Page:Mental Capacity Act 2008.pdf/13

14 (5) To the extent to which it does not specify whether they are to act jointly or jointly and severally, the instrument is to be assumed to appoint them to act jointly.

(6) If they are to act jointly, a failure, as respects one of them, to comply with the requirements of subsection (1) or (2) or Part I or II of the First Schedule prevents a lasting power of attorney from being created.

(7) If they are to act jointly and severally, a failure, as respects one of them, to comply with the requirements of subsection (1) or (2) or Part I or II of the First Schedule—
 * (a) prevents the appointment taking effect in his case; but
 * (b) does not prevent a lasting power of attorney from being created in the case of the other or others.

(8) An instrument used to create a lasting power of attorney—
 * (a) cannot give the donee (or, if more than one, any of them) power to appoint a substitute or successor; but
 * (b) may itself appoint a person to replace the donee (or, if more than one, any of them) on the occurrence of an event mentioned in section 15(5)(a) to (d) which has the effect of terminating the donee’s appointment.

Lasting powers of attorney: restrictions

13.—(1) A donee under a lasting power of attorney (or, if more than one, any of them) may only make decisions under the lasting power of attorney where P lacks, or the donee reasonably believes that P lacks capacity.

(2) A lasting power of attorney does not authorise the donee (or, if more than one, any of them) to do an act that is intended to restrain P, unless 2 further conditions are satisfied.

(3) The first condition is that the donee reasonably believes that it is necessary to do the act in order to prevent harm to P.

(4) The second condition is that the act is a proportionate response to—
 * (a) the likelihood of P’s suffering harm; and
 * (b) the seriousness of that harm.