Mental Capacity Act Practitioners Forum

1. Mental Capacity ActPractitioners Forum Lasting Powers of Attorney

2. This presentation will cover: • A close look at Lasting Powers of Attorney (LPA’s) • What's different • Safeguards and benefits

3. What is an LPA? • LPA’s replace Enduring Powers of Attorney (EPA) as the way of appointing decision makers for a time when you may lack capacity • EPA’s made prior to 1st October 2007 can be used and registered at any time in the future

4. What is an LPA? • LPA’s increase the range and type of decisions you can authorise others to make on your behalf • For the first time there is the choice of allowing decisions to be made for personal welfare • Two separate types, two separate forms, cannot be combined in one document

5. Who can make an LPA? • Anyone who is 18 and over • Must have capacity to understand the purpose and effect • Individuals only – not couples • Can be used to replace unregistered EPA’s or sit along side them

6. Why make an LPA? • It gives the donor (maker) the choice to plan for a time when they lack capacity to make decisions for themselves • For the first time you can appoint a decision maker of your choice relating to personal welfare matters • Important new safeguards have been introduced • Attorneys (person appointed) must pay regard to the Code of Practice

7. Best Interests • Attorneys are governed by the principles of the Mental Capacity Act (MCA) • Before any decision an attorney must first be satisfied that it is in the donors best interests • Attorneys must have regard to the Code of Practice

8. LPA’s – Property & Affairs • An attorney can make any decision the donor would make in respect of finances and property • The decisions can be subject to restrictions and conditions imposed by the donor within the LPA • Generally attorneys will: • Pay regular bills • Manage income and expenditure • Buy or sell property • Manage investments or even carry on a business

9. LPA’s – Personal Welfare • Attorneys for personal welfare may make decisions that you would normally make about your welfare • Where you live and with whom • Accessing your medical records • Deciding what you wear • Deciding what you eat.

10. LPA’s – Personal Welfare • Consent to or refuse to consent to: • Life sustaining treatment • Artificial nutrition or hydration • Any decision a doctor considers necessary to sustain life • The LPA must specify the donors intentions and instructions

12. Back Door Euthanasia? • NO. Section 62 of the Act emphasises that nothing done in the Act effects laws relating to murder, manslaughter or section 2 of the Suicide Act 1961 • Section 4(5) of the Act states that no one can make a decision about life sustaining treatment if they are motivated by a desire to bring about death

13. How are attorneys appointed? • A single attorney • More than one attorney – to act • Together • Together and independently • Together in respect of some matters and together and independently in respect of others • Replacement attorney

14. LPA instrument (the form) • Prescribed information – the donor and attorney(s) will need to read the prescribed information and confirm they have, it can be read to someone unable to read/see. • Part A – Donors statement • Part B – Certificate providers statement • Part C – Attorneys statement

15. Notifiable Parties • The donor includes in Part A, up to 5 named parties who are to be informed at the point of registration • If the donor decides not to inform any named parties, there must be two separate certificate providers.

16. Certification Process • The certificate provider confirms that the donors understanding of the LPA • Two categories of certificate provider • At least one certificate provider required – two needed where no notifiable persons have been named.

18. Two types of certificate provider • Category A – Knowledge Certification • Have to have known donor personally over the past two years • Category B – Skills Certification • Registered healthcare provider • Barrister, solicitor or advocate • Registered social worker • None of the above but consider themselves to have relevant professional skills and expertise to be a certificate provider

20. Registration Process - 1 • Registration costs £150 • Objections on factual grounds must be made to the OPG – for example • Bankruptcy • Death of attorney • Death of donor

21. Registration Process - 2 • Objections on prescribed grounds must be made to the COP – for example • The person objecting does not believe the donor had capacity to make an LPA • The donor revoked the LPA when they had capacity • Fraud or undue pressure was used to induce the donor to make an LPA • The attorney is not acting in the donors best interests

23. Safeguards and benefits • Choice of notifiable parties • Certification process • Attorney must have regard to the Code of Practice • Restrictions and conditions can be made in the LPA • Option of replacement attorney

24. So what do I do? • Always get a copy of the LPA • It cannot be used unless it is registered (this takes 6 weeks) • Cannot be used if an objection is lodged • Remember an LPA can be registered before you need to use it

25. So what do I do? • Check a personal welfare LPA against any Advanced Decision to Refuse Medical Treatment • If advanced decision was made before the LPA, the LPA overturns it. • If advanced decision is made after an LPA, the advanced decision takes priority

26. Further Information and Forms • Office of the Public Guardian • www.opg.gov.uk • All forms available including application to waive or delay fees • Although not required by law, this is a very complex business and simple mistakes can invalidate the LPA – so independent legal advice is in your own interests

27. So what do I do? • A property and affairs LPA can be used as soon as it is registered, in other words before you lose capacity as well as afterwards • A personal welfare LPA can only be used when you lose capacity • A valid attorney is always the decision maker for LPA approved actions