The Enduring Powers of Attorney (Northern Ireland) Order 1987

The Enduring Powers of Attorney (Northern Ireland) Order 1987 This Order may be cited as the Enduring Powers of Attorney (Northern Ireland) Order 1987. This Order shall come into operation on such day as the Head of the Department of Finance and Personnel may by order appoint. The Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly. 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) Order 1986; “notice” means notice in writing; “trust corporation” has the meaning given in Article 9(4) of the Administration of Estates (Northern Ireland) Order 1979. 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. Where an individual creates a power of attorney which is an enduring power within the meaning of this Order then— the power shall not be revoked by any subsequent mental incapacity of his; but 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 section 4 of the Powers of Attorney Act (Northern Ireland) 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and so long as sub-paragraph (b) operates to suspend the donee's authority to act under the power as if the power had been revoked by the donor's mental incapacity. 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— to maintain the donor or prevent loss to his estate; or to maintain himself or other persons in so far as Article 5(4) permits him to do so. 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). 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— is in the prescribed form; and was executed in the prescribed manner by the donor and the attorney; and incorporated at the time of execution by the donor the prescribed explanatory information. 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— 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 that such instruments include statements to the following effect— by the donor, that he intends the power to continue in spite of any supervening mental incapacity of his; by the donor, that he read or had read to him the information explaining the effect of creating the power; by the attorney, that he understands the duty of registration imposed by this Order. Without prejudice to the generality of section 17(3) to (5) of the Interpretation Act (Northern Ireland) 1954, regulations under paragraph (2)— 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 may, if they amend or revoke any regulations previously made under that paragraph, include saving and transitional provisions. Regulations made under paragraph (2) shall be subject to negative resolution. 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. A power of attorney cannot be an enduring power unless, when he executes the instrument creating it, the attorney is— an individual who has attained eighteen years and is not bankrupt or subject to a bankruptcy restrictions order or a person in relation to whom a moratorium period under a debt relief order applies or who is subject to a debt relief restrictions order ; or a trust corporation. A power of attorney under section 26 of the Trustee Act (Northern Ireland) 1958 (power to delegate trusts etc. by power of attorney) cannot be an enduring power. A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power. An enduring power shall be revoked by the bankruptcy of the attorney whatever the circumstances of the bankruptcy. 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) Order 1986 if, but only if, the court so directs. 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. In this Article “prescribed” means prescribed under paragraph (2). 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. 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. Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may execute or exercise any of the powers or discretions vested in the donor as a tenant for life within the meaning of the Settled Land Act 1882. 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— 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 he may do whatever the donor might be expected to do to meet those needs. 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— he may make gifts of a seasonal nature or at a time, or on an anniversary, of a birth marriage or the formation of a civil partnership, to persons (including himself) who are related to or connected with the donor, and 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. 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. The attorney shall, as soon as practicable, make an application to the court for the registration of the instrument creating the power. Before making an application for registration the attorney shall comply with the provisions as to notice set out in Schedule 1. An application for registration shall be made in the prescribed form and shall contain such statements as may be prescribed. 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. No disclaimer of the power shall be valid unless and until the attorney gives notice of it to the court. Any person who, in an application for registration, makes a statement which he knows to be false in a material particular shall be liable— on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both; and on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or both. In this Article and Schedule 1 “prescribed” means prescribed by rules of court. 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. In any case where— an application for registration is made in accordance with Article 6(3) and (4), and neither paragraph (2) nor paragraph (4) applies, the court shall register the instrument to which the application relates. Where it appears to the court that there is in force under part VIII of the Mental Health (Northern Ireland) Order 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. 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— it was undesirable or impracticable for the attorney to give him notice; or no useful purpose is likely to be served by giving him notice. If, in the case of an application for registration— 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 it appears from the application that there is no one to whom notice has been given under paragraph 1 of that Schedule, or 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. 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— that the power purported to have been created by the instrument was not valid as an enduring power of attorney; that the power created by the instrument no longer subsists; that the application is premature because the donor is not yet becoming mentally incapable; that fraud or undue pressure was used to induce the donor to create the power; 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. 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. 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. 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. The effect of the registration of an instrument under Article 8 is that— no revocation of the power by the donor shall be valid unless and until the court confirms the revocation under Article 10(3); no disclaimer of the power shall be valid unless and until the attorney gives notice of it to the court; 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. 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. A document purporting to be an office copy of an instrument registered under this Order or under the Enduring Powers of Attorney Act 1985 shall be evidence of the contents of the instrument and of the fact that it has been so registered. Paragraph (3) is without prejudice to section 3 of the Powers of Attorney Act 1971 (proof of certified copies) and to any other method of proof authorised by law. 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. The court may— determine any question as to the meaning or effect of the instrument; give directions with respect to— the management or disposal by the attorney of the property and affairs of the donor; the rendering of accounts by the attorney and the production of the records kept by him for the purpose; 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; require the attorney to furnish information or produce documents or things in his possession as attorney; give any consent or authorisation to act which the attorney would have to obtain from a mentally capable donor; 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); 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. 