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At the Court at Balmoral, the 15th day of September
1987
Present,
The Queen's Most Excellent Majesty in Council
Whereas a draft of this Order has been approved by a resolution of
each House of Parliament:
Now, therefore, Her Majesty, in exercise of the powers conferred by
paragraph 1 of Schedule 1 to the Northern Ireland Act1974
c. 28 1974 and of all other powers enabling Her in that
behalf, is pleased, by and with the advice of Her Privy Council, to
order, and it is hereby ordered, as follows:—
Introductory
Title and
commencement
1.—(1) This
Order may be cited as the Enduring Powers of Attorney (Northern Ireland)
Order 1987.
(2) This Order
shall come into operation on such day as the Head of the Department of
Finance and Personnel may by order appoint.
Interpretation
2.—(1) The
Interpretation Act (Northern Ireland)1954 c. 33 (N.I.)
1954 shall apply to Article 1 and the following provisions of this
Order as it applies to a Measure of the Northern Ireland
Assembly.
(2) In this
Order—
"the court" means the High Court;
"enduring power" is to be construed in accordance with Article
4;
"mentally incapable" or "mental incapacity", except where it
refers to revocation at common law, means, in relation to any person ,
that he is incapable by reason of mental disorder of managing and
administering his property and affairs and "mentally capable" and
"mental capacity" shall be construed accordingly;
"mental disorder" has the same meaning as it has in the Mental
Health (Northern Ireland) Order1986 NI 4 1986;
"notice" means notice in writing;
"trust corporation" has the meaning given in Article 9(4) of the
Administration of Estates (Northern Ireland) Order1979 NI 14
1979.
(3) Any question
arising under or for the purposes of this Order as to what the donor of
the power might at any time be expected to do shall be determined by
assuming that he had full mental capacity at the time but otherwise by
reference to the circumstances existing at that time.
Enduring powers of attorney
Enduring power of attorney to survive mental incapacity of
donor
3.—(1) Where an
individual creates a power of attorney which is an enduring power within
the meaning of this Order then—
(a) the power shall not be revoked by any subsequent
mental incapacity of his; but
(b) upon such incapacity supervening the donee of the
power may not do anything under the authority of the power except as
provided by paragraph (2) or as directed or authorised by the court
under Article 7 unless or, as the case may be, until the instrument
creating the power is registered by the court under Article 8; and
(c) section 4 of the Powers of Attorney Act (Northern
Ireland)1971 c. 33 (N.I.) 1971 (protection of
donee and third persons) so far as applicable shall apply if and so
long as sub-paragraph (b) operates to suspend the donee's authority to
act under the power as if the power had been revoked by the donor's
mental
incapacity.
(2) Notwithstanding
paragraph (1)(b), where the attorney has made an application for
registration of the instrument then, until the application has been
initially determined, the attorney may take action under the power—
(a) to maintain the donor or prevent loss to his
estate; or
(b) to maintain himself or other persons in so far as
Article 5(4) permits him to do
so.
(3) Where the attorney
purports to act as provided by paragraph (2) then, in favour of a person
who deals with him without knowledge that the attorney is acting
otherwise than in accordance with sub-paragraph (a) or (b) of that
paragraph, the transaction between them shall be as valid as if the
attorney were acting in accordance with sub-paragraph (a) or
(b).
Characteristics of an enduring
power
4.—(1) Subject to
paragraphs (6) to (8) and Article 13, a power of attorney is an enduring
power within the meaning of this Order if the instrument which creates
the power—
(a) is in the prescribed form; and
(b) was executed in the prescribed manner by the donor
and the attorney; and
(c) incorporated at the time of execution by the donor
the prescribed explanatory
information.
(2) The
Department of Finance and Personnel shall make regulations as to the
form and execution of instruments creating enduring powers and the
regulations shall contain such provisions as appear to that Department
to be appropriate for securing—
(a) that no document is used to create an enduring
power which does not incorporate such information explaining the
general effect of creating or accepting the power as may be
prescribed; and
(b) that such instruments include statements to the
following effect—
(i) by the donor, that he intends the power to
continue in spite of any supervening mental incapacity of his;
(ii) by the donor, that he read or had read to him
the information explaining the effect of creating the power;
(iii) by the attorney, that he understands the duty
of registration imposed by this
Order.
