Chapter 9: Adviser and client: understanding the relationship

Question 1

Under the Mental Capacity Act 2005 (MCA), the core definition of capacity is, what?

Answer 1

A person lacks mental 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.

Question 2

Under the MCA, the courts must apply a functional test which focuses on how the individual will make the decision. There are four elements to this, what are these?

Answer 2

1. Can the individual understand the information relevant to the decision?
2. Can the individual retain that information?
3. Can the individual weigh that information as a part of the process of making a decision?
4. Can the individual communicate their decision (whether by talking, using sign language or any other means)?

Question 3

Anyone acting for someone who lacks mental capacity must always act with the person’s what, in mind?

Answer 3

Anyone acting for someone who lacks mental capacity must always act with the person’s best interests in mind.

Question 4

When is a POA automatically revoked?

Answer 4

On death
Bankruptcy
Expiry of a specified time.

The donor can also revoke the attorney at any time.

Question 5

What happens to a ordinary power of attorney if the individual loses mental capacity?

Answer 5

It ceases immediately.

Question 6

What is an Enduring Powers of Attorney?

Answer 6

Enables an attorney to continue to act in the event of mental incapacity. This was repealed by the MCA and then re-instated almost in its entirety.

While the individual has mental capacity, an EPA usually confers the same power as a normal power of attorney. If mental incapacity occurs, an EPA continues, unlike a power of attorney.

Question 7

What is a feature of an enduring power of attorney

Answer 7

can be used prior to being registered

Question 8

In order to qualify as an EPA, the following requirements need to have been met…

Answer 8

• it had been established while the individual had full mental capacity;
• the individual was aged 18 or over and was not bankrupt;
• it satisfied the conditions of the Enduring Powers of Attorney Act 1985, e.g. it used prescribed documentation;
• the attorney must register the EPA with the Court of Protection when they believe the individual has lost, or is starting to lose, their mental capacity.

Question 9

The EPA gives the attorney power to do what?

Answer 9

Deal with financial affairs, e.g. sign cheques or withdraw money from a bank or building society account.

Sign documents on behalf of the individual.

Make purchases on behalf of the individual.

Make usual gifts to friends, relatives or to charity.

Dispose of property.

Question 10

An EPA does not allow the attorney to do what?

Answer 10

Make substantial or unusual gifts; this can only be done with the consent of the Court.

Make decisions about personal care and welfare, including care arrangements and medical treatment.

Question 11

What are the two main differences between an EPA and LPA?

Answer 11

1. They can allow the attorney to make health and care decisions, in addition to decisions on just finance.
2. LPAs only come into effect when registered. EPAs may give the attorney power (unless restricted) prior to registration.

Question 12

What are the 3 elements of an LPA?

Answer 12

Donor’s statement - which includes details of the donor and a number of statements that must be confirmed by the donor.

‘certificate provider’s statement’ - Which is where an independent third party confirms that, in their opinion, the donor understands the purpose and scope of an LPA and that they are not acting under undue pressure.

attorney’s statement - Each attorney must sign to say that they understand the duties and obligations of an attorney.

Question 13

Who is an LPA registered with?

Answer 13

Office of the Public Guardian

Question 14

What is the ‘Preferences and instructions’ section of the LPA?

Answer 14

Provides the donor with the opportunity to express their preferences and instructions.

A preference is not legally binding on the attorney.

An instruction is something that must be followed.

Question 15

What is a living will?

Answer 15

Way for someone to express their wishes about future treatment was to affect a living will (also referred to as advance life directive). This is still possible and, if valid and applicable, can provide the same rights to refuse treatment as someone with capacity would have.

Medical staff are ethically and legally bound to follow it – whether or not they believe it to be in the patient’s best interests or not.

Question 16

Living will refers to one of two things, what are these?

Answer 16

Advance decision, which is legally binding.

Advance statement, which is not legally binding.

Neither of these statements need to be in writing, however, an advance decision to refuse life sustaining treatment would need to be in writing and adhere to the requirements set out in the MCA.

Question 17

What is an advance decision?

Answer 17

Refers to a specified medical treatment.

It cannot be used to insist on a certain treatment, refuse basic care, such as washing or feeding, or ask for a person’s life to be ended.

It can, however, be used to convey the individual’s views on certain types of treatment; for example, whether to allow a blood transfusion. If the document uses the wording ‘even if life is at risk as a result’, then the wish must be respected by medical practitioners, even if they do not believe it is in the individual’s best interests.

Question 18

what is an advance statement?

Answer 18

Sets out how the individual would like to be treated, or their likes and dislikes. It should be taken into account when medical staff determine what is in the individual’s best interests.

Question 19

What happens if there is both an advance decision and a health and care decisions LPA? In these circumstances:

Answer 19

• A living will written before a health and care decisions LPA is invalidated by the subsequent LPA.
• An advance decision made after a health and care decisions LPA overrules the LPA – the attorney must follow the advance decision where the proper formalities have been met.

Question 20

When an EPA or LPA is set up with more than one attorney, the donor needs to determine how decisions will be made. The two main options are as follows:

Answer 20

jointly – this means that attorneys must make decisions together and agree to them. If a ‘joint’ attorney dies, the LPA must cease (unlike those set up jointly and severally). An LPA arranged on a ‘joint’ basis needs the attorneys to agree, otherwise a decision cannot be made.

jointly and severally – this means that each attorney can act independently or in unison.

Question 21

What is the role of the court of protection?

Answer 21

The Court of Protection looks after the interests of people who lack capacity and are otherwise not able to look after their own affairs. In other words, they have not previously made alternative arrangements, such as an EPA or LPA.

Question 22

What is the De minimis exception?

Answer 22

Attorneys or deputies do not have automatic powers to make substantial gifts but, under the de minimis exception, may make limited gifts in certain circumstances.

The amount is restricted to the annual £3,000 IHT exemption, plus the small gifts exemption of £250

Question 23

When can De minimis gifts be made?

Answer 23

• the donor has a life expectancy of five years or less;
• the donor’s estate exceeds the IHT nil-rate band;
• the gifts are affordable and would not affect the donor’s standard of living; and
• there is no evidence to suggest that the donor would have opposed these gifts.

Question 24

What is the office of public guardian and what is its role?

Answer 24

The administrative arm of the Court of Protection in England and Wales.

Assist the deputy (usually a family member or adviser) in managing the person’s financial affairs

Maintain a register of lasting power of attorneys (LPAs) and court appointed deputies.

Co-operate with other agencies to supervise deputies.

Investigate complaints about attorneys.

Provide information and guidance to the public.