Topic 5 - Adviser and client relationship Flashcards
The clients may be unable to make decisions for themselves, as they may lack xxx capacity which may also mean that they lack xxx capacity.
Mental
legal
People who are elderly or in poor health may be classed as vulnerable. FCA describes a vulnerable person as
“someone who, due to their personal circumstances, is especially susceptible to detriment, particularly when a firm is not acting with appropriate levels of care”.
If people become incapacitated without putting provisions in place then xxx comes in.
substituted decision making
What may happen to your ‘client’ over time when dealing with clients and LTC?
Your ‘client’ may change e.g. to the child of the original client if they become incapable
‘legal capacity’ describes xxx
an individuals power (in law) to do certain things such as enter a contract.
Where one party of a contract does not have legal capacity, the contract will be ‘void’ or ‘voidable’ which means:
- A void contract is one in which the legal status of the contract is as if it had never existed
- A voidable contract is one that remains in force unless and until it is declared void by one of the contracting parties. Although one of the parties may be entitled to void the contract, they may also choose to let it continue in force
Advisers need to be sure whose instructions they are able to accept, and who their xxx with.
duty of care lies
It is important that if advisers are not dealing with the main client, that they have the correct xxx and that everything is xxx properly.
authority
executed and documented (done)
Authority must be checked to see it is still valid, and any individuals must have xxx to enter a contract as many long-term care contracts require this.
legal capacity
If anyone making any arrangements which require capacity, and is later proved to have lacked capacity, they may be xxx. The arrangements may be xxx
challenged
set aside, and any transactions (gifts etc) may be set aside also and challenged
People may not be in a capable state all the time, and may have periods of being xxx and some times where they are not xxx.
lucid
The definition of having capacity is essentially that you are xxx
deemed as capable until proved otherwise.
The Mental Capacity Act 2005 clarifies a number of areas that were once xxx e.g. a single test for deciding capacity, which may not take account of all aspects.
confusing and uncertain (unclear)
Although there is no specific test for capacity, the Mental Capacity Act 2005 suggests the following principles when assessing this:
- There is a presumption of capacity – a person is presumed to hold capacity unless lack of capacity can be shown
- Even if a person has made an unwise decision, it does not mean they lack capacity (Social Care Institute for Excellence, 2022)
Substituted decision making is a legal concept that allows someone to make decisions on behalf of and individual (PoA for people who still have capacity!). The 3 main examples of this are:
- Power of Attorney
- Mental Capacity Act 2005
- Deputyship
The two main pieces of legislation in relation to PoAs are:
- Powers of Attorney Act 1971
- Mental Capacity Act 2005
The 2 parties in an PoA are the donor (giver) and done (recipient/attorney). A PoA does not always have to be used when the donor is incapacitated!. This gives the done the power to:
- Sign documents
- Handle the donor’s financial affairs
- Make purchases on the donor’s behalf
- Dispose of the donor’s property
Someone may enforce an ordinary PoA for the following reasons:
- Someone who is travelling for extended periods of time and needs someone to take care of their affairs
- Someone in poor health may delegate these tasks whilst they are getting better
- Someone may delegate responsibilities simply because they do not want to deal with them
PoA can only be given whilst the donor has mental capacity, and falls away in line with any time frame mentioned or when the donor loses capacity. PoA also automatically revokes if the donor:
- Dies
- Revokes the PoA
- Becomes bankrupt
PoA will run out when capacity is lost, which is contradictory as this is the point a PoA is most needed! To combat this, there are 2 types of specialist PoA that can be applied for which makes this easier:
- Enduring PoA
- Lasting PoA
EPA was introduced in xxx as a result of the xxx Act 1985. This was designed to run even when the donor has xxx
March 1986
Enduring Powers of Attorney
lost mental capacity
An EPA can be used xxx the donor becomes incapable, and once the donor has xxx capacity, the EPA must be registered with the xxx
before
lost
Office of the Public Guardian (OPG).
EPA was replaced by xxx in the xxx, and no new EPAs were arranged after xxx. Where an EPA was written before this date, the power continues as normal.
Lasting Power of Attorney (LPA)
Mental Capacity Act 2005
1 October 2007
LPAs can be arranged in 2 forms:
- Health and welfare – donor can appoint one or more people to make decisions about health and welfare
- Property and financial affairs – appoint one or more people to make decisions about property and finances
Health and welfare provisions were not covered by xxx
EPAs
LPA for xxx can be used both whilst the donor has capacity and whilst they lack capacity, whereas the xxx part in an LPA can only be used after capacity has been lost.
property and finances
health
Whereas an xxx did not have to be registered until donor lost capacity and was valid from the outset, xxx must be registered before donor loses capacity with OPG.
EPA
LPA
Both types of attorneys allow the donee to make gifts in line with the donors previous gifts, any gifts bigger than usual would usually require xxx before happening.
court approval
The Mental Capacity Act 2005 came into force in xxx and applies in England and Wales. It covers various areas in relation to the subject, including the assessment of a person’s capacity through to actions by carers and people working with those who have lost capacity.
