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CII J02 (Trusts) > Powers of Attorney > Flashcards

Powers of Attorney Flashcards

1
Q

What is a general power of attorney ?

A
  • Created under the Powers of Attorney Act 1971.
  • Temporary measure - E.g.donor goes abroad temporarily and gives someone else authority to run their affairs absence
  • Only valid as long as donor (person who makes the POA) has mental capacity
  • can be revoked at anytime. Automatically revoked if donor loses capacity, dies or is adjudged bankrupt.
  • Attorney cannot give away donor’s property without consent in the power
    o Making large gifts is not compatible with a power of attorney
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2
Q

What is a Lasting Power of Attorney?

A

Replaced Enduring Powers of Attorney (EPA) on 1 October 2007.
 No new EPAs can be created
 Existing ones still valid

LPA
 Created under the Mental Capacity Act 2005
 Does not apply in Scotland
 LPA gives powers to someone to act on donor’s behalf in the event that donor loses capacity or no longer wishes to act for themselves

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3
Q

What are the 2 types of LPA?

A
  1. Financial decisions LPA – pay bills, collect benefits and income
    - Can apply if the donor has mental capacity, or can be written so that attorney can only make these decisions after donor has lost mental capacity
  2. Health and care decisions LPA – allows donor to plan in advance how they wish to be looked after once they lose capacity
    - Attorney can only use the powers once donor has lost mental capacity
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4
Q

Who are the Office of the Public Guardian?

A

Whom an LPA is registered with - doesn’t become effective until it is registered

 This is usually done straight away

 Can apply online using simplified forms

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5
Q

What is the Scottish Equivalent of an LPA?

A

Scottish equivalent is continuing power of attorney (CPA) under Adults with Incapacity (Scotland) Act 2000

  1. Donor must have mental capacity when they make the LPA
    - Once lost, next of kin / friend must make application for deputyship if they want to manage another’s affairs
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6
Q

What is the process for completing an LPA?

A
  • Complete a prescribed form
  • Signed by Donor, Attorney + Certificate Provider
    This confirms donor understands effect of creating LPA and are doing so of own free will / there’s been no fraud
  • The signing needs to be witnessed by an independent person
  • Registration takes about 8 - 10 weeks
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7
Q

What makes a valid LPA?

A
  • Donor and attorney over 18, not bankrupt
  • Donor has mental capacity
  • LPA made on prescribed form
  • LPA state donor and attorney + read prescribed info and attorney understands duties
  • Certificate from prescribed person (as above)
  • Invalid if revoked
    NOTE - LPA made in England / Wales may not be accepted in other countries
  • Fee of £82 paid
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8
Q

Can an LPA be revoked?

A
  • LPA can be revoked by the donor, if they have mental capacity
  • EVEN if they lost but then regained capacity. Medical evidence would be required to prove it though
  • Revoked on bankruptcy of attorney or donor (not health and welfare),
  • Revoked if the donor/attorney are married and they divorce
  • Revoked if the attorney is incapacitated
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9
Q

What are the benefits of an LPA?

A
  • Advance planning of who should make decisions and how they should be made in event of an individual’s incapacity
  • If don’t make one, application for deputyship made to Court of Protection (COP), no say in who will look after their affairs or make decisions
  • Assets inaccessible until deputyship in place, deputy subject to more stringent supervision and an annual fee
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10
Q

What are an attorney’s responsibilities?

A
  • Make decisions in donor’s best interest (those authorised under LPA)
  • Consult with donor and others with an interest in donor’s affairs before making decisions
  • Keep own money separate from donor’s
  • Respect donor’s confidentiality
  • Ensure no conflict of interest
  • Only make gifts on customary occasions (birthdays + to those in immediate family + must be reasonable to estate value) No Large gifts
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11
Q

What happens if an attorney breaches their duty?

A
  • If attorney breaches duty, can be ordered to make restitution
  • Fine and/or 5 years in prison if mistreat / purposefully neglect someone who lacks capacity (Nadoo)
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12
Q

How does an Enduring Power of Attorney Differ?

