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SCHEDULE 2 – Amendments to forms in Schedule 4 (Forms) of the Insolvency Rules 1986: form 4.64 and form 6.57

Part 1 – new form 4.64

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Part 2 – new form 6.57

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EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes amendments that are transitional and consequential upon the Mental Capacity Act 2005 (“the Act”) coming into force.

Article 3 of this Order provides a transitional provision for proceedings begun in the High Court before 1 October 2007 in relation to the personal welfare of adults who lack mental capacity. This article ensures that the High Court’s inherent jurisdiction is preserved in relation to these proceedings, and provides that such proceedings may continue to be dealt with in the High Court and determined under the High Court’s inherent jurisdiction.

Article 4 of this Order makes a transitional provision for the purpose of giving full effect to the provisions of Part 2 of the Act.

Section 46 of the Act makes provision for certain types of judges to be nominated to exercise the jurisdiction of the Court of Protection, and for one of those nominated judges who is a district or circuit judge to be Senior Judge of the Court of Protection.

Article 4 provides that the person who holds the office of the Master of the former Court of Protection immediately before the commencement of Part 2 of the Act is to be treated, immediately after its commencement, as being a circuit judge nominated under section 46(1) of the Act to exercise the jurisdiction of the Court of Protection created by section 45(1), and as having been appointed the Senior Judge of the Court of Protection.

Article 5 of this Order gives effect, in certain circumstances, to advance decisions refusing life-saving treatment, notwithstanding they do not comply with all the requirements set out in section 25 of the Mental Capacity Act. The requirements set out in section 25(5)(a) and (6)(b) to (d) of the Mental Capacity Act 2005 (requirements for a written, signed and witnessed statement that the advance decision is to apply even where life is at risk and the requirement that the advance decision is signed and witnessed) do not need to be satisfied and the advance decision shall be treated as valid and applicable where a person providing healthcare for a person (“P”) reasonably believes that P made an advance decision refusing life-sustaining treatment before 1 October 2007 and that, since that date, P has lacked the capacity to alter the advance decision in order to comply with those requirements. The advance decision must be in writing and be valid and applicable as described in section 25(2) to (4) of the Mental Capacity Act.

Article 6 and Schedule 1 of this Order make minor and consequential amendments to other legislation.