Assisted Decision-Making (Capacity) Act 2015

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Application for registration of instrument creating enduring power

68. (1) Where an attorney has reason to believe that the donor lacks capacity in relation to one or more relevant decisions which are the subject of the enduring power of attorney, the attorney shall, as soon as is practicable, make an application, in compliance with this Part and regulations made under section 79 , to the Director to register the instrument creating the enduring power of attorney.

(2) An application to register an instrument under subsection (1) shall be made in such form and accompanied by such fee as shall be prescribed.

(3) The attorney shall, at the same time as he or she makes an application under subsection (1), give notice, in such form as shall be prescribed, of the application and give a copy of the instrument creating an enduring power of attorney to the following persons:

(a) the donor;

(b) a spouse or civil partner (if any) of the donor;

(c) the cohabitant (if any) of the donor;

(d) any children of the donor who have attained the age of 18 years;

(e) any decision-making assistant for the donor;

(f) any co-decision-maker for the donor;

(g) any decision-making representative for the donor;

(h) any designated healthcare representative for the donor;

(i) any other attorney for the donor or attorney under the Act of 1996 in respect of the donor;

(j) any other person specified by the donor under section 61 .

(4) An attorney may, before making an application to register an instrument creating an enduring power of attorney, apply to the court for a determination on any question as to the validity of the power.

(5) Where an attorney has made an application to register an instrument creating an enduring power of attorney, then pending determination of the application, the attorney, or if more than one attorney has been appointed to act jointly or jointly and severally, as the case may be, any one of them, may take action under the power—

(a) to maintain the donor or prevent loss to the donor’s assets,

(b) to the extent permitted by the enduring power, to make a relevant decision which cannot reasonably be deferred until the application has been determined, or

(c) to maintain the attorney or other persons in so far as that is permitted under the power.

(6) Following the taking of an action pursuant to subsection (5), an attorney shall report to the Director—

(a) what action he or she took,

(b) the reasons as to why the action could not be deferred until after the registration of the instrument creating the enduring power of attorney,

(c) any measures he or she took to encourage the donor to participate in the action taken, and

(d) the outcome of the action.

(7) An application to register an instrument creating an enduring power of attorney shall be accompanied by—

(a) the instrument creating the enduring power of attorney,

(b) a statement by a registered medical practitioner and a statement by such other healthcare professional of a class as shall be prescribed that in their opinion the donor lacks capacity in relation to one or more relevant decisions which are the subject of the enduring power,

(c) details of any existing decision-making assistance agreement, co-decision-making agreement, decision-making order, decision-making representation order, power of attorney (whether an enduring power or otherwise and whether registered or not) or advance healthcare directive in respect of the appointer,

(d) a copy of any notice given pursuant to subsection (3),

(e) a copy of any notice given pursuant to section 61 , and

(f) the prescribed fee.

(8) Where there is more than one attorney appointed under an enduring power of attorney, any two or more of the attorneys may make a joint application to register the instrument.