Mental Capacity And POA Flashcards
What makes a valid LPA?
Donor and attorney over 18, not bankrupt
Must state donor and attorney have read prescribed info and attorney must understand duties
Certificate from a prescribed person confirming donor understands LPA and no fraud or undue pressure
Attorney duties under an LPA (Finance and Property)
Follow instructions/provisions set out in LPA
Act in best interests of donor
Help donor make own decisions as best can
Not take advantage for personal gain
Keep money and assets separate from own
Keep affairs confidential
Ensure no conflict of interest
Consequences of a breach of duty by attorney
Compensate donor for losses
If mistreated/purposefully neglected donor
Fined
Imprisoned
Removed
How can individuals apply to manage a mentally incapacitated persons affairs if no POA
Apply to court of protection to appoint a deputy on persons behalf
Application/supervision fees payable
Appointment reviewed by court on regular basis
Disadvantages of not having a POA
No say in who manages affairs and makes decisions on your behalf
Lengthy process to be agreed in court - no delays with a registered LPA
Long period of time when assets can’t be accessed and no financial decisions made, can act immediately with a LPA
Powers of deputy limited - make/ amend a will, make large gift, hold property on behalf
May not include powers the person may have included in LPA
What assessment factors determine mental capacity?
Understanding information required in order to make a decision
Understanding the consequences of making/not making a decision
Weighing up information to make a choice
Communicating the decision
What steps required to revoke registered EPA if gains mental capacity
Make an application to revoke the EPA to the Court Of Protection
Provide medical evidence with the application proving has mental capacity
A fee of £371 paid to Court of Protection
When does Court of protection appoint a deputy and who can it be?
If a person loses mental capacity and there is no valid LPA or EPA in place
Court of protection will have to decide who would be a suitable deputy
Will usually be a family member of close friend
Can also be a professional
Deputy must be 18 or over
Deputyship will be evidenced by a court order
What should a deputy appointed by the COP adhere to when performing duties?
Only make decisions in persons best interests
Only make decisions allowed by the court
Apply a high standard of care when making decisions
Keep a record of any decision/decisions made in the role
When can a health and welfare LPA be used?
When donor has lost mental capacity
Must be registered with Office of Public Guardian
What decisions can an attorney make under a health and welfare LPA
Decisions on:
Daily routine
Personal care services
Medical care (agreeing and refusing treatment)
Where donor lives
End of life care
Social services
Duties of the Office for Public Guardian
Maintain register of LPA/EPA
Maintain register of court appointed deputies
Supervise deputies
Deal with concerns/complaints about deputies
Work with organisations such as social services
Providing reports to court of protection as requested
What is a mental capacity advocate and duties?
Appointed to support/ represent someone lacking capacity with no one to speak for them or family and friends won’t
Only become involved for decisions on serious medical treatment and long term care moves
Can challenge deputy or attorney decisions
Changes in mental health act relating to dementia patients?
Nearest relative can include civil partner
Person sectioned can challenge who they want designated as nearest relative
Right to access mental capacity advocate care if detained under mental health act 2007 who will explain rights and challenge section
Guardian has power to take a person to a place where they are required to live
Approved mental health practitioners as well as social works can recommend a person is sectioned or has a guardian
Can you apply to be a deputy COP if you are bankrupt?
Yes
