Lasting Powers of Attorney & Deputyships Office of the Public Guardian Presented by Andrew Parker.

Slides:



Advertisements
Similar presentations
Mental Capacity Act 2005.
Advertisements

Assessing capacity in General Practice. Aims Brief overview of metal capacity act Become more familiar with assessing capacity in General Practice.
The Mental Capacity Act 2005 Implications for Front Line Staff Richard Williams Professor of Mental Health Strategy, University of Glamorgan Professor.
2005. Why is it necessary When person lacks capacity physicians have power and influence over them which could be abused 30% pts on acute medical wards.
Epilepsy and Mental capacity
Dealing with Capacity and issues surrounding the Court of Protection
Making a Will - what you should know Sarah Lennon Inclusion Ireland.
The mental capacity act 2005
1 The Care Act: Information & Advice Lucy Bonnerjea, July 2014.
2009 Mental Capacity Act 2005 Implications for Shared Lives Carers.
When you can’t manage your own affairs The Protection of Personal and Property Rights Act 1988.
AN INTRODUCTION TO. Financial Abuse and the Law  Lasting Powers of Attorney  Legal remedies for financial abuse  The problems with legal remedies 
Substitute Decision Making Irina Kordic Murphy Battista LLP.
Distinctly Better. Alyson Coulson And Shaun Parry-Jones Partners, Trust & Investment Department Presentation to:
Lasting Power Of Attorney (LPOA) Wendy Burn Consultant Old Age Psychiatrist Leeds July 2014.
PLANNING FOR INCAPACITY 18 July Lucy Taylor Solicitor Court of Protection Team Irwin Mitchell LLP.
Distinctly Better. Alyson Coulson Partner Trust & Estates Department.
1 Palliative Care Conference 4 July 2004  Briefing on Mental Capacity Act  Advance Decisions  Deprivation of Liberty  The Lessons Learned John Gibbons.
Dr. Eilionóir Flynn Centre for Disability Law and Policy.
MCA Learning Pack – Session 3 1 Mental Capacity Act 2005: a practice-based course Supporting older people in care homes and the community as they would.
Mental Capacity 23 rd Sept Matt O’Connor –Safeguarding Lead B&AtPCT.
Mental Capacity Act Practitioners Forum The Court of Protection.
Syed & Quinn Ltd 09/10/2015 Syed & Quinn Ltd
1 Support needs of guardians and attorneys in Scotland Jan Killeen, Public Policy Director, Alzheimer Scotland.
Vulnerable Clients: supported decision making Solely Adults with Incapacity Guardianship, Power of Attorney, Wills & Trusts Trust Management.
THE MENTAL CAPACITY ACT WHY THE ACT? No existing legal framework to protect incapacitated people Only safeguards relate to money & assets Incapacity.
Mental Capacity Act Practitioners Forum Writing an Advanced Directive.
Deputyship and the Court of Protection Michael Culver TEP CTAPS Associate Solicitor and Team Leader
Advance Care Planning (ACP) - an overview ACP Learning Pack. Session One.
New rights for people complaining about adult social care providers – an introduction.
Mental Capacity Act Practitioners Forum Lasting Powers of Attorney.
Shaping healthcare … for you and your family Philip Tremewan, Designated Nurse for Safeguarding Adults Guildford & Waverley CCG Safeguarding Adults & Mental.
1 Understanding and Managing Huntingdon’s Disease Mental Capacity Act 2005 Julia Barrell MCA Manager Cardiff and Vale UHB.
Mental Capacity Act Practitioners Forum Amendments to The Court of Protection made in 2010.
