Chapter 4 Flashcards
How many witnesses must there be for the
Witnessed by one person assigned by the donor
How long is a general power-of-attorney valid for
Is valid whilst ever the donor has mental capacity .
When capacity is lost the power of attorney is automatically revoked
When did enduring powers of attorney end
October 2007.
Since this date is no longer be impossible to create an EPA they were replaced by LP
What happens if a donor is unable to sign the deed because of physical disability when making a power-of-attorney
They can get another person to sign it on their behalf in this case two witnesses are needed to attest the signature
A person of unsound mind cannot execute a power-of-attorney
If somebody was going overseas what type of attorney would they put in place to allow people to manage their finances
The general power-of-attorney would be created as a temporary measure.
This would be revoked if capacity was lost
As part of section 10 of the powers of attorney act 1971 what can power can The donor not pass on to the attorney
They cannot pass on the function as a trustee or personal representative that the donor may have had.
How do attorneys execute documents by way of signature
With their own signatures or by the signature of the donor e.g. a B by his attorney CD
What events make general power-of-attorney to be revoked
Revoked at any time by the donor.
Automatically revoked if the donor dies.
If the donor becomes of unsound mind.
If the donor is adjudged bankrupt
The exception to this is if the donor expressed it to be irrevocable
What happens if attorneys have no notice of revocation
They are given protection under the act as follows.
An attorney who continues to act incurs no liability to the donor or to another person.
The transaction is valid
When a business is dealing with an attorney it will have to satisfy itself with what
The power was duly executed.
It is still valid.
It gives authority for the intended transaction.
How is the power of attorney created
By a deed executed by one person- the donor
Can attorney giveaway the donors property
Not without specific permission in the deed
What are the requirements that make an LPA valid
Donor and attorney must be 18 and not bankrupt
Must have mental capacity
LPA must be in prescribed form, state that they understand their duties, certificate from another to confirm no fraud or pressure
LPA can be revoked if-
Donor or attorney bankruptcy
Death of attorney
Divorce of attorney and donor
Incapacity of attorney
How long does it take to register an LPA
> 10 weeks
Opg must do checks
3 weeks where people can object
£110 fee for court
Duties of an attorney
Make decisions in the best interest Where possible consult donor Keep money separate Keep affaires confidential No conflict of interest Don't make gifts other than customary occasions Cop approval of gift for iht reasons
What can happen if breach of duty
Made to compensate
Criminal offence
Fine and or prison of 5 years
When did LPA a come in
1 oct 2007
When can an LPA or EPA start to be used
LPA - as soon as registered with or without capacity
EPA- before its registered with capacity and after its registered without capacity power is suspended while registered
What Are the 3 main organisations the the mental capacity acts runs through
COP
OPG
Independent mental capacity advocate
5 keep principles of mental capacity act
Everyone has capacity unless it’s proved otherwise
People must be supposed to make their own decisions
People can make irrational and eccentric decisions and still have capacity
Attorney must make best decision for the donor
Every decision must be the least restrictive one
How you assess capacity
Can they understand what decision and why
Understand consequences of decisions
Can they weigh up the information
Can they communicate their decision
Powers of the COP
Decide if someone has capacity Make decisions for people Appoint deputies Say of epa or LPA is valid Remove deputies Hear objections for LPA
How to become a deputy
Must apply or be appointed by cop
Difference between attorney and deputy
Deputy appointed and must liaise with cop
Stops on death
Deputy only has powers given by cop
What’s a single order from cop
Where there is no ongoing need for powers
What can a deputy NOT do
Make a will
Make large gifts
Hold money on their behalf
Must lease re investing money
OPG duties
Maintain register of epa And LPA " " of court orders Supervise deputies Sort complaints Work with social services Provide reports to cop
What is the public guardian
An individual protect people with incapacity
Responsible for opg running
IMCA independent mental capacity advocate
Becomes involved for decisions involving serious medical treatment and long term care in line with Nhs
What’s guardianship under MCA
Limited powers to deal under the MCA
Normal for local auth to be named
Gets involved with accommodation
Medical treatment education and training
Who has jurisdiction for protecting persons who lack mental capacity
The court of protection
What types of power of attorney continue when the Donee becomes mentally incapable how has the position changed with the passing of the mental capacity act
Enjoying power-of-attorney and lasting power-of-attorney the mental capacity act replaced EPA’s with L PAs although EPA is already in existence as at first of October 2007 are still valid and can apply
Which act contains the law on general powers of attorney
The powers of attorney act 1971
Is a general power-of-attorney rendered invalid by the insanity of the donor
Yes
