Power Of Attorney Flashcards
What are the factors in determining Mental Capacity
Mental Health and Mental Capacity Acts 2005
- Can they understand decision they need to make and why they need to make it
-Can they understand possible outcomes if they do/don’t make decision - Can they make informed choice
- Can they communicate their decision
Include injury/illness/condition affecting mind
What are the 5 key principles of the Mental Health &Mental Capacity Act 2005
- own decisions .. support…. bad decisions…. best interests…least restrictive
All adults have a right to make their own decisions (must assume capacity, unless proved otherwise)
- Individual must be given help and support to make own decision before they are treated as not being able to do so
- Individual can’t be treated as lacking capacity just because they make unwise decisions
- Everything done for somebody who lacks capacity must be done so in their best interests
- Least restrictive option must be followed (must make decision that interferes the least with rights and freedoms of incapacitated individual
What are the powers of the Court of Protection (COP) (7)
- Decide if someone has mental capacity
- Make decisions /act for somebody who does not have capacity - property, welfare or finances
- Appoint deputies who lack capacity with no LPA or EPA
- Determine whether KLPA or EPA is valid
- Hear objection to register of LPA/EPA
- Must apply MCA (Mental Capacity Act principles) when breaching decision and make sure they are in the best interests of the individual
Health &Welfare (H&W) POA
Attorney has power to make decision about (4)
- Donor’s daily routine
- Medical care
- Moving into care home
- A life-sustaining treatment
Property and Financial Affairs (P&F) LPA
Attorney has the power to make decisions about (4)
- Managing bank or building society account
- Paying bills
- Collecting benefits/pensions
- Selling your home
Who can be attorney (4)
What two basis can LPA be held if more than one attorney appointed
- Spouse/ partner
- relative
- friend
- Professional (solicitor)
Joint & several or Joint
LPA may be ended where the following occurs and there is either only one attorney or attorneys are required to act jointly (5)
- Attorney loses mental capacity
- Marriage break up (donor & attorney)
- Attorney declared bankrupt (P&F) or subject to debt relief order
- Attorney removed by court of protection
- Attorney dies
Acting as an attorney - The attorney must …(5)
- Follow any instructions authorised by LPA
- Consider any preferences
- Help donor make own decisions as much as possible
- make decisions in best interests
- respect donor’s human and civil rights
- consult with donor and other interested parties
- Keep money separate
- Confidential
- Ensure no conflict of interests
- Get advance approval from COP if gift planned for IHT purposes
- Only making decisions that are authorised
- Keep proper record
What is a General Power of Attorney
- When used
- restrictions
- Temporary measure
- EG donor goes abroad, struggles with day to day affairs
- Only valid whilst mental capacity
- Attorney needs to show original/certified copy. Can sign own signature or on behalf of
- i)Revoked anytime by donor ii) Lose mental capacity iii) dies iv) bankrupt
(If attorney does not receive notification/revocation, they are not liable and transaction valid - Attorney cant give away donor’s property without consent. Large gifts not compatible
- restrictions
Only for financial decisions (not health & welfare), can only be used whilst donor is mentally competent,
Deputies
- Who can be
- How authorised
- what with
- What can they do
- Duties
- Who = close friend, family, professional, over 18
- application and supervisioon fees payable
- COP authorises via OPG
Court order made - court hearing
- reviewed by court regularly
- Property and financial & personal welfare
Duties - safeguard assets, daily finance needs met. Liaise with COP re investing.
Only has powers given to them by COP. Revoked on death
- Only make decisions in best interests, allowed by COP & apply high standard of decision making
- keep records
- OPG investigate if any duties not carried out
- Deputy cant make will/ codicil, make large cash gifts, hold money or property for them.
Office of Public Guardian
- Purpose
- Functions (5)
Protects those who lack capacity to make own decisions
Created by Mental Capacity Act
- Functions
- Register of LPA/EPA/Depuies
- Supervise deputies
- investigates any concerns about attorneys/deputies
- Deal with complaints about deputies/attorneys
- Work with others such as social services
- provide report to COP where concerns
- protects individual lacking capacity from abuse
Independent Mental Capacity Advocate. IMCA
- Support and represent individual lacking capacity with no one to speak to
- Make decisions re serious medical treatment and long term care only
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NHS must consult with IMCA for most vulnerable
. Ensures all factors relating to care are bought to attention of NHS - Involved if being moved to other NHS /LA accommodation
- IMCA can challenge decisions made by attorneys/deputies
Enduring power of attorney
- Only ones made before 1st October 2007 are valid
- No authority to cover health & welfare decisions
- Either give power immediately or in event of mental capacity
- Donor can revoke if mental capacity
- EPA normally revoked upon mental capacity unless registered with OPG
Requirements for LPA to be valid (4)
- Donor and attorney must be over 18 and no it bankrupt
- LPA must be on a prescribed form
- Must state both parties understand duties
- read the prescribed form
- Certificate from prescribed person saying no fraud or pressure
- donor must have mental capacity
- signatures witnessed by adults independent of family
- registered with OPG
Registration paid
Benefits of anLPA
- Help individual plan health, well being and financial affairs
- If person loses capacity and no LPA, would need to go to COP for deputy
- ~Costly and time consuming
