, although this can be in lay terms (for example using "tummy" instead of stomach). It may specify particular circumstances, again in lay terms, in which the refusal will apply. A person can change or completely withdraw the advance decision if he has capacity to do so (subsection (3)). Subsection (4) confirms that the withdrawal, including a partial withdrawal, of an advance decision does not need to be in writing and can be by any means. Subsection (5) confirms that an alteration of an advance decision does not need to be in writing, unless it applies to an advance decision refusing life-sustaining treatment, in which case formalities will need to be satisfied in order for it to apply.