Mental Capacity Act Practitioners Forum Lasting Powers of Attorney

This presentation will cover: A close look at Lasting Powers of Attorney (LPA’s) A close look at Lasting Powers of Attorney (LPA’s) What's different What's different Safeguards and benefits Safeguards and benefits

What is an LPA? LPA’s replace Enduring Powers of Attorney (EPA) as the way of appointing decision makers for a time when you may lack capacity LPA’s replace Enduring Powers of Attorney (EPA) as the way of appointing decision makers for a time when you may lack capacity EPA’s made prior to 1 st October 2007 can be used and registered at any time in the future EPA’s made prior to 1 st October 2007 can be used and registered at any time in the future

What is an LPA? LPA’s increase the range and type of decisions you can authorise others to make on your behalf LPA’s increase the range and type of decisions you can authorise others to make on your behalf For the first time there is the choice of allowing decisions to be made for personal welfare For the first time there is the choice of allowing decisions to be made for personal welfare Two separate types, two separate forms, cannot be combined in one document Two separate types, two separate forms, cannot be combined in one document

Who can make an LPA? Anyone who is 18 and over Anyone who is 18 and over Must have capacity to understand the purpose and effect Must have capacity to understand the purpose and effect Individuals only – not couples Individuals only – not couples Can be used to replace unregistered EPA’s or sit along side them Can be used to replace unregistered EPA’s or sit along side them

Why make an LPA? It gives the donor (maker) the choice to plan for a time when they lack capacity to make decisions for themselves It gives the donor (maker) the choice to plan for a time when they lack capacity to make decisions for themselves For the first time you can appoint a decision maker of your choice relating to personal welfare matters For the first time you can appoint a decision maker of your choice relating to personal welfare matters Important new safeguards have been introduced Important new safeguards have been introduced Attorneys (person appointed) must pay regard to the Code of Practice Attorneys (person appointed) must pay regard to the Code of Practice

Best Interests Attorneys are governed by the principles of the Mental Capacity Act (MCA) Attorneys are governed by the principles of the Mental Capacity Act (MCA) Before any decision an attorney must first be satisfied that it is in the donors best interests Before any decision an attorney must first be satisfied that it is in the donors best interests Attorneys must have regard to the Code of Practice Attorneys must have regard to the Code of Practice

LPA’s – Property & Affairs An attorney can make any decision the donor would make in respect of finances and property An attorney can make any decision the donor would make in respect of finances and property The decisions can be subject to restrictions and conditions imposed by the donor within the LPA The decisions can be subject to restrictions and conditions imposed by the donor within the LPA Generally attorneys will: Generally attorneys will:  Pay regular bills  Manage income and expenditure  Buy or sell property  Manage investments or even carry on a business

LPA’s – Personal Welfare Attorneys for personal welfare may make decisions that you would normally make about your welfare Attorneys for personal welfare may make decisions that you would normally make about your welfare  Where you live and with whom  Accessing your medical records  Deciding what you wear  Deciding what you eat.

LPA’s – Personal Welfare  Consent to or refuse to consent to:  Life sustaining treatment - Artificial nutrition or hydration - Any decision a doctor considers necessary to sustain life  The LPA must specify the donors intentions and instructions

Back Door Euthanasia? NO. Section 62 of the Act emphasises that nothing done in the Act effects laws relating to murder, manslaughter or section 2 of the Suicide Act 1961 NO. Section 62 of the Act emphasises that nothing done in the Act effects laws relating to murder, manslaughter or section 2 of the Suicide Act 1961 Section 4(5) of the Act states that no one can make a decision about life sustaining treatment if they are motivated by a desire to bring about death Section 4(5) of the Act states that no one can make a decision about life sustaining treatment if they are motivated by a desire to bring about death

How are attorneys appointed? A single attorney A single attorney More than one attorney – to act More than one attorney – to act - Together - Together and independently - Together in respect of some matters and together and independently in respect of others Replacement attorney Replacement attorney

