www.hartbrown.co.uk distinctly better. alyson coulson partner trust & estates department
TRANSCRIPT
www.hartbrown.co.ukwww.hartbrown.co.uk
Get proper advice! This talk is for general information only.
They are general thoughts and principles and should not be relied on for your own purposes as everyone’s circumstances are different.
Before taking any action, you do need to consider taking proper independent legal advice, which will address your particular circumstances in respect of the matters discussed.
www.hartbrown.co.ukwww.hartbrown.co.uk
About Hart Brown
1. One of the largest legal practices in
Surrey
2. Founded in 1919
3. 6 offices: Woking, Cobham, Cranleigh,
Guildford, Godalming and Wimbledon
Village
4. 15 Partners – total 100 staff
www.hartbrown.co.ukwww.hartbrown.co.uk
About our Legal Departments
Commercial business
Commercial property
Residential property
Family
Dispute resolution
Trust & Estates
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
What are they?
Powers of attorney
Enduring powers of attorney
Lasting powers of attorney
.... and if you don’t make provision?
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
The Alternative
Appointment by the Court of Protection
Deputyship
Who applies?
Costs
