4) Powers of attorney Flashcards
State the actions required for a family to manage an individuals affairs if they dont have EPA or LPA (2)
- An application to the Court of Protection (COP) would be required
- For a deputy to be appointed
Explain the drawbacks of applying to the Court of Protection (7)
- Time consuming
- Costly
- Assets cannot be accessed until a deputyship order is granted
- individual will have no say in who will be responsible for managing their affairs
- The deputy will have limited powers based on the individual needs
- Deputies are subject to more stringent supervision
- And an annual fee is payable
Explain the powers of a General Power of Attorney whilst being out of the country (7)
- Authorizes someone to manage the personal and financial responsibilities whilst individual is away
- They can act on the individuals behalf/sign documents with their own signature
- It can be general or specific depending on needs/flexibility on the powers given
- It can be time-limited to cover only whilst traveling or can be open ended/flexible
- Can be revoked by individual at any time in the interim
- No need to register/simple admin
- No fees involved
Explain the restrictions of General Power if Attorney (3)
- The attorney cannot act in the individuals place as a trustee/or personal representative
- They cannot make any gifts without the individuals permission in the deed
- Should the individual become mentally incapable it will be revoked
State the differences between a General Power of Attorney and LPA (7)
- Usually for a temporary period
- No need to register with the OPG
- No fees
- No certificate provider required/No solicitor
- For financial use only/no health and welfare
- No requirement to notify relatives/friends
- Ceases on donor losing mental capacity
- Cannot have replacement attorneys
State the 5 key principles of the Mental Capacity Act 2005 (5)
- Every adult has the right to make their own decisions and it must be assumed they have the capacity to do so unless proved otherwise
- An individual must be supported and given all reasonable help to make their own decisions
- An individual is not to be treated as lacking capacity simply because they make an unwise decision
- Everything done for an individual who lacks capacity must be in their best interest
- Where a decision is made for another, the ‘least restrictive option’ principle should be followed/ not make decisions which interfere with rights and freedoms of incapacitated individuals
Describe the 5 main functions of the OPG (5)
- Protect individuals lacking mental capacity from abuse
- Register LPAs/maintaining register of LPAs and EPAs
- supervising/registering deputies appointed by Court of Protection (COP)
- dealing with complaints/concerns about attorneys and deputies
- Providing admin support to COP/ providing reports to COP as requested/ working with other organizations such as social services
Explain the process of setting up an LPA (7)
- Complete the LPA form
- Submit to the OPG for registration
- the form must be signed by the donor, the attorney, a certificate provider and witnessed by an independent person
- Payment of registration fee £82
Identify the circumstances when a property and financial affairs LPA is revoked (6)
- The donor can revoke the LPA if they have mental capacity
- Bankruptcy of the donor/attorney
- Death of the donor/attorney
- Incapacity of the attorney
- Dissolution of marriage/civil partnership between donor and attorney
- The attorney is removed by the COP/ they are refusing to act
Explain the decisions that a Deputy CANNOT make on behalf of an incapacitated individual (4)
Cannot
- Make a Will or change an existing Will
- Make large gifts from capital
- Hold money or property on behalf of individual
- Invest their capital without liaising with the COP first
- Make decisions about matters not covered by the Court Order appointing them deputy
- Stop life sustaining treatment
- Restrain the individual unless it is to stop them coming to harm