April 2007
Key features of the Mental Capacity Act 2005 are:
- Assessing capacity - the Act states that “a person lacks mental capacity in relation to a matter if at the material time they are unable to make a decision in relation to the matter because of an impairment of, or a disturbance in, the functioning of the mind or brain”
- Best interests – Act provides a non-exhaustive checklist for people to use when deciding what is in their best interests
- Actions in connection with care or treatment – Act offers statutory protection from liability to people performing acts to people with no capacity. This essentially means they can perform the acts by law if proved in the best interests of the incapacitated.
- Advance decisions to refuse treatment – Act enables donors to refuse treatment in advance of losing capacity
The Mental Capacity Act 2005 created important safeguards (bodies and processes):
- Court of Protection
- Public Guardian
- Independent Mental Capacity Advocate (IMCA)
- Research involving people who lack capacity
- New criminal offences
Court of Protection
makes decisions for people who cannot make decisions at the time it needs to be made. Declares if someone lacks capacity and can also make orders or appoint deputies.
Public Guardian
a new public official which is responsible for registering LPAs and deputies. The Public Guarding is supported in their role by the OPG.
Independent Mental Capacity Advocate (IMCA)
an IMCA is someone who steps in to make decisions for someone who can’t and has no one else to make decisions for them.
Research involving people who lack capacity (Mental Capacity Act 2005 changes)
sets out guidance for any research on people who lack capacity. It must be approved by an appropriate body and done to the correct standards, and they must ensure that the research would not have been more effective on people that still have capacity.
New criminal offences (Mental Capacity Act 2005 changes)
two new criminal offences – ill-treatment and wilful neglect towards a person who lacks capacity may lead to imprisonment for up to 5 years.
The Social Care Institute for Excellence provided explanations for each of the 5 principles under the Mental Capacity Act 2005 which are summarised as:
- A presumption of capacity – everyone should be presumed as capable until proven otherwise
- Individual’s being supported to make their own decisions – person should be given all help possible before deemed as incapable of making their own decisions
- Unwise decisions – people should not be seen as incapable after making an unwise decision
- Best intentions – anything done on behalf of someone who is incapable must be done in their best interest
- Less restrictive option – someone acting for someone else must decide if another option is less restrictive for someone
The xxx provides guidance and assistance to individuals who are appointed as deputies for people who are incapacitated
OPG
A deputy is different to an attorney as xxx
an attorney is chosen by the individual, but a deputy is given.
A deputy is typically
a close friend or relative aged 18 or over
Deputies can apply themselves but must be appointed and approved by the xxx. Where needs are complex, a xxx deputy may be appointed e.g. solicitor or suitable professional.
Court of Protection
professional
Deputies are supervised by the xxx and are subject to general supervision for the first xxx months of being a new deputy. After these xxx months, deputies who are responsible for property and affairs who are managing assets less than £xxx will move to a minimal level of supervision.
OPG
12
£21,000
The OPG only deals with arrangements in England and Wales as covered by the Act. Scotland and Northern Ireland have their own variations as follows:
Scotland
- Issues covered in the Mental Health (Care and Treatment) (Scotland) Act 2003
- Scotland have their own equivalent of the OPG
Northern Ireland
- Issues covered in the Mental Health (Amendment) (Northern Ireland) Order 2004
- The governing body in NI is the Office of Care and Protection
Before May 2018, the EU data protection legislation was the xxx, and the primary UK legislation was the xxx.
Data Protection Directive of 1995
Data Protection Act 1998
General Data Protection Regulation (GDPR) came into force xxx to update EU legislation, and each member state was required to adopt this legislation by xxx. Since then this has been the main legislation in the UK.
May 2016
25 May 2018
GDPR applies to personal data which is described as information relating to an individual that can be identified, examples of this are:
- Name
- ID Numbers
- Location data
- Online identifier
GDPR applies to xxx and xxx data collection and is overseen by the xxx.
automated
manual
information comissioner
The 7 data protection principles – these are the base points of GDPR:
- Lawfulness, fairness and transparency – data controller must declare what, why and if it will be disclosed with other parties
- Purpose limitation – data should only be collected for specified, explicit and legitimate purposes
- Data minimisation – data collected should be adequate and relevant for the purpose, but not excessive
- Accuracy – Data must be kept accurate and up to date (where necessary) and reasonable steps must be taken to correct or erase inaccurate data without delay
- Storage limitation – data which can identify individual data subjects should be kept no longer than is necessary
- Integrity and confidentiality (security) – data controllers should ensure that appropriate security measures are in place to avoid accidental loss, destruction or damage to data (password security, file encryption etc.)
- Accountability – data controller is responsible for, and must be able to demonstrate compliance with, the data protection principles
Processing data is only lawful is the data processor has a lawful basis. There are six legal bases which are:
- Consent – clear consent given
- Contract – processing is necessary for the contract between both parties, or because the individual has asked the processor to take specific steps before the contract
- Legal obligation – processing necessary to comply with the law
- Vital interests – necessary to protect someone’s life
- Public task – processing necessary for the processor to perform a task in the public interest and the task has a clear basis in the law
- Legitimate interests – processing necessary for the processor’s legitimate interests or the legitimate interests of a third party unless there is good reason to protect the individual’s personal data which overrides any interests
UK GDPR provides the following rights for individual’s:
- The right to be informed
- The right of data access
- The right to rectification
- The right to erasure
- The right to restrict processing
- The right to data portability
- The right to object
- Rights in relation to automated decision-making and profiling