A
  1. Only EPAs made before 1 October 2007 are valid
  2. No changes can be made to an existing EPA
  3. If an EPA is no longer valid or a change is needed then a new LPA must be created
  4. Created under the Enduring Powers of Attorney Act 1985
  5. No authority to make health and welfare decision under EPA
  6. The donor can either give their attorney powers to use immediately (i.e. before it is registered) or they can stipulate that their powers only become available in the event that the donor becomes mentally incapacitated
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13
Q

Can an EPA be revoked?

A
  • Donor can revoke power at anytime while they have mental capacity + can make own decisions
  • Either way, EPA is usually revoked if donor becomes mentally incapacitated
  • UNLESS it has been registered with the Office of the Public Guardian (OPG)- Must be done as soon as attorney believes donor is or is becoming mentally incapacitated
  • EPA suspended temporarily while registration process take place
  • Once registered attorney can continue to act despite the donor’s mental incapacity
  • If donor regains capacity they can apply to have the attorney revoked, although they will need to provide medical evidence
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14
Q

EPA Duties - what are they?

A
  • Act in donor’s best interests, not take advantage of donor for own benefit, keep money separate from their own
  • Gifts can only be made where donor might be expected to meet donee’s needs or is reasonable
  • Gifts for IHT planning cannot be made without court’s approval
  • EPA automatically revoked on the attorney’s bankruptcy
  • Donor can only revoke the EPA with permission from Court of Protection
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15
Q

What is the Mental Capacity Act 2005?

A

It supports / protects those who are unable to make their own decisions through
Court of Protection(COP), Office of Public Guardian(OPG) and Independent Mental Capacity Advocate (IMCA)

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16
Q

What are the 5 key principles of the Mental Capacity Act 2005?

A

5 key principles – values person making decisions on behalf of another must follow;

  1. All adults have right to make own decisions - Must assume they have capacity to do so, unless proved otherwise
  2. Individual must be supported and given all reasonable help to make own decisions before treated as if cannot do so
  3. Individual cannot be treated as lacking capacity because they make unwise decisions
  4. Everything done for individual who lacks capacity must be in their best interests
  5. ‘Least restrictive option’ must be followed - must make decision that interferes least with rights and freedoms of incapacitated individual
17
Q

What factors determine mental capacity?

A
  • Include injury/illness/condition that affects way mind works. Could be temporary or permanent

Inability to make a decision - decision making process + abilities;

  • 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 the decision?
  • Can they make an informed choice?
  • Can they communicate their decision?

If cannot make own decisions, then if no LPA / EPA, the COP will appoint a deputy

18
Q

What powers does the Court of Protection have?

A
  • Decide whether someone has mental capacity
  • Make decisions/act for someone who does not have mental capacity
  • Appoint deputies where lack capacity and no LPA/EPA
  • Determine whether LPA/EPA valid
  • Remove deputies/attorneys who fail to do their duty
  • Hear objections to registration of LPA/EPA
  • Must apply MCA principles when reaching its decision and ensure they are in best interests of those who lack capacity
19
Q

Who can become a deputy?

A
  • Close friend / family member
  • Could be a professional
  • Over 18
  • COP will issue court order confirming deputy
20
Q

How are deputies appointed?

A

Must apply to / be appointed by COP

Can be appointed as deputy of;

  1. Property and financial affairs; or
  2. Personal welfare
21
Q

What are a deputies duties?

A
  • Safeguard client’s assets, ensure day to day financial needs met
  • Liaise with COP regarding investing any money
  • Deputy revoked on death (legal personal representatives takeover)
  • Deputy only has powers given to them by COP - They are not an attorney

Must;

  • Only make decisions in person’s best interests,
  • Only make decisions allowed by COP
  • Apply high standard of care in decision-making

o Should keep records of decisions made
o OPG will investigate if duties not done properly
o COP may make single order if no need for ongoing powers

22
Q

What are the restrictions of a deputy?

A
  • Deputy cannot make a will/codicil for person
  • Make large cash gifts
  • Hold money or property for the person
23
Q

Who are the OPG and what is their purpose?