(3) Without
prejudice to the generality of section 17(3) to (5) of the
Interpretation Act (Northern Ireland)1954 c. 33 (N.I.)
1954, regulations under paragraph (2)—
(a) may include different provision for cases where
more than one attorney is to be appointed by the instrument than for
cases where only one attorney is to be appointed; and
(b) may, if they amend or revoke any regulations
previously made under that paragraph, include saving and transitional
provisions.
(4) Regulations
made under paragraph (2) shall be subject to negative
resolution.
(5) An instrument
in the prescribed form purporting to have been executed in the
prescribed manner shall be taken, in the absence of evidence to the
contrary, to be a document which incorporated at the time of execution
by the donor the prescribed explanatory
information.
(6) A power of
attorney cannot be an enduring power unless, when he executes the
instrument creating it, the attorney is—
(a) an individual who has attained eighteen years and
is not bankrupt; or
(7) A power of
attorney under section 26 of the Trustee Act (Northern
Ireland)1958 c. 23 (N.I.) 1958 (power to delegate
trusts etc. by power of attorney) cannot be an enduring
power.
(8) A power of attorney
which gives the attorney a right to appoint a substitute or successor
cannot be an enduring
power.
(9) An enduring power
shall be revoked by the bankruptcy of the attorney whatever the
circumstances of the
bankruptcy.
(10) An enduring
power shall be revoked on the exercise by the court of any of its powers
under part VIII of the Mental Health (Northern Ireland) Order1986 NI
4 1986 if, but only if, the court so
directs.
(11) No disclaimer of
an enduring power, whether by deed or otherwise, shall be valid unless
and until the attorney gives notice of it to the donor or, where Article
6(6) or 9(1) applies, to the
court.
(12) In this Article
"prescribed" means prescribed under paragraph (2).
Scope of authority etc. of attorney under enduring
power
5.—(1) An
enduring power may confer general authority (as defined in paragraph
(2)) on the attorney to act on the donor's behalf in relation to all or
a specified part of the property and affairs of the donor or may confer
on him authority to do specified things on the donor's behalf and the
authority may, in either case, be conferred subject to conditions and
restrictions.
(2) Where an
instrument is expressed to confer general authority on the attorney it
operates to confer, subject to the restriction imposed by paragraph (5)
and to any conditions or restrictions contained in the instrument,
authority to do on behalf of the donor anything which the donor can
lawfully do by an
attorney.
(3) Subject to any
conditions or restrictions contained in the instrument, an attorney
under an enduring power, whether general or limited, may excuse or
exercise any of the powers or discretions vested in the donor as a
tenant for life within the meaning of the Settled Land Act1882
c. 38
1882.
(4) Subject to any
conditions or restrictions contained in the instrument, an attorney
under an enduring power, whether general or limited, may (without
obtaining any consent) act under the power so as to benefit himself or
other persons than the donor to the following extent but no further,
that is to say—
(a) he may so act in relation to himself or in relation
to any other person if the donor might be expected to provide for his
or that person's needs respectively; and
(b) he may do whatever the donor might be expected to
do to meet those
needs.
(5) Without prejudice
to paragraph (4) but subject to any conditions or restrictions contained
in the instrument, an attorney under an enduring power, whether general
or limited, may (without obtaining any consent) dispose of the property
of the donor by way of gift to the following extent but no further, that
is to say—
(a) he may make gifts of a seasonal nature or at a
time, or on an anniversary, of a birth or marriage, to persons
(including himself) who are related to or connected with the donor,
and
(b) he may make gifts to any charity to whom the donor
made or might be expected to make gifts, provided that the value of
each such gift is not unreasonable having regard to all the
circumstances and in particular the size of the donor's
estate.
Action on actual or impending incapacity of donor
Duties of attorney in event of actual or impending incapacity of
donor
6.—(1) If the
attorney under an enduring power has reason to believe that the donor is
or is becoming mentally incapable paragraphs (2) to (6) shall
apply.
(2) The attorney shall,
as soon as practicable, make an application to the court for the
registration of the instrument creating the
power.
(3) Before making an
application for registration the attorney shall comply with the
provisions as to notice set out in Schedule
1.
(4) An application for
registration shall be made in the prescribed form and shall contain such
statements as may be
prescribed.
