1. Whose Life is it Anyway?
January 2018

2. What do I mean by life planning?
Appointing someone to make decisions for you during your life time – if you can’t act for yourself
Today’s discussion

3. Why promote life planning?
The NHS CCG and Council have a duty to meet the eligible health and social care needs of local people
In most cases, people have to consent to receiving our help – to be able to make decisions about what is on offer to them
The law (the Mental Capacity Act 2005) tells us how to help people who may not be able to make decisions about their health and care needs
If a person we need to help cannot make their own decision about health and social care, we must
Find someone who is legally appointed to make the decision on behalf of the person
If no one is legally appointed to make the decision, make the decision for the person in their best interests – or seek formal authority to make decisions
If there is no one legally appointed to make the decision, it can be difficult for us to decide what is in the person’s best interests. We have to take into account the person’s wishes and feelings: what happens if we don’t know what they are?

4. Why bother with life planning?
If you need help with finances and no one has authority for them, no one will be able to (e.g.) access your bank accounts and there will be no one to pay the bills if you can’t. This could mean you miss out on things you need, create debt, or cause stress for you or others trying to help you
If you can’t make health and care decisions and no one has authority to take those for you, care professionals could (e.g.) take decisions on where you live, or what treatment you receive. This can mean decisions being taken on your behalf which do not reflect your values and wishes by people that don’t know you
“The worst thing you can do for your family is tell them what you want but not empower them to protect you” Jenny Kitzinger;

5. Who’s who of lifetime decision makers
The term ‘Next of Kin’ is often used in health and social care as shorthand for “who should we communicate with about you?”
Appointees are appointed by DWP for a benefit claimant where the claimant is unable to act (physical disability or mental incapacity). DWP decide whether and who to appoint. An appointee
Establishes which benefits the claimant is entitled to, and claims them
Uses the benefit money received in the claimant’s best interests
Notifies DWP/ HMRC of any change in circumstances
Deputies are appointed by the Court of Protection (CoP) to make financial, business, care or treatment decisions in the best interests of a person lacking relevant capacity. Deputies:
can only take decisions in accordance with the CoP order
powers are limited in scope and duration (short, issue specific orders preferred)
generally appointed re property/ finances, rarely in respect of health/ welfare
Attorneys are appointed by those who want someone to have authority to make business, property/ finances or health/ welfare decisions on their behalf. An act done by an attorney is treated as an act done by the person who has appointed them (‘the donor’)

6. Powers of Attorney Ordinary Powers of Attorney
Enduring Powers of Attorney
Lasting Powers of Attorney
Property and Finances
Can be separated into personal or business LPA
Grants attorney concurrent authority with your own (subject to restrictions)
Health and Welfare
Can be separated into social care or health and treatment
Attorney has no authority to take decisions you have capacity to take i.e. non-concurrent
Must be registered before use
Subject to conditions/ restrictions
Can be appointed in a range of ways: sole, joint, joint and several, or a combination

7. What can an attorney do via LPA?
Generally
Access personal info about you
Make complaints on your behalf
Health and Welfare
Where you should live/ with whom
Contact
Day to day care (food, dress, social care services)
Medical, dental, optical treatment – inc life-sustaining treatment?
Property and Finance
Discharge debts and contracts
Open and close bank accounts
Manage assets, inc buying and selling (e.g. shares, property)
Make business decisions
An attorney cannot-
Act outside of the terms of their appointment

8. Principles attorneys must follow
General common law principles:
owes you certain standards of skill and care (a duty of care)
must not use their power to benefit themselves, or put themselves in a position where their interests conflict with yours
cannot delegate decisions (unless specifically authorised to)
must act in good faith and with respect for your confidentiality
keep accounts and keep your property separate from their own
Statutory principles (Mental Capacity Act 2005)
You are assumed to be capable of making your own decisions unless or until shown otherwise
You are only treated as unable to make a decision once all practical steps have been taken to help you decide, without success
An unwise or eccentric decision doesn’t mean you are incapable
Any act done on your behalf must be done in your best interests
Before a decision is made, regard must be had as to whether the same purpose can be achieved in a way that is less restrictive of your rights and freedoms
You can also express preferences and/ or give instructions

9. What to look for in an attorney
Someone who is:
Over 18 and not a bankrupt (property/ finances)
Trustworthy and able to ‘work’ with your other attorneys
Able to make decisions impartially and in your best interests
Willing and able to act for you; asks for help if needed
Does not have to be a family member or friend – could be a professional (but not generally a paid care worker) or trust corporation. Think carefully about why you are picking the person(s) you select
What if I change my mind?
Ask an attorney to disclaim (notification to the donor and Office of the PG)
You can revoke the LPA at any time if you have capacity to do so
What if my attorney doesn’t do ‘the right thing’?
The Office of the Public Guardian deals with complaints about how an attorney exercises their powers; they can investigate and apply to the Court for determination where necessary
The Court provides formal intervention and may ultimately revoke an attorney’s appointment
Civil claims for compensation or damages
Criminal prosecution (ill treatment, wilful neglect, controlling or coercive behaviour)

