Dorchester Dementia Group Powers of Attorney and the Court of Protection Stuart Bradford Partner Coles Miller Solicitors LLP

Do I need a Lasting Power of Attorney? Everyone should have one –Not just dementia, any accident or injury can leave you unable to manage affairs –800,000 people suffering according to Alzheimer's Society and a growing problem with aging population. –When start to lose capacity that is usually too late!

What is a Power of Attorney? Three basic types –Ordinary Power of Attorney –Enduring Power of Attorney –Lasting Power of Attorney

Ordinary Power of Attorney Very simple to complete As soon as sign valid Went out of fashion, but now come back in. In in the 70’s, out in the 80’s and back now! But once capacity lost, no longer effective Open to abuse

Enduring Power of Attorney No longer able to make new ones since October 2007 Existing EPAs still valid Were cheap and easy to set up –As soon as signed were valid and could be used –Continued if lost capacity, but registration needed –But open to abuse –Only cover financial affairs

Lasting Powers of Attorney Two types –Financial and Property Affairs –Health and Welfare Introduced to plug gaps left by EPA In force since October 2007 Have both then you are as covered as you can be

Financial LPA Akin to old EPA Allows attorneys to deal with bank accounts, shares, investments, land etc Can spend your money, but only in your best interests – any gifts other than normal Christmas and birthday or charity gifts need approval of court – IHT? Now have to be registered before they can be used – court involved earlier so should reduce abuse. Can be used if you have capacity or if you do not have capacity.

Health and Welfare LPA Plug the gaps of EPA Covers everything else, i.e. where you live, who you see, what you wear, what treatment you receive including life sustaining treatment Overlap with Living Wills/Advance Directives Being asked for more and more – a number of disturbing anecdotes! People need to know you have one!

What's Changed? Certificate Provider –Professional Skills –2 years personal knowledge Notifiable person –Now get to chose who get told up to 5 –previously a set list of 3 relatives Registration with OPG needed in order to use them. More Expensive – EPA 4 pages, LPA 12/13 pages!

To register or not to register? Can only use these documents if registered. Registration takes around 8 to 12 weeks –Statutory waiting period reduced to 4 weeks in April 2013 from 6 weeks, but with admin etc –Not much use if need to know re life sustaining treatment –When you need it, something has gone wrong and adds to stress! Court Fees will increase - £110 at present save some exemptions but likely to go up. Lawyers fees will go up! Best to get it out of the way at outset.

Test of Capacity In order to assess whether an individual has the capacity to make a specific decision, a two stage test must be followed: 1Is there an impairment of or disturbance in the functioning of the person’s mind or brain? 2Is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision?

Functional Test The second stage of the test dictates that the person is unable to make a decision if they cannot; 1Understand information about the decision to be made 2Retain the information in their mind. 3Use or weigh-up the information as part of the decision making process. 4Communicate their decision.

Five Statutory Principles Section 1 MCA A person must be assumed to have capacity unless it is established that they lack capacity. 2A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.

Five Statutory Principles (cont) 3A person is not to be treated as unable to make a decision merely because they make an unwise decision. 4Any act done, or decision made under this Act for or for the benefit of a person who lacks capacity must be done, or made, in their best interests. 5.Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Key issues to consider 1Asking the wrong questions. 2Assuming a client lacks capacity – depends on what the decision is. 3Is the assessment up to date? Fluctuating capacity, decisions are date and time specific. 4 Moral decisions. 5Assessment made for correct reason? Is it illness and disability reason for assessment or are they having difficulty understanding or making decisions?

What if you don’t have one? Deputyship Order from COP –Court decides who looks after your affairs – may be someone you don’t like! –Longwinded application. Six months is not unusual –Added stress at a stressful time –Mass of paper –Expensive – additional Court fees, insurance bonds, Dr’s fees and lawyers fees. £3,000 minimum all in –Ongoing accounting with the COP –COP a misnomer!

Other options Joint Accounts –Once bank aware of one owners incapacity they will often freeze account or place restrictions on it until deputy appointed Risk it and save a few £s now! Think of as an insurance policy. Have the Ordinary Power of Attorney and LPA, but don’t register it until capacity lost – good idea??

The Future An ongoing problem that will only get worse More organisations asking for both, particularly Local Authorities – covering own back. No one wants to use discretion for fear of getting sued! Moving Online. Online registration – not likely to be used by the elderly at the moment.

What to do? Get both asap If don’t want both get financial Think of as insurance Get it done properly by a qualified lawyer and register asap – if court reject LPAs, it can be resolved whilst you’re still able to do so.

Questions Does anyone have any questions?