(5) The attorney
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 he shall comply with any direction given
to him by the court on that
determination.
(6) No
disclaimer of the power shall be valid unless and until the attorney
gives notice of it to the
court.
(7) Any person who, in
an application for registration, makes a statement which he knows to be
false in a material particular shall be liable—
(a) on conviction on indictment, to imprisonment for a
term not exceeding two years or to a fine, or both; and
(b) on summary conviction, to imprisonment for a term
not exceeding six months or to a fine not exceeding the statutory
maximum, or both.
(8) In this
Article and Schedule 1 "prescribed" means prescribed by rules of
court.
Functions of court prior to
registration
7. Where
the court has reason to believe that the donor of an enduring power may
be, or may be becoming, mentally incapable and the court is of the
opinion that it is necessary, before the instrument creating the power
is registered, to exercise any power with respect to the power of
attorney or the attorney appointed to act under it which would become
exercisable under Article 10(2) on its registration, the court may
exercise that power under this Article and may do so whether the
attorney has or has not made an application to the court for the
registration of the instrument.
Functions of court on application for
registration
8.—(1) In
any case where—
(a) an application for registration is made in
accordance with Article 6(3) and (4), and
(b) neither paragraph (2) nor paragraph (4) applies,
the court shall register the instrument to which the application
relates.
(2) Where it appears
to the court that there is in force under part VIII of the Mental Health
(Northern Ireland) Order1986 NI 4 1986 an order appointing a
controller for the donor but the power has not also been revoked then,
unless it directs otherwise, the court shall not exercise or further
exercise its functions under this Article but shall refuse the
application for
registration.
(3) Where it
appears from an application for registration that notice of it has not
been given under Schedule 1 to some person entitled to receive it (other
than a person in respect of whom the attorney has been dispensed or is
otherwise exempt from the requirement to give notice) the court shall
direct that the application be treated for the purposes of this Order as
having been made in accordance with Article 6(3), if the court is
satisfied that, as regards each such person—
(a) it was undesirable or impracticable for the
attorney to give him notice; or
(b) no useful purpose is likely to be served by giving
him notice.
(4) If, in the
case of an application for registration—
(a) a valid notice of objection to the registration is
received by the court before the expiry of the period of five weeks
beginning with the date or, as the case may be, the latest date on
which the attorney gave notice to any person under Schedule 1, or
(b) it appears from the application that there is no
one to whom notice has been given under paragraph 1 of that Schedule,
or
(c) the court has reason to believe that appropriate
inquiries might bring to light evidence on which the court could be
satisfied that one of the grounds of objection set out in paragraph
(5) was established, the court shall neither register the instrument
nor refuse the application until it has made or caused to be made such
inquiries (if any) as it thinks appropriate in the circumstances of
the case.
(5) For the
purposes of this Order a notice of objection to the registration of an
instrument is valid if the objection is made on one or more of the
following grounds, namely—
(a) that the power purported to have been created by
the instrument was not valid as an enduring power of attorney;
(b) that the power created by the instrument no longer
subsists;
(c) that the application is premature because the donor
is not yet becoming mentally incapable;
(d) that fraud or undue pressure was used to induce the
donor to create the power;
(e) that, having regard to all the circumstances and in
particular the attorney's relationship to or connection with the
donor, the attorney is unsuitable to be the donor's
attorney.
(6) If, in a case
where paragraph (4) applies, any of the grounds of objection in
paragraph (5) is established to the satisfaction of the court, the court
shall refuse the application but if, in such a case, it is not so
satisfied, the court shall register the instrument to which the
application relates.
(7) Where
the court refuses an application for registration on ground (d) or (e)
in paragraph (5) it shall by order revoke the power created by the
instrument.
(8) Where the
court refuses an application for registration on any ground other than
that specified in paragraph (5)(c) the instrument shall be delivered up
to be cancelled, unless the court otherwise directs.
Legal position after registration
Effect and proof of registration,
etc.
9.—(1) The effect
of the registration of an instrument under Article 8 is that—
(a) no revocation of the power by the donor shall be
valid unless and until the court confirms the revocation under Article
10(3);
(b) no disclaimer of the power shall be valid unless
and until the attorney gives notice of it to the court;
(c) the donor may not extend or restrict the scope of
the authority conferred by the instrument and no instruction or
consent given by him after registration shall, in the case of a
consent, confer any right and, in the case of an instruction, impose
or confer any obligation or right on or create any liability of the
attorney or other persons having notice of the instruction or
consent.