10. A note of caution
Denzil Lush, recently retired senior judge at Court of Protection stated that he would never grant a property and finances LPA, due to the risk of abuse
The requirement for court appointed deputies to provide annual accounts and a full list of assets, along with a surety bond, provides greater protection
Reported cases of abuse are a small minority of the 2.5 million LPAs registered in England and Wales
Costs of appointing an attorney are significantly less than those associated with a Court appointed deputy; deputies incur a higher initial cost and annual costs. Court will rarely grant a deputyship order for health/ welfare preferring to make issue specific decisions

11. You can seek legal support with the above
How do I get an attorney?
There are 5 key steps to making an LPA:
Decide what you want help with
Choose your attorney, people to notify (optional), a certificate provider and witnesses
Decide whether you want to limit the attorney’s power in any way, or offer them guidance
Complete the form (available from the Office of the Public Guardian (OPG) by post or online)
Register the form with the OPG (there may be a fee)
You can seek legal support with the above

12. Other ways of making wishes known
Advance Decision to Refuse Treatment (ADRT) = an anticipatory refusal of a specific medical treatment/ treatment in certain circumstances
A valid and applicable ADRT is legally binding; it is not subject to the best interests test
ADRTs do not have to be in writing unless they are intended to refuse life-sustaining treatment (they must then be by deed)
Advance Statement = expression of wishes and feelings to be used in establishing best interests
An Advance Statement cannot compel specific treatment
ADRT represents a refusal, an Advance Statement sets out preferences
Advance Statements can be made separately from a health and welfare LPA and from an ADRT, or incorporated within them
Which takes precedence: an ADRT or a health and welfare LPA? If you register an LPA, then makes an ADRT, the ADRT takes priority. If you make an ADRT then make an LPA giving the attorney the right to consent/ refuse treatment, attorney can choose not to follow the ADRT
An advance decision and/ or advance statement can be made at

13. Conclusion Whose life is it?
Make your own choices now for a time when you may not be able to
It doesn’t have to be difficult or time-consuming: make planning your new year resolution!
Discount code: CCG18LP (Bates and Mountain, Bridge McFarland, Pepperells, Wilkin Chapman)
At the very least, make your wishes known to people who care about you
“Taking your chances isn’t just taking your chances for you, it’s also leaving an appalling mess for your family” Jenny Kitzinger

14. Thank you for listening !

15. Acting for others

16. Today’s discussion

17. Why support legal decision makers?
The NHS CCG and Council have a duty to meet the eligible health and social care needs of local people
In most cases, people have to consent to receiving our help – to be able to make decisions about what is on offer to them
The law (the Mental Capacity Act 2005) tells us how to help people who may not be able to make decisions about their health and care needs
If a person we need to help cannot make their own decision about health and social care, we must
Find someone who is legally appointed to make the decision on behalf of the person
If no one is legally appointed to make the decision, make the decision for the person in their best interests – or seek formal authority to make decisions
If we, and/ or you, don’t understand the nature and extent of your decision making authority, making decisions in the person’s best interests can be difficult – is it a) or b)?

18. Understanding your role
There are risks for you and the person you act for if you do not fully understand your responsibilities
attorneys sign a statement saying that they understand their duties – in particular the duty to act in the person’s best interests
deputies sign a declaration giving details of their circumstances and ability to manage financial affairs. The declaration includes details of the deputy’s tasks/ duties, and the deputy must assure the court that they have the skills, knowledge and commitment to carry them out
Understanding your authority gives you the best chance of
Knowing which decisions are yours to make, and how to make them
taking, and being involved in, good decisions for the person you represent
Avoiding disputes about who’s responsible for what

19. Powers of Attorney Enduring Powers of Attorney
Relates to property and affairs (finances) only
Activated on execution: no need to register unless person loses capacity
Grants attorney concurrent authority with person
Subject to conditions/ restrictions
Lasting Powers of Attorney
Property and Finances
Can be separated into personal or business LPA
Grants attorney concurrent authority with person (subject to restrictions)
Health and Welfare
Can be divided into social care or health and treatment
Attorneys has no authority to take decisions person has capacity to take i.e. non-concurrent
Must be registered before use

20. Deputyship
Appointed by the Court of Protection (CoP) to make financial, business, care or treatment decisions in the best interests of a person lacking relevant capacity to make their own choices
A deputy must only be appointed where necessary; e.g. to address problems such as
Family feuds e.g. dispute over where person should live
Abuse of vulnerable, incapacitous person
Inappropriate care/ treatment decisions
A single order is inadequate (i.e. a limited set of actions to meet presenting needs)
Deputies are most often appointed in respect of property and finances
Security: bonds are set annually by the CoP to provide protection/ insurance for the person’s assets
Supervision: at levels set by the CoP; the fee for supervision depends on the person’s level of assets
Reporting: you must write a report each year explaining your decisions and why they are in the best interests of the person

