Mental Capacity Act Practitioners Forum

1. Mental Capacity ActPractitioners Forum Amendments to The Court of Protection made in 2010

2. This presentation will cover: • Security Bond Discovery Period • Benefits that qualify for exemption of fees • Investigating EPA Attorneys • Lost EPA papers • Notice of Intention to apply for registration of an EPA • Amendments still being considered

3. What is the role of the C.O.P? • Generally the court will make decisions in disputed or complex cases: • Whether someone has the capacity to make decisions • Whether an act done or proposed is in someone's best interests • Whether Lasting Powers of Attorney or Advanced Decisions are valid • Whether an attorney or deputy is acting in someone's best interests • Whether undue pressure or force was used to appoint an attorney

4. What power does the C.O.P. have? • The Court has the same powers, rights and privileges and authority as the High Court • The Court will either make the decision itself or appoint a deputy to make it • The Court must make its own decisions where there is no EPA or LPA and a financial decision must be made • The Court must make its own decision if it is necessary to make a will or amend an existing will • It is a Superior Court of Record and is able to set precedents that must be followed in future cases • It is made up of numerous departments each one having a different role

5. The Discovery Period • When a deputy is appointed by the Court of Protection for financial Affairs, they are required to take out insurance (usually with HSBC) to ensure the clients assets are protected against fraud or negligent loss. • The amount of the bond is set by the Court of Protection • Ordinarily when the person covered by the deputyship dies or recovers, the bond stays in place for 7 years (although no further premiums are taken) • During this period the client or their representative can make claims for fraud.

6. The Discovery Period • New Legislation now requires that the bond stays in place for 7 years if the client recovers or the deputy changes • New Legislation now requires that the bond stays in place for 2 years if the client dies • WHY? • 7 years increases insurance costs considerably • There has only been one case when a bond was called in 2 years after the clients death M(2009) WTLR 1791

7. WHY? • It will open up other companies who may be willing to provide bonds • It will prevent professional deputies reaching their “bond liability” ceiling • Remember this only applies to Court appointed Deputies NOT attorneys appointed by the person themselves

8. Exemption from paying fees The Court reviewed the types of benefits that should entitle a person from paying COP fees. • They REJECTED the application to include: • incapacity benefit • Disability Living Allowance • Independent Living Funds • Family members of the severely learning disabled • Employment and Support Allowance (contribution based) • Job Seeker Allowance (contribution based)

9. Exemption from paying fees The Court however said the following benefits would qualify for exemption from COP fees providing the person had not received more than £16,000 in damages: • Income Support • Income based Employment and Support Allowance • Income based Job Seekers Allowance • A combination of Working Tax Credit with either Child Tax Allowance, Disability Element, Severe Disability Element • State Pension Guarantee Credit • Housing/Council Tax Benefit (not 25% single occupancy deduction)

10. Investigating EPA Attorneys • The Public Guardian could only investigate complaints about registered EPA Attorneys on their own, in other words they could not include other people in that investigation • Now the Public Guardian will jointly investigate complaints with parties such as Local Authorities • This makes EPA investigations the same as LPA investigations.

11. Certified Copies of EPA Forms • In the past attorneys were in the habit of sending certified copies of forms to be registered, and keeping hold of the originals. These applications were automatically rejected • It will now be made clear that certified copies can only be sent by the applicant if s/he verifies that the original has been lost or destroyed.

12. Unresolved Objection • The Court has given no guidance on the following problem stating that changing the wording on the form gives sufficient guidance to the donor that lost forms should be redrawn and destroyed forms should be revoked: What background checks will they do before they accept a certified copy and the explanation that the attorney is really what s/he claims to be, and the donor having destroyed or lost the original, having now lost capacity, is not having an attorney s/he does not want?

13. Notice of Intention to apply for registration of an EPA • When an attorney wishes to register an EPA, s/he must send a “notice of intention to apply” form to the Public Guardian and those people named as verifiers, this gives those people the chance to object. • In the case of joint or several attorneys, only one has to send in the form and need identify themselves as the party wishing to register the EPA. • If there is more than one attorney named, the others do not need to identify themselves to the verifiers

14. Notice of Intention to apply for registration of an EPA • Now when applying to register a joint or several EPA, the applicant must provide details of all the attorneys named in the EPA.

15. Currently Under Consideration • The Court is still deciding about some further amendments: • Optional checking service for LPA’s to ensure they are not rejected • Increasing supervision levels for LPA Attorneys • Offering fee reductions for registering more than one LPA i.e. both health and finance • Stopping using registered post to liaise with applicants