LPA instrument (the form) Prescribed information – the donor and attorney(s) will need to read the prescribed information and confirm they have, it can be read to someone unable to read/see. Prescribed information – the donor and attorney(s) will need to read the prescribed information and confirm they have, it can be read to someone unable to read/see. Part A – Donors statement Part A – Donors statement Part B – Certificate providers statement Part B – Certificate providers statement Part C – Attorneys statement Part C – Attorneys statement

Notifiable Parties The donor includes in Part A, up to 5 named parties who are to be informed at the point of registration The donor includes in Part A, up to 5 named parties who are to be informed at the point of registration If the donor decides not to inform any named parties, there must be two separate certificate providers. If the donor decides not to inform any named parties, there must be two separate certificate providers.

Certification Process The certificate provider confirms that the donors understanding of the LPA The certificate provider confirms that the donors understanding of the LPA Two categories of certificate provider Two categories of certificate provider At least one certificate provider required – two needed where no notifiable persons have been named. At least one certificate provider required – two needed where no notifiable persons have been named.

Two types of certificate provider Category A – Knowledge Certification Category A – Knowledge Certification - Have to have known donor personally over the past two years Category B – Skills Certification Category B – Skills Certification - Registered healthcare provider - Barrister, solicitor or advocate - Registered social worker - None of the above but consider themselves to have relevant professional skills and expertise to be a certificate provider

Registration Process - 1 Registration costs £150 Registration costs £150 Objections on factual grounds must be made to the OPG – for example Objections on factual grounds must be made to the OPG – for example Bankruptcy Bankruptcy Death of attorney Death of attorney Death of donor Death of donor

Registration Process - 2 Objections on prescribed grounds must be made to the COP – for example Objections on prescribed grounds must be made to the COP – for example The person objecting does not believe the donor had capacity to make an LPA The person objecting does not believe the donor had capacity to make an LPA The donor revoked the LPA when they had capacity The donor revoked the LPA when they had capacity Fraud or undue pressure was used to induce the donor to make an LPA Fraud or undue pressure was used to induce the donor to make an LPA The attorney is not acting in the donors best interests The attorney is not acting in the donors best interests

Safeguards and benefits Choice of notifiable parties Choice of notifiable parties Certification process Certification process Attorney must have regard to the Code of Practice Attorney must have regard to the Code of Practice Restrictions and conditions can be made in the LPA Restrictions and conditions can be made in the LPA Option of replacement attorney Option of replacement attorney

So what do I do? Always get a copy of the LPA Always get a copy of the LPA It cannot be used unless it is registered (this takes 6 weeks) It cannot be used unless it is registered (this takes 6 weeks) Cannot be used if an objection is lodged Cannot be used if an objection is lodged Remember an LPA can be registered before you need to use it Remember an LPA can be registered before you need to use it

So what do I do? Check a personal welfare LPA against any Advanced Decision to Refuse Medical Treatment Check a personal welfare LPA against any Advanced Decision to Refuse Medical Treatment - If advanced decision was made before the LPA, the LPA overturns it. - If advanced decision is made after an LPA, the advanced decision takes priority

Further Information and Forms Office of the Public Guardian Office of the Public Guardian All forms available including application to waive or delay fees All forms available including application to waive or delay fees Although not required by law, this is a very complex business and simple mistakes can invalidate the LPA – so independent legal advice is in your own interests Although not required by law, this is a very complex business and simple mistakes can invalidate the LPA – so independent legal advice is in your own interests

So what do I do? A property and affairs LPA can be used as soon as it is registered, in other words before you lose capacity as well as afterwards A property and affairs LPA can be used as soon as it is registered, in other words before you lose capacity as well as afterwards A personal welfare LPA can only be used when you lose capacity A personal welfare LPA can only be used when you lose capacity A valid attorney is always the decision maker for LPA approved actions A valid attorney is always the decision maker for LPA approved actions