A

Protects those who lack mental capacity to make own decisions

Their functions;

  • Maintain register of LPA/EPA, court orders appointing deputies
  • Supervise deputies
  • Deal with complaints re attorneys and deputies
  • Work with others e.g. social services
  • Provide reports to COP where concerns are raised
24
Q

Who is the Public Guardian?

A

Individual responsible for protecting those who lack mental capacity from abuse

Duties;

  • Protect those lacking mental capacity from abuse
  • Registering LPA/EPA
  • Supervise COP appointed deputies
  • Personally responsible for management of the OPG - including money + how manage assets
25
Q

What is a receiver?

A

Receivership

o Another type of attorney - before deputies introduced in 2007

o Chosen by court rather than after individual who has lost capacity

o Supervised by court, must file regular accounts to OPG, restricted access to client capital

26
Q

What is the Independent Mental Capacity Advocate?

A
  • Its a service that supports and represent individual lacking capacity with no one to speak for them
  • They can make decisions re: serious medical treatment and long term care only.
  • NHS must consult IMCA for most vulnerable
    1. Ensures all factors relating to their care are brought to attention of NHS decision makers
    2. Involved if being moved to other NHS/LA accommodation
    3. IMCA can challenge decisions made by attorneys / deputies
27
Q

What is the Mental Health Act 1983?

A

As amended by Mental Health Act 2007, covers;

  • The reception, care and treatment of mentally disabled persons
  • The management of their property and other related matters
28
Q

What does s2 of the Mental Health Act 1983 relate to?

A

Compulsory admission for assessment in hospital (detained in hospital)

  • Maximum 28 days + can request further 28 days if need to investigate further
  • Approved mental health practitioner/nearest relative can ask for person to be sectioned

 2 doctors must recommend
 1 must be experienced in field of mental illness
 Other usually knows patient (e.g. their GP)
 Must assess within 5 days of each other
 And within 14 days of request

29
Q

What does s3 of the Mental Health Act 1983 relate to?

A

Compulsory admission for treatment in hospital (detained in hospital)

o Initially for 6 months, but can request further 6 months
o Approved mental health practitioner/nearest relative can ask for person to be sectioned and admitted

 Process same as detaining person for mental health assessment, plus doctors must confirm hospital has appropriate treatment to offer eg. mental health nursing, medication and care

30
Q

What does s4 of the Mental Health Act 1983 relate to?

A

After-care

o If detained under S3 - Local Authorities must provide free non means-tested care

o May have to start paying for own care if cease to be eligible, but LA must ensure removing after-care is not done for financial reasons

 If mental health condition persists, so should after-care

31
Q

What does s7 of the Mental Health Act 1983 relate to?

A

Guardianship - guardian can be appointed to make decisions on behalf of a person.

o Limited powers
o Make decisions on person’s behalf
o Must be made in their best interests
o Approved mental health practitioner/nearest relative can apply, 2 doctors must agree
o LA will usually be guardian, but could be a relative/friend

 Cannot proceed if nearest relative objects

32
Q

What does a guardian have the authority to do?

A

Guardian has authority to ensure

 Person lives at specified place
 Goes to that place (if they cannot do so without assistance)
 Attends medical treatment
 They have access to medical professionals

33
Q

What is Deprivation of Liberty Safeguards authorisation (Mental Capacity Act 2005)?

A

Hospital or care home must obtain authorisation to detain someone with impaired mental capacity

 Not to be confused with being sectioned due to a mental illness which requires a hospital stay / treatment or refusing stay / treatment

34
Q

What is the Mental Health Act 2007?

A

Responsibility for those with mental health conditions now sits with a wider range of professionals

 Can change designated nearest relative

 Rule changes relating to those with dementia include

o Civil partner included in list of nearest relatives
o Someone who has been sectioned can challenge who their designated nearest relative should be
o Someone detained in hospital can request access to IMCA who can explain their rights and how to challenge a section
o Guardian can take a person to the place they are required to live
o Approved mental health practitioners and social workers can recommend an individual is sectioned / has a guardian
o Responsible clinician (person in charge of someone’s treatment in hospital) could be a professional other than a doctor

CII J02 (Trusts) (13 decks)

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