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). The court shall cancel the registration of an instrument registered under Article 8 in any of the following circumstances, that is to say— on confirming the revocation of the power under paragraph (3) or receiving notice of disclaimer under Article 9(1)(b); on giving a direction revoking the power on exercising any of its powers under part VIII of the Mental Health (Northern Ireland) Order 1986; on being satisfied that the donor is and is likely to remain mentally capable; 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; on being satisfied that the power was not a valid and subsisting enduring power when registration was effected; on being satisfied that fraud or undue pressure was used to induce the donor to create the power; or 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. 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. 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. 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). 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— that the instrument did not create a valid enduring power; or 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 that, if the instrument had created a valid enduring power, the power would have expired before that time. 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). 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— the transaction between that person and the attorney was completed within twelve months of the date on which the instrument was registered; or 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. For the purposes of section 4 of the Powers of Attorney Act (Northern Ireland) 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. 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. In this Article “purchaser” has the meaning specified in section 4(6) of the Powers of Attorney Act (Northern Ireland) 1971. The provisions of part VIII of the Mental Health (Northern Ireland) Order 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— Article 105 (functions of Visitors) shall apply to persons within this Order as it applies to the persons mentioned in that Article; 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. 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. 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. 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. 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. 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. Where one or more but not both or all the attorneys makes or joins in making an application for registration of the instrument then— 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); notice of the application shall also be given under Schedule 1 to the other attorney or attorneys; and 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. 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. 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. 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. 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. 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. 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. An order made under this Article shall be subject to negative resolution. 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. 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— the donor's husband or wife or civil partner; the donor's children; the donor's parents; the donor's brothers and sisters, whether of the whole or half blood; the widow or widower or surviving civil partner of a child of the donor; the donor's grandchildren; the children of the donor's brothers and sisters of the whole blood; the children of the donor's brothers and sisters of the half blood; the donor's uncles and aunts of the whole blood; and the children of the donor's uncles and aunts of the whole blood. A person is not entitled to receive notice under paragraph 1 if— his name or address is not known to the attorney and cannot be reasonably ascertained by him; or the attorney has reason to believe that he has not attained eighteen years or is mentally incapable. 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. Notwithstanding the limit of three specified in sub-paragraph (3), where— there is more than one person falling within any of classes (a) to (j) of sub-paragraph (1), and 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. 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. 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— that it would be undesirable or impracticable for the attorney to give him notice; or that no useful purpose is likely to be served by giving him notice. 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. 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. A notice to relatives under this Schedule— shall be in the prescribed form; 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; 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; shall specify, as the grounds on which an objection to registration may be made, the grounds set out in Article 8(5). A notice to the donor under this Schedule— shall contain the statement mentioned in paragraph 5(b); and 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> 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. An attorney is not entitled to receive notice by virtue of this paragraph if— his address is not known to the applying attorney and cannot reasonably be ascertained by him; or the applying attorney has reason to believe that he has not attained eighteen years or is mentally incapable. <14> For the purposes of this Schedule an illegitimate child shall be treated as if he were the legitimate child of his mother and father. Notwithstanding anything in section 24(1) of the Interpretation Act (Northern Ireland) 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. Where— an instrument framed in a form prescribed under Article 4(2) creates a power which is not a valid enduring power; and 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. 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— that the instrument did not create a valid enduring power; and that the donor has become mentally incapable. 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— 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). 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. In Article 4(8) and (9), the reference to the attorney shall be read as a reference to any attorney under the power. In Article 7, references to the attorney shall be read as including references to any attorney under the power. 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. In Article 10(2), references to the attorney shall be read as including references to any attorney under the power. In Article 10(4), references to the attorney shall be read as including references to any attorney under the power. <14> 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. 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. 1954 c. 33 (N.I.) 1986 NI 4 1979 NI 14 1971 c. 33 (N.I.) 1958 c. 23 (N.I.) 1882 c. 38 1985 c. 29 1971 c. 27 fully exercised by SR 1989/63 2004 c.33 Words in art. 4(6)(a) inserted (21.4.2015) by The Insolvency (Northern Ireland) Order 2005 (Consequential Amendments) Order (Northern Ireland) 2015 (S.R. 2015/159), art. 1, Sch. para. 8 Words in art. 4(6)(a) inserted (7.3.2016) by The Debt Relief Act (Northern Ireland) 2010 (Consequential Amendments) Order (Northern Ireland) 2016 (S.R. 2016/108), art. 1, Sch. para. 11 Order applied (2.12.2019) by Mental Capacity Act (Northern Ireland) 2016 (c. 18), ss. 276(6)(c), 307(2) (with ss. 285-287); S.R. 2019/163, art. 2(2), Sch. Pt. 2 (with art. 3) (as amended by S.R. 2019/190, art. 2)