21. Principles attorneys/ deputies must follow
General common law principles:
owes certain standards of skill and care (a duty of care) to the person
must not use their power to benefit themselves, or put themselves in a position where their interests conflict with the person’s
cannot delegate decisions (unless specifically authorised to)
must act in good faith and with respect for the person’s confidentiality
keep accounts and keep the person’s property separate from their own
Statutory principles (Mental Capacity Act 2005): LPAs and deputies
The person is assumed to be capable of making their own decisions unless or until shown otherwise – consider this each time a decision is made
The person is only treated as unable to make a decision once all practical steps have been taken to help them decide, without success
An unwise or eccentric decision doesn’t mean the person is incapable
Any act done on behalf of the person must be done in their best interests – what choice would the person have made? How have they approached these decisions in the past? What do others think the person would want?
Before a decision is made, regard must be had as to whether the same purpose can be achieved in a way less restrictive of the person’s rights and freedoms e.g. inability to make one decision doesn’t indicate an inability to take all decision
The Mental Capacity Act is supported by a Code of Practice

22. Understanding Capacity
“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain” – on the balance of probability
it does not matter whether the impairment or disturbance is permanent or temporary – consider whether the person may regain capacity and if so, whether the decision can wait
A lack of capacity cannot be established merely by reference to–
a person's age or appearance, or
a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity
Unable to make a decision means unable to
to understand the information relevant to the decision (inc the reasonably foreseeable consequences of deciding or not deciding)
to retain that information (a short period may suffice)
to use or weigh that information as part of the process of making the decision, or
to communicate his decision (e.g. talking, sign language or other means); language you use to help the person must be appropriate

23. Best Interests: ‘checklist’
Must consider all the relevant circumstances (those of which you are aware, and it would be reasonable to regard as relevant)
Consider, so far as is reasonably ascertainable–
the person's past and present wishes and feelings (particularly any relevant written statement made when the person had capacity)
the person’s beliefs and values that would be likely to influence their decision if they had capacity
other factors the person would be likely to consider if they were able to do so
Take into account, if it is practicable and appropriate to consult them, the views of–
anyone named by the person as someone to be consulted on the matter in question or on matters of that kind
anyone caring for the person or interested in their welfare
An attorney or deputy

24. What you must not do Criminal offences re persons lacking capacity:
Attempt to claim more than reasonable expenses (unless explicit authority is given for remuneration)
Make gifts, other than on customary occasions (e.g. birthdays) to individuals related or connected to the donor, or to charities the donor may have given to, in proportion to the size of the donor’s assets
Criminal offences re persons lacking capacity:
ill-treatment: a person will be guilty of ill treatment if they have either deliberately ill-treated someone or been reckless in the way they treated that individual, with disregard for harm or damage to the individual’s health
Wilful neglect: commission of the offence is dependent on the circumstances, but usually arises where a person has deliberately failed to carry out an act they knew they had a duty to do
Criminal offence of controlling/ coercive behaviour towards a vulnerable adult by family member or intimate partner

25. Dealing with disputes
You must reasonably believe the person you act for lacks capacity to take a particular decision before taking it yourself, using the best interests ‘checklist’. Ensure you can justify your decisions on that basis
Where a dispute relates to a decision, be sure you are clear who has authority to make the decision
Where you are the authorised decision maker, you have final responsibility for determining the best interests of the person you act for. NB there are some decisions which have to be taken by the Court
Try to resolve informally, in the best interests of the person you act for
If someone disagrees with your assessment of best interests, consider:
Involving an advocate for the person you act for
Discussing the case with other experts and/or getting a formal second opinion
Holding/ attending a formal or informal best interests meeting
Mediation
If the disagreement cannot be settled, apply to Court for a determination. NB anyone who doubts you are acting in the donor’s best interests can apply to the Court for a decision (although sometimes Court permission is required)
Make a complaint (e.g. to the NHS or to the Ombudsman)

26. Summary: attorney/ deputy’s duties
Read and understand the powers and limitations set out within the document appointing you
Act within the limits of the authority granted
Work with whomever you have been appointed to act with
Comply with the principles of the Mental Capacity Act and Code of Practice
Follow guidance from Office of the Public Guardian/ Court
Document your actions and decisions
Consider protective (e.g. in cases of conflict) or decision specific applications (e.g. gifts which are more unusual, or certain types of medical treatment)
Provide (certified/ official) copies of the document appointing you to organisations who need it

27. If in doubt……
Your best resource is likely to be the Mental Capacity Act Code of Practice -
Seek legal advice where necessary

28. You can seek legal support
Resources
Guidance for deputies:
Guidance for attorneys
Report concerns about an attorney/ deputy:
NHS and Adult Social Care Customer Care Team:
Other (non-legal) support such as the Carers’ Support Service, Alzheimers Society, AgeUK, Centre4 Advice Service, Citizens Advice Bureau etc
You can seek legal support

29. Thank you for listening !