Assisted Decision-Making (Capacity) Act 2015
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Objections to registration | ||
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71. (1) Any of the persons referred to in section 68 (3), or any other person who appears to the Director to have sufficient interest or expertise in the welfare of the donor, may, no later than 5 weeks from the date on which notice is given in accordance with that provision, notify the Director that he or she objects to the proposed registration. | ||
(2) An objection under subsection (1) shall be in such form and shall be accompanied by such fee as shall be prescribed by regulations made under section 79 and may be made on one or more of the following grounds: | ||
(a) that the enduring power of attorney or instrument creating it is not in accordance with section 59 , 60 , 62 or 63 ; | ||
(b) that the notice requirement of section 61 or section 68 (3) was not complied with; | ||
(c) that the donor does not lack capacity; | ||
(d) that fraud, coercion or undue influence was used to induce the donor to execute the instrument creating the enduring power of attorney; | ||
(e) that a false statement is included in the instrument creating the enduring power of attorney or the application to register the instrument; | ||
(f) that the attorney is not a suitable person within the meaning of section 59 (6). | ||
(3) Where the Director receives an objection in accordance with subsection (2), made within the period specified in subsection (1), he or she shall— | ||
(a) review the objection, | ||
(b) consult with the attorney and, where the Director considers it is appropriate to do so, the donor, and | ||
(c) consult with such other persons as he or she considers relevant, | ||
and shall— | ||
(i) where he or she is of the view that the objection is not well founded, notify the person who made the objection of his or her view, provide reasons for that view and proceed, subject to section 69 (1), to register the instrument concerned, or | ||
(ii) where he or she is of the view that the objection is well founded, notify the person who made the objection of his or her view and make an application to the court for a determination on the matter and for a determination as to whether the enduring power should be registered. | ||
(4) The court, pursuant to an application made to it under subsection (3)(ii), may— | ||
(a) require the Director to register the instrument creating the enduring power of attorney, | ||
(b) declare that the instrument creating the enduring power of attorney should not be registered, or | ||
(c) make such other declaration or order as it considers appropriate. | ||
(5) A person who makes an objection under subsection (1) may, not later than 21 days after the date of issue of the notification by the Director under subsection (3)(i), appeal a decision to register the instrument concerned to the court. | ||
(6) Upon an appeal under subsection (5), the court may— | ||
(a) require the Director to remove the instrument concerned from the Register, | ||
(b) affirm the decision of the Director, or | ||
(c) make such other declaration or order as it considers appropriate. |