(2) Paragraph (1)
applies for so long as the instrument is registered under Article 8
whether or not the donor is for the time being mentally
incapable.
(3) A document
purporting to be an office copy of an instrument registered under this
Order or under the Enduring Powers of Attorney Act1985
c. 29 1985 shall be evidence of the contents of the
instrument and of the fact that it has been so
registered.
(4) Paragraph (3)
is without prejudice to section 3 of the Powers of Attorney
Act1971 c. 27 1971 (proof of certified copies) and
to any other method of proof authorised by law.
Functions of court with respect to registered
power
10.—(1) Where an
instrument has been registered under Article 8, the court shall have the
following functions with respect to the power and the donor of and the
attorney appointed to act under the
power.
(2) The court may—
(a) determine any question as to the meaning or effect
of the instrument;
(b) give directions with respect to—
(i) the management or disposal by the attorney of the
property and affairs of the donor;
(ii) the rendering of accounts by the attorney and
the production of the records kept by him for the purpose;
(iii) the remuneration or expenses of the attorney,
whether or not in default of or in accordance with any provision
made by the instrument, including directions for the repayment of
excessive or the payment of additional remuneration;
(c) require the attorney to furnish information or
produce documents or things in his possession as attorney;
(d) give any consent or authorisation to act which the
attorney would have to obtain from a mentally capable donor;
(e) authorise the attorney to act so as to benefit
himself or other persons than the donor otherwise than in accordance
with Article 5(4) and (5) (but subject to any conditions or
restrictions contained in the instrument);
(f) relieve the attorney wholly or partly from any
liability which he has or may have incurred on account of a breach of
his duties as
attorney.
(3) On application
made for the purpose by or on behalf of the donor, the court shall
confirm the revocation of the power if satisfied that the donor has done
whatever is necessary in law to effect an express revocation of the
power and was mentally capable of revoking a power of attorney when he
did so (whether or not he is so when the court considers the
application).
(4) The court
shall cancel the registration of an instrument registered under Article
8 in any of the following circumstances, that is to say—
(a) on confirming the revocation of the power under
paragraph (3) or receiving notice of disclaimer under Article
9(1)(b);
(b) on giving a direction revoking the power on
exercising any of its powers under part VIII of the Mental Health
(Northern Ireland) Order1986 NI 4 1986;
(c) on being satisfied that the donor is and is likely
to remain mentally capable;
(d) on being satisfied that the power has expired or
has been revoked by the death or bankruptcy of the donor or the death,
mental incapacity or bankruptcy of the attorney or, if the attorney is
a body corporate, its winding up or dissolution;
(e) on being satisfied that the power was not a valid
and subsisting enduring power when registration was effected;
(f) on being satisfied that fraud or undue pressure was
used to induce the donor to create the power; or
(g) on being satisfied that, having regard to all the
circumstances and in particular the attorney's relationship to or
connection with the donor, the attorney is unsuitable to be the
donor's attorney.
(5) Where
the court cancels the registration of an instrument on being satisfied
of the matters specified in sub-paragraph (f) or (g) of paragraph (4) it
shall by order revoke the power created by the
instrument.
(6) On the
cancellation of the registration of an instrument under paragraph (4)
except sub-paragraph (c) the instrument shall be delivered up to be
cancelled, unless the court otherwise directs.
Protection of attorney and third parties
Protection of attorney and third persons where power invalid or
revoked
11.—(1) Paragraphs
(2) and (3) apply where an instrument which did not create a valid power
of attorney has been registered under Article 8 (whether or not the
registration has been cancelled at the time of the act or transaction in
question).
(2) An attorney who
acts in pursuance of the power shall not incur any liability (either to
the donor or to any other person) by reason of the non-existence of the
power unless at the time of acting he knows—
(a) that the instrument did not create a valid enduring
power; or
(b) that an event has occurred which, if the instrument
had created a valid enduring power, would have had the effect of
revoking the power; or
(c) that, if the instrument had created a valid
enduring power, the power would have expired before that
time.
(3) Any transaction
between the attorney and another person shall, in favour of that person,
be as valid as if the power had then been in existence, unless at the
time of the transaction that person has knowledge of any of the matters
mentioned in paragraph
(2).
