Distinctly Better

Alyson Coulson Partner Trust & Estates Department

Get proper advice!  This talk is for general information only. They are general thoughts and principles and should not be relied on for your own purposes as everyone’s circumstances are different.  Before taking any action, you do need to consider taking proper independent legal advice, which will address your particular circumstances in respect of the matters discussed.

About Hart Brown 1.One of the largest legal practices in Surrey 2.Founded in offices: Woking, Cobham, Cranleigh, Guildford, Godalming and Wimbledon Village 4.15 Partners – total 100 staff

About our Legal Departments  Commercial business  Commercial property  Residential property  Family  Dispute resolution  Trust & Estates

Lasting Powers of Attorney  What are they?  Powers of attorney  Enduring powers of attorney  Lasting powers of attorney.... and if you don’t make provision?

Lasting Powers of Attorney The Alternative  Appointment by the Court of Protection  Deputyship  Who applies?  Costs  Restrictions – acting on behalf of the Court  Accounts

Lasting Powers of Attorney 2 Parts  Property and financial affairs  Health and welfare

Lasting Powers of Attorney Property and financial affairs  Buying and selling property  Operating bank accounts  Dealing with investments  Tax affairs, claiming benefits

Lasting Powers of Attorney Health and Welfare  Where to live and who to live with  Day to day decisions, diet, dress  Medical examination or treatment – refusing/consenting

Lasting Powers of Attorney Health and Welfare  Who the donor has contact with  Assessment for and provision of community services  Arrangements to facilitate dental or medical treatment

Lasting Powers of Attorney Health and Welfare  Complaints about the donor’s care  Whether the donor should take part in social or leisure activities, education or training  Personal correspondence and papers

Lasting Powers of Attorney Health and Welfare  Rights of access to personal information (e.g. medical records)  Life sustaining treatment-specific question, witness required  Advance decisions v LPAs

Lasting Powers of Attorney The Process  Take instructions  Draw up and sign the document  Certificate – skills or knowledge based, 1 or 2 providers  Attorneys sign  Register the LPA

Lasting Powers of Attorney Drawing up the document  Appointment – how many Attorneys?  Joint or joint and several? or both!  All property and affairs?  With restriction?  Dialogue boxes

Lasting Powers of Attorney  When does it come into use?  Property and financial affairs  Health and welfare

Lasting Powers of Attorney  Checks and balances  Choice of attorney  Certificate/s  Storage of document  Registration  The register

Lasting Powers of Attorney  Registration process  Notice  Application  Registration  The attorney can then assist  Role of the Court of Protection

Practical issues When will you be asked to work with us as lawyers?  Assessment of mental capacity  Completion of formal forms for the Court  Acting as witnesses, expert witnesses or certificate providers

When might capacity assessments be required?  Making a will  Making or registering a power of attorney  Revoking a power of attorney  On application for deputyship – capacity to manage financial affairs  Various others?

Solicitors instructing doctors  Do not assume expertise in these matters  Quality of instructions = quality of advice  Be clear about what client wishes to do  Inform and explain (in clear and simple terms) the legal test to be applied  Provide all relevant information  Confirm the standard of proof  Reminder that challenge is possible

Doctors receiving instructions  Decline if insufficient experience  Request more information if required  Details of test of capacity as required by law  Why opinion is sought and effect on your patient  Details of the patient’s property, affairs and family background if relevant to test  Is the matter likely to be disputed?

Doctors receiving instructions  Be specific – reports lacking details, diagnosis and reasons will be of little value  Your report could significantly affect the patient’s autonomy to make decisions  Your report could allow the patient or a third party to carry on doing something prejudicial to the patient  You may need to support your report in Court.

Witnessing documents Why do we ask – the “golden rule” Kenward vs Adams (1975) Where a will has been drawn up for an elderly person or someone who is seriously ill, it should be witnessed or approved by a medical practitioner. It is assumed that the doctor will have made an assessment of capacity.

To assist or not with a request to assess capacity?  What is the policy of your surgery?  Take advice from your professional body  Do you feel confident to assist?

Who should assess capacity? The individual who wishes to make a decision on behalf of an incapacitated person is responsible for assessing his or her capacity. Where consent to medical treatment is required, the health professional proposing the treatment needs to decide whether the patient has the capacity to consent. The reasons why capacity is in doubt should be recorded in the medical record, as should details of the assessment process and its findings. The more serious the decision, the more formal the assessment of capacity is likely to be, and, where appropriate, it might be advisable to refer to a psychiatrist or psychologist for a second opinion. BMA Guidance

How do I assess capacity?  The test is functional - focusing on a decision making process  Does the person have “an impairment of, or a disturbance in the functioning of, the mind or brain” which may affect their ability to make the decision in question?

How do I assess capacity? Under the MCA, a person is regarded as being unable to make a decision if, at the time the decision needs to be made, he or she is unable:  to understand the information relevant to the decision  to retain the information relevant to the decision  to use or weigh the information; or  to communicate the decision (by any means). Where an individual fails one or more parts of this test, then they do not have the relevant capacity and the entire test is failed.

How do I assess capacity?  Consult family and friends if appropriate for background information.  Don’t discriminate or assume based on age, appearance, their condition or behaviour  Accept that capacity may fluctuate and that advice or assistance may be required from others more experienced or qualified.

To assist or not? Only do it if…. You have formally assessed capacity as per your professional guidelines. You are satisfied that you can make a decision about capacity made on reasonable belief backed by objective reasons. ALWAYS Make a formal record

Assessment of capacity in treatment decisions  When you need to make your own assessment of a patient’s capacity to receive treatment.  What do you need to bear in mind?  Is the appointment of an Independent Mental Capacity Advocate (IMCA) required?

What are the basic principles of the Act?  Presumption that there is capacity. Proving otherwise falls upon the challenger.  Maximise decision making capacity.  Freedom to make unwise decisions  BEST INTERESTS  Is there a less restrictive alternative?

Best Interests – what does it mean?  All decisions taken on behalf of someone who lacks capacity must be taken in their best interests.  Not necessarily a decision based on what they would want although this must be taken into account.  Taking into consideration all relevant factors, the most objective test possible.

Best Interests – what do I take into account? The views of the patient as far as they are able to express them  Can it wait until capacity is restored?  Past and present wishes expressed verbally or in writing? Is there an LPA, an Advance decision?  Beliefs or values  The effect on other people if the patient would have considered this.

Best Interests – what do I take into account?  The views of others close to the individual – family, friends, carers.  The views of those previously nominated – attorneys or deputies.  The exception – a valid and applicable advance decision refusing medical treatment made when they had capacity.

IMCA  An Independent Mental Capacity Advocate.  Appropriate if you cannot obtain the views of others close to the individual suitable to help make decisions about medical treatment such as family, friends, carers.  If in serious doubt as to the best course of action to take, healthcare professionals should refer to The Court of Protection.  Certain decisions MUST always be referred to the Court – sterilisation, withdrawal of nutrition/hydration in PVS cases.

Questions? Alyson Coulson Partner with Hart Brown Solicitors

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