ACP Learning Pack Session Three 1 ACP Learning Pack Session Three:- The affect of the Mental Capacity Act 2005 on advance care planning.
Mental Capacity Act 2005 Safeguarding Adults.
The Law in Action; The Court of Protection Janice White Senior Solicitor 18 th April 2013.
Easy Read Summary Mental Capacity Act Mental Capacity Act A Summary The Mental Capacity Act 2005 will help people to make their own decisions.
Consent & Vulnerable Adults Aim: To provide an opportunity for Primary Care Staff to explore issues related to consent & vulnerable adults.
Who is the MCA for? Anyone aged 16 or over who is unable to make a decision for themselves due to an impairment, or disturbance, in the functioning of.
Mental Capacity Act and DoLS. Aim – Mental Capacity Act You will: Know what is covered by the MCA Understand the principles of the Act Understand what.
Safeguarding Adults Care Act 2014.
Mental Capacity Implementation Programme Mental Capacity Act 2005.
Being in control of my choices Martin Watson Mental Capacity Act Project NHS Birmingham South Central CCG.
Ray Ward Estate planning involving persons with a disability.
The 5 Principles of the MCA The Safeguards of the Act 1. Start by assuming the person has capacity to make the decision for themselves Every adult over.
Dennis is 90 years old, he has fallen over and needs an operation, the medical team states that his wife can consent on his behalf, if he is unable to.
East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone Mental Capacity.
Health and Social Care Deprivation of Liberty Safeguards.
Mental Capacity Implementation Programme Mental Capacity Act 2005 Paul Gantley National Implementation Programme Manager DH / CSIP
Mental Capacity Implementation Programme Mental Capacity Act 2005 Dora Jonathan Regional Programme Lead CSIP West Midlands 0121.
The Mental Capacity Act (2005) and Lasting Powers of Attorney Adult Social Care Provider Forums July 2010 Simon Purdy – MCA/DoLS Co-ordinator.
Health and Social Care Training Mental Incapacity Act 2005 Awareness.
Mental Capacity Act Working Towards Implementation.
The Mental Capacity Act Learning Objectives   What is the Mental Capacity Act, including the Deprivation of Liberty Safeguards   Awareness of.
1 MCA Learning Pack – Session 4 Mental Capacity Act 2005: a practice-based course Supporting older people in care homes and the community as they would.
The Mental Capacity Act How this relates to the NMC Code Mental Capacity Act Project Team.
LASTING POWERS OF ATTORNEY. What is a Lasting Power of Attorney? Why are they required? What happens if we don’t have an LPA in place? What is the process.
Mental Capacity Act 2005 The Mental Capacity Act 2005 provides a legal framework to empower and protect people aged 16 and over who lack, or may lack,
Dorchester Dementia Group Powers of Attorney and the Court of Protection Stuart Bradford Partner Coles Miller Solicitors LLP.
SAFEGUARDING – MENTAL CAPAPCITY ACT.
Unit 503: Champion equality, diversity and inclusion
Planning for the future
Mental Capacity Act Practitioners Forum
Supporting decision making and mental capacity - Cymru
From Dementia Skilled Improving Practice NES/SSSC 2011
Disclaimer The material in this presentation does not constitute legal advice. This presentation has been produced by Crystal Lawyers and has been prepared.
Lasting Powers of Attorney
Jennie Kingham Senior Associate, Chartered Legal Executive
Powers of Attorney York RLA
Presentation transcript:

Lasting Powers of Attorney & Deputyships Office of the Public Guardian Presented by Andrew Parker

This presentation will cover: Brief introduction to the Mental Capacity Act and best interest decision making. Planning Ahead: The role of the Office of the Public Guardian What an LPA covers Attorneys If you do not/cannot plan ahead: The role of the Court of Protection : Deputyship.

The Mental Capacity Act (MCA) 2005 Came into force on 1 October Provides structure and clarity to decision-making for people who lack capacity. Sets out in law what should happen in situations when a person is unable to make such decisions. Ensures that those who lack capacity are empowered to make decisions for themselves where possible. Any decision made, or action taken must be in the best interests of the person concerned. Has a Code of Practice that amplifies and clarifies the legislation. Established the Court of Protection & Office of the Public Guardian

The Mental Capacity Act Assume a person has capacity unless proven otherwise. Do not treat people as unable to make a decision unless you have tried all practicable steps to help them. Do not treat someone as incapable of making a decision just because their decisions are unwise. Any act done or decision made for or on behalf of someone without capacity should be done or made in their best interests. Before doing something for someone or making a decision on their behalf, consider whether you could achieve the same outcome in a less restrictive way. The legislation for LPAs is set out in the Mental Capacity Act, which came into force on 1/10/2007. The 5 key principle of the MCA are as follows:

Office of the Public Guardian : Our Mission To improve awareness and knowledge of the OPG and the services it provides in order to facilitate preparation for a possible future lack of mental capacity. To continue to improve the service provided to Deputies and Attorneys, and those applying for such roles, in order that decisions concerning people who lack capacity are made optimally and quickly. To engage effectively with a range of supporting organisations in order to improve the effectiveness of the Mental Capacity Act 2005 and engagement with the OPG.

The Role of the Public Guardian (PG) Registers Lasting Powers of Attorney (LPA):  1) Property & Affairs or, 2) Health & Welfare  Must be registered before use Registers Enduring Powers of Attorney (EPA):  Pre-MCA financial affairs instruments  Registered when donor losing capacity Supervising & supporting Deputies appointed by the Court Practice & Compliance  Investigates claims of abuse  Safeguarding through Court application & sign posting  Publishes guidance and Practice Notes Raising awareness of the MCA  Building and maintaining effective relationships with stakeholders

Planning ahead after implementation of the Act: LPA LPAs and EPAs allow someone to plan in advance for future loss of mental capacity. EPAs were the pre-Mental Capacity Act mechanism by which someone (the Donor) legally handed over the management of their financial affairs and property to someone else – there was no provision for health and welfare EPAs EPAs made before 1 October 2007 can still be used and must be registered with the OPG when someone can no longer manage their affairs. LPAs replaced EPAs from 1 October 2007 and introduced greater safeguards. An LPA can be made for property and financial affairs and health and welfare decisions.

LPA application process The LPA forms are designed so they can be completed with ease yourself. A solicitor or advisor is not necessary, but taking advice may be valuable if your plans and/or circumstances are not straightforward. There are three key steps to the LPA process:  choosing your attorneys and other people you need to be involved  completing the LPA form  registering the LPA. The LPA form has three parts: Part A - the donor completes providing details of the attorneys, people to be told. Part B - the certificate provider fills in detailing how they know you and their professional skills. Part C - attorneys fill in and sign to state they understand their responsibilities.

LPA002- Application to register a Lasting Power of Attorney The form duplicates information from the LPA to validate the instrument It also allows the applicant to update personal details such as address A separate LPA002 should be completed if both P&A, and H&W are being submitted

The LPA002 should be submitted as soon as possible after posting the LPA001. The reverse of the form explains the process of objecting If the person to be notified has died, there is no need to complete the form. All effort should be made to contact the named person if address is believed to have changed. LPA001- Notice of intention to apply for registration of a Lasting Power of Attorney.

Someone can chose to apply for one or both LPAs, but that majority of applications are for property and finance. There are two types of LPA that can be made: Health & WelfareProperty & Finance

Property & Financial Affairs LPA - Front page

LPA – Property & Affairs An Attorney can make any decisions the Donor would make in respect of finances and property. Attorneys will generally: Pay regular bills Manage income and expenditure Buy or sell property Manage investments and even carry on a business This type of LPA can be used where Donor retains the capacity to make the required decision but wishes to have the Attorney(s) act for them.

LPA – Health & Welfare Attorney(s) for Health and Welfare may make decisions that the Donor would normally make about their personal welfare:  Where the Donor lives  Accessing the Donor’s medical records  Deciding what the Donor will wear or eat This type of LPA can only be used where the Donor lacks the capacity to make the required decision.