(4) Where the interest of
a purchaser depends on whether a transaction between the attorney and
another person was valid by virtue of paragraph (3), it shall be
conclusively presumed in favour of the purchaser that the transaction
was valid if—
(a) the transaction between that person and the
attorney was completed within twelve months of the date on which the
instrument was registered; or
(b) that person makes a statutory declaration, before
or within three months after the completion of the purchase, that he
had no reason at the time of the transaction to doubt that the
attorney had authority to dispose of the property which was the
subject of the
transaction.
(5) For the
purposes of section 4 of the Powers of Attorney Act (Northern
Ireland)1971 c. 33 (N.I.) 1971 (protection of
attorney and third persons where action is taken under the power of
attorney in ignorance of its having been revoked) in its application to
an enduring power the revocation of which by the donor is by virtue of
Article 9(1)(a) invalid unless and until confirmed by the court under
Article 10(3), knowledge of the confirmation of the revocation is, but
knowledge of the unconfirmed revocation is not, knowledge of the
revocation of the
power.
(6) Schedule 2 shall
have effect to confer protection in cases where the instrument failed to
create a valid enduring power and the power has been revoked by the
donor's mental
incapacity.
(7) In this
Article "purchaser" has the meaning specified in section 4(6) of the
Powers of Attorney Act (Northern Ireland)1971 c. 33
(N.I.) 1971.
Supplementary
Application of Mental Health Order
provisions
12.—(1) The
provisions of part VIII of the Mental Health (Northern Ireland)
Order1986 NI 4 1986 specified below shall apply to persons
within and proceedings under this Order in accordance with the following
sub-paragraphs and paragraph (2), that is to say—
(a) Article 105 (functions of Visitors) shall apply to
persons within this Order as it applies to the persons mentioned in
that Article;
(b) Article 106, (rules of court) except head (h),
shall apply to proceedings under this Order and persons within this
Order as it applies to the proceedings and persons mentioned in that
Article.
(2) Any functions
conferred or imposed by the provisions of the said part VIII applied by
paragraph (1) shall be exercisable also for the purposes of this Order
and the persons who are "within this Order" are the donors of and
attorneys under enduring powers of attorney whether or not they would be
patients for the purposes of the said part VIII.
Application to joint and joint and several
attorneys
13.—(1) An
instrument which appoints more than one person to be an attorney cannot
create an enduring power unless the attorneys are appointed to act
jointly or jointly and
severally.
(2) This Order, in
its application to joint attorneys, applies to them collectively as it
applies to a single attorney but subject to the modifications specified
in part I of Schedule
3.
(3) This Order, in its
application to joint and several attorneys, applies with the
modifications specified in paragraphs (4) to (7) and in part II of
Schedule 3.
(4) A failure, as
respects any one attorney, to comply with the requirements for the
creation of enduring powers, shall prevent the instrument from creating
such a power in his case without however affecting its efficacy for that
purpose as respects the other or others or its efficacy in his case for
the purpose of creating a power of attorney which is not an enduring
power.
(5) Where one or more
but not both or all the attorneys makes or joins in making an
application for registration of the instrument then—
(a) an attorney who is not an applicant as well as one
who is may act pending the initial determination of the application as
provided in Article 3(2) (or under Article 7);
(b) notice of the application shall also be given under
Schedule 1 to the other attorney or attorneys; and
(c) objection may validly be taken to the registration
on a ground relating to an attorney or to the power of an attorney who
is not an applicant as well as to one or the power of one who is an
applicant.
(6) The court
shall not refuse under Article 8(6) to register an instrument because a
ground of objection to an attorney or power is established if an
enduring power subsists as respects some attorney who is not affected
thereby but shall give effect to it by the prescribed qualification of
the registration.
(7) The
court shall not cancel the registration of an instrument under Article
10(4) for any of the causes vitiating registration specified in that
paragraph if an enduring power subsists as respects some attorney who is
not affected thereby but shall give effect to it by the prescribed
qualification of the
registration.
(8) In this
Article—
"prescribed" means prescribed by rules of court; and
"the requirements for the creation of enduring powers" means the
provisions of Article 4 other than paragraphs (9) to (11) and of
regulations under paragraph (2) of that Article.
