Statute Details
- Title: Mental Capacity (Public Guardian Fees) Regulations 2010
- Act Code: MCA2008-S106-2010
- Legislative Type: Subsidiary legislation (SL)
- Authorising Act: Mental Capacity Act 2008 (Act 22 of 2008)
- Enacting Powers: Sections 31(3) and (4) and 46 of the Mental Capacity Act 2008
- Citation: SL 106/2010
- Commencement: 1 March 2010
- Current Version (as provided): Current version as at 27 Mar 2026
- Key Provisions:
- Regulation 3: Fees payable to the Public Guardian for specified applications/matters; payment on making the application/request.
- Regulation 5: No refund of fees (subject to waiver/remission under regulation 6).
- Regulation 6: Public Guardian’s discretion to waive wholly or in part fees paid or payable.
- Schedule: Sets out the fee amounts for applications/matters (referenced by regulation 3).
- Notable Procedural Provision: Regulation 4 is deleted (as amended by S 525/2014 w.e.f. 1 Sep 2014).
What Is This Legislation About?
The Mental Capacity (Public Guardian Fees) Regulations 2010 (“Fees Regulations”) are subsidiary legislation made under the Mental Capacity Act 2008. Their primary purpose is to regulate the fees payable to the Public Guardian in connection with certain applications and “matters” that fall within the Public Guardian’s functions under the Mental Capacity Act framework.
In plain terms, the Regulations tell practitioners and applicants: (1) which types of applications or requests attract fees, (2) how much those fees are (as set out in the Schedule), (3) when the fees must be paid, and (4) whether any refunds are available if an application is unsuccessful, withdrawn, or yields no relevant information. They also provide a mechanism for fee relief through the Public Guardian’s discretion to waive fees.
Because the Regulations are tightly linked to the Mental Capacity Act 2008, they operate as part of a broader administrative and procedural system. The Public Guardian’s role typically includes maintaining registers and processing applications connected to court orders and the appointment/management of deputies. The Fees Regulations ensure that the administrative costs of these processes are funded through prescribed fees, while still allowing for discretion in appropriate cases.
What Are the Key Provisions?
1. Regulation 3 (Fees and timing of payment)
Regulation 3 is the core charging provision. It provides that, subject to regulation 5, the fees payable to the Public Guardian for an application or a matter specified in the first column of the Schedule are the amounts specified opposite in the second column. This means the Schedule is essential: without it, the Regulations do not themselves state the fee amounts.
Regulation 3(2) addresses timing and responsibility for payment. It states that the fees must be paid by the person making the application or making the request on the making of the application or request. For practitioners, this is a practical point: the fee is not payable later, and there is no general statutory “credit” or post-submission payment mechanism stated in the Regulations. Accordingly, applications should be budgeted and prepared with fee payment in mind at the point of filing/request.
2. Regulation 5 (No refund of fees)
Regulation 5 establishes a strict general rule: subject to regulation 6, no refund of any fee paid under the Regulations shall be made by the Public Guardian. The prohibition applies even where an application is unsuccessful or withdrawn, or where a search does not produce any relevant information.
This is significant for legal practice and client advice. In many administrative fee regimes, refunds may be available if the process fails or if the applicant withdraws early. Here, the Regulations expressly remove that expectation. The policy rationale is likely to be administrative cost recovery: the Public Guardian’s work in processing an application or conducting a search is treated as having been performed once the request is made and the fee is paid.
For counsel, this means that withdrawal decisions should be made with awareness that fees are generally non-refundable. It also means that “no relevant information” outcomes—such as unsuccessful searches—do not automatically trigger refund rights.
3. Regulation 6 (Waiver and remission of fees)
Regulation 6 provides the main relief valve. It states that the Public Guardian may, in his discretion, waive wholly or in part the fees paid or payable under the Regulations.
Two practical consequences follow. First, while regulation 5 bars refunds, regulation 6 can still allow fee relief—potentially even after payment—because it covers fees “paid or payable.” Second, the relief is discretionary (“may”), not automatic. Practitioners should therefore treat fee waiver/remission as something that must be requested and justified, rather than a right that follows from the outcome of an application.