Life Sustaining Treatment (LST) Page Donor must execute the LST page correctly in order for attorney to have LST power Invalid LST page does not necessarily invalidate the whole instrument Strict order of signing applies

Named persons Attorney's) cannot be a named person Must be at least one independent person If not there must be two certificate providers Severance

Donor “execution” Signatures Witness Dates

Certificate Provider Part B Cannot be related to donor or attorney Cannot be a partner or employee of the donor or attorney Be owner, director, manager or employee of a home where the donor resides. Look and see what the CP is signing up to Knowledge of the donor Professional skills

Attorney Part C Name of attorney on Part C required unless we can identify attorney name from signature. Strict order of signing Date gap between B and C not greater than one year HW and P&FA Part Cs are not interchangeable.

(LPA) Objections made to the OPG Factual Grounds The Donor or Attorney is bankrupt or interim bankrupt (for property and affairs LPAs only) The Attorney is a trust corporation and is wound up or dissolved (for property and affairs LPAs only) The Donor or Attorney is dead. There has been a dissolution or annulment of a marriage or civil partnership between the Donor and Attorney (where they are spouses) except if the LPA provided that such an event should not affect the instrument. The Attorney(s) lack the capacity to be an attorney under the LPA. The Attorney(s) have disclaimed their appointment.

(LPA) Objections to the Court of Protection Prescribed Grounds That the power purported to be created by the instrument is not valid as a LPA. e.g. the person objecting does not believe the donor had capacity to make an LPA. That the power created by the instrument no longer exists e.g. the donor revoked it at a time when he/she had capacity to do so. That fraud or undue pressure was used to induce the donor to make the power. The attorney proposes to behave in a way that would contravene his authority or would not be in the donor’s best interests.

Fees, Exemptions and Remissions There is no cost to make an LPA unless you decide to use a solicitor or other professional. The fee for the registration of an LPA is £130. The person registering is responsible for paying any fees. You may be exempt from paying the fee if you are in receipt of certain benefits. If you are not eligible for exemption and your gross annual income* is less than £12,000, you may be eligible for a 50% reduction of the fee. * Gross annual income may come from employment, non-means-tested benefits (such as Attendance Allowance and Disability Living Allowance), pensions and interest from capital investments.

Who is a Deputy? A deputy is someone appointed by the Court of Protection to make decisions for someone who is unable to do so on their own as they lack capacity. Who can become a Deputy? A deputy is usually a close friend or family member of the person who needs help making decisions. A deputy can also be a professional, such as an accountant or a solicitor. Any deputy must be over the age of 18. The Court of Protection will decide who can be a deputy The responsibilities of a Deputy The decisions a deputy makes can have a big impact on the other person’s life. A deputy should: only make decisions in the person’s best interests only make the decisions the court says a deputy can make apply a high standard of care when making decisions

What happens after the Court makes an Order? The person that lacks capacity must be informed of the order The deputy must lodge an insurance bond to protect P’s monies The Public Guardian will supervise the deputy on an annual basis.

How is a Deputy supervised by the OPG? The OPG has a responsibility to check that a Deputy is doing everything they should be doing. This involves making sure: That the a deputy complies with the terms of the Court order That decisions are made in accordance with the MCA and the Code of Practice That a deputy is acting in the client’s best interests This called Supervision. The OPG has four different levels of Supervision depending on how much support they think a deputy will need.

Supervision fees The annual supervision fees are: £320 per annum for Types 1, 2A and 2 supervision £35 per annum for Type 3 supervision Where client’s have adequate funds they are required to pay for the cost of supervision. However, the client may be eligible for fee exemption or remission if fees would cause hardship.

Court/OPG costs The comparative cost for making an LPA and applying to the Court are: LPACourt Order Costs £130 H&W LPA £130 P&F LPA £400 Application Fee £400 Appeal Fee £500 Hearing Fee £100 Deputy assessment fee £320 Annual supervision fee Timeframes11 WeeksUp to 25 Weeks ReportingNot required Annual report form to be submitted Decision making Choose your own attorneys and restrictions Court appointed deputy and restrictions

Further reading

Contact us Office of the Public Guardian PO Box Birmingham B2 2WH T: Mon - Fri from 9am - 5pm (Except Wed 10am - 5pm) F: E: customer