Power to modify pre-registration requirements in certain
cases
14.—(1) The
Department of Finance and Personnel may by order exempt attorneys of
such descriptions as it thinks fit from the requirements of this Order
to give notice to relatives prior to
registration.
(2) Subject to
paragraph (3), where an order is made under this Article with respect to
attorneys of a specified description then, during the currency of the
order, this Order shall have effect in relation to any attorney of that
description with the omission of so much of Article 6(3) and Schedule 1
as requires notice of an application for registration to be given to
relatives.
(3) Notwithstanding
that an attorney under a joint or joint and several power is of a
description specified in a current order under this Article, paragraph
(2) shall not apply in relation to him if any of the other attorneys
under the power is not of a description specified in that or another
current order under this
Article.
(4) An order made
under this Article shall be subject to negative resolution.
G. I. de Deney
Clerk of the Privy
Council
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SCHEDULES
1Article 6(3).
NOTIFICATION PRIOR TO REGISTRATION
PART I
DUTY TO GIVE NOTICE TO RELATIVES AND DONOR
Duty to give notice to relatives
1. Subject to
paragraph 3, before making an application for registration the attorney
shall give notice of his intention to do so to all those persons (if
any) who are entitled to receive notice by virtue of paragraph 2.
2.—(1) Subject to the
limitations contained in sub-paragraphs (2) to (4), persons of the
following classes (referred to in this Order as "relatives") are
entitled to receive notice under paragraph 1—
(a) the donor's husband or wife;
(b) the donor's children;
(d) the donor's brothers and sisters, whether of the
whole or half blood;
(e) the widow or widower of a child of the donor;
(f) the donor's grandchildren;
(g) the children of the donor's brothers and sisters of
the whole blood;
(h) the children of the donor's brothers and sisters of
the half blood;
(i) the donor's uncles and aunts of the whole blood;
and
(j) the children of the donor's uncles and aunts of the
whole blood.
(2) A person is
not entitled to receive notice under paragraph 1 if—
(a) his name or address is not known to the attorney
and cannot be reasonably ascertained by him; or
(b) the attorney has reason to believe that he has not
attained eighteen years or is mentally
incapable.
(3) Except where
sub-paragraph (4) applies, no more than three persons are entitled to
receive notice under paragraph 1 and, in determining the persons who are
so entitled, persons falling within class (a) of sub-paragraph (1) are
to be preferred to persons falling within class (b) of that
sub-paragraph, persons falling within class (b) are to be preferred to
persons falling within class (c) of that sub-paragraph; and so
on.
(4) Notwithstanding the
limit of three specified in sub-paragraph (3), where—
(a) there is more than one person falling within any of
classes (a) to (j) of sub-paragraph (1), and
(b) at least one of those persons would be entitled to
receive notice under paragraph 1, then, subject to sub-paragraph (2),
all the persons falling within that class are entitled to receive
notice under paragraph 1.
3.—(1) An attorney shall
not be required to give notice under paragraph 1 to himself or to any
other attorney under the power who is joining in making the application,
notwithstanding that he or, as the case may be, the other attorney is
entitled to receive notice by virtue of paragraph
2.
(2) In the case of any
person who is entitled to receive notice under paragraph 1, the
attorney, before applying for registration, may make an application to
the court to be dispensed from the requirement to give him notice; and
the court shall grant the application if it is satisfied—
(a) that it would be undesirable or impracticable for
the attorney to give him notice; or
(b) that no useful purpose is likely to be served by
giving him notice.
Duty to give notice to donor
4.—(1) Subject to
sub-paragraph (2), before making an application for registration the
attorney shall give notice of his intention to do so to the
donor.
(2) Paragraph 3(2)
shall apply in relation to the donor as it applies in relation to a
person who is entitled to receive notice under paragraph 1.
PART II
CONTENTS OF NOTICES
5. A notice to
relatives under this Schedule—
(a) shall be in the prescribed form;
(b) shall state that the attorney proposes to make an
application to the court for the registration of the instrument
creating the enduring power in question;
(c) shall inform the person to whom it is given that he
may object to the proposed registration by notice in writing to the
court before the expiry of the period of four weeks beginning with the
day on which the notice under this Schedule was given to him;
(d) shall specify, as the grounds on which an objection
to registration may be made, the grounds set out in Article
8(5).