Because the Regulations do not set out detailed criteria for waiver, practitioners should look to administrative guidance, internal policies, or any published Public Guardian practice directions (if available) when advising clients. In the absence of explicit statutory criteria, the discretion is likely exercised with reference to considerations such as affordability, hardship, or the nature of the matter—though the Regulations themselves do not enumerate these factors.
4. Regulation 2 (Definition of “register”)
Regulation 2 defines “register” as the register of court orders appointing deputies established and maintained by the Public Guardian under section 31(1)(b) of the Mental Capacity Act 2008. This definition matters because the Schedule includes fee items linked to applications and matters, which may include searches or requests relating to that register.
For practitioners, the definition clarifies the administrative object of certain fee-bearing activities. If a client is seeking information from the deputy appointment register, the Fees Regulations likely govern the applicable fee and payment mechanics.
How Is This Legislation Structured?
The Fees Regulations are structured in a short, functional format:
Regulation 1 sets out the citation and commencement date (1 March 2010).
Regulation 2 provides key definitions, including “register” (the deputy appointment register maintained by the Public Guardian).
Regulation 3 contains the fee charging mechanism and payment timing rule, referring directly to the Schedule for the specific fee amounts.
Regulation 4 has been deleted (by amendment S 525/2014 w.e.f. 1 Sep 2014), so it is not part of the current operative framework.
Regulation 5 provides the no-refund rule.
Regulation 6 provides the waiver/remission discretion.
The Schedule is the most practically important component for fee quantification. It lists the relevant applications/matters in the first column and the corresponding fee amounts in the second column. In practice, lawyers will consult the Schedule to determine the exact fee payable for each procedural step.
Who Does This Legislation Apply To?
The Regulations apply to persons who make applications or requests to the Public Guardian for matters specified in the Schedule. This includes, in typical practice, applicants, requesters, and other parties who interact with the Public Guardian’s administrative processes under the Mental Capacity Act 2008.
Because regulation 3(2) requires payment by “the person making the application or a request,” the fee obligation is placed on the initiating party. The no-refund rule in regulation 5 applies to fees paid under the Regulations, regardless of the outcome of the application or the results of a search. However, regulation 6 allows the Public Guardian to waive wholly or in part fees paid or payable, meaning that the practical financial burden may be reduced in appropriate cases through discretionary relief.
Why Is This Legislation Important?
Although the Fees Regulations are brief, they have real impact on day-to-day practice in mental capacity matters. First, they affect cost planning. The requirement to pay fees on making an application/request means that counsel must ensure that fees are addressed at the outset, not after filing. This is particularly important where applications are time-sensitive or where multiple requests may be made (for example, where a search of the deputy appointment register is required).
Second, the no-refund rule in regulation 5 is a key risk allocation provision. Clients often assume that if an application is withdrawn or unsuccessful, some portion of fees might be recoverable. The Regulations expressly deny refunds even in those circumstances. Practitioners should therefore manage expectations and document advice about non-refundable fees when advising on withdrawal or when there is uncertainty about the likelihood of success or the existence of relevant information.
Third, regulation 6 provides a discretionary mechanism for fee relief, which can be crucial for access to justice. Where a client faces hardship, or where the circumstances justify remission, the Public Guardian’s discretion to waive wholly or in part fees can mitigate the financial barrier created by the fee regime. For lawyers, this underscores the importance of identifying potential grounds for waiver early and making timely applications for remission where appropriate.
Finally, the Regulations’ linkage to the Mental Capacity Act 2008 means they should be read alongside the substantive and procedural provisions governing the Public Guardian’s functions. Understanding the Fees Regulations helps practitioners navigate both the legal and administrative steps involved in mental capacity proceedings and related registry matters.
Related Legislation
- Mental Capacity Act 2008 (Act 22 of 2008) — particularly provisions relating to the Public Guardian’s functions, including the establishment/maintenance of the register of court orders appointing deputies (section 31(1)(b)) and the authorising provisions for fee regulations (sections 31(3) and (4), and section 46).
Source Documents
This article provides an overview of the Mental Capacity (Public Guardian Fees) Regulations 2010 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the official text for authoritative provisions.