6. A notice to
the donor under this Schedule—
(a) shall be in the prescribed form;
(b) shall contain the statement mentioned in paragraph
5(b); and
(c) shall inform the donor that, whilst the instrument
remains registered, any revocation of the power by him will be
ineffective unless and until the revocation is confirmed by the court.
<14>
PART III
DUTY TO GIVE NOTICE TO OTHER ATTORNEYS
7.—(1) Subject to
sub-paragraph (2), before making an application for registration an
attorney under a joint and several power shall give notice of his
intention to do so to any other attorney under the power who is not
joining in making the application; and paragraphs 3(2) and 5 shall apply
in relation to attorneys entitled to receive notice by virtue of this
paragraph as they apply in relation to persons entitled to receive
notice by virtue of paragraph
2.
(2) An attorney is not
entitled to receive notice by virtue of this paragraph if—
(a) his address is not known to the applying attorney
and cannot reasonably be ascertained by him; or
(b) the applying attorney has reason to believe that he
has not attained eighteen years or is mentally incapable.
<14>
PART IV
SUPPLEMENTARY
8.—(1) For the purposes of
this Schedule an illegitimate child shall be treated as if he were the
legitimate child of his mother and
father.
(2) Notwithstanding
anything in section 24(1) of the Interpretation Act (Northern
Ireland)1954 c. 33 (N.I.) 1954 (construction of
references to service by post), for the purposes of this Schedule a
notice given by post shall be regarded as given on the date on which it
was posted.
2Article 11(6).
FURTHER PROTECTION OF ATTORNEY AND THIRD PERSONS
1. Where—
(a) an instrument framed in a form prescribed under
Article 4(2) creates a power which is not a valid enduring power;
and
(b) the power is revoked by the mental incapacity of
the donor, paragraphs 2 and 3 shall apply, whether or not the
instrument has been registered.
2. An attorney
who acts in pursuance of the power shall not, by reason of the
revocation, incur any liability (either to the donor or to any other
person) unless at the time of acting he knows—
(a) that the instrument did not create a valid enduring
power; and
(b) that the donor has become mentally incapable.
3. Any
transaction between the attorney and another person shall, in favour of
that person, be as valid as if the power had then been in existence,
unless at the time of the transaction that person knows—
(a) that the instrument did not create a valid enduring
power; and
(b) that the donor has become mentally incapable.
4. Article
11(4) shall apply for the purpose of determining whether a transaction
was valid by virtue of paragraph 3 as it applies for the purpose of
determining whether a transaction was valid by virtue of Article
11(3).
3Article 13(2) and (3).
JOINT AND JOINT AND SEVERAL ATTORNEYS
PART I
JOINT ATTORNEYS
1. In Article
4(6), the reference to the time when the attorney executes the
instrument shall be read as a reference to the time when the second or
last attorney executes the instrument.
2. In Article
4(8) and (9), the reference to the attorney shall be read as a reference
to any attorney under the power.
3. In Article
7, references to the attorney shall be read as including references to
any attorney under the power.
4. Article 8
shall have effect as if the ground of objection to the registration of
the instrument specified in paragraph (5)(e) applied to any attorney
under the power.
5. In Article
10(2), references to the attorney shall be read as including references
to any attorney under the power.
6. In Article
10(4), references to the attorney shall be read as including references
to any attorney under the power. <14>
PART II
JOINT AND SEVERAL ATTORNEYS
7. In Article
4(9), the reference to the bankruptcy of the attorney shall be construed
as a reference to the bankruptcy of the last remaining attorney under
the power; and the bankruptcy of any other attorney under the power
shall cause that person to cease to be attorney, whatever the
circumstances of the bankruptcy.
8. The
restriction upon disclaimer imposed by Article 6(6) applies only to
those attorneys who have reason to believe that the donor is or is
becoming mentally incapable.
EXPLANATORY NOTE
(This note is
not part of the Order)
This Order makes provision under the law of Northern Ireland to
enable powers of attorney to be created which will survive any
subsequent mental incapacity of the donor. The Order sets out the
circumstances in which instruments creating such powers of attorney are
to be registered in the High Court and indicates the scope of an
attorney's authority under such a power.
ISBN 0 11 077627 5
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© Crown copyright 1987 |
Prepared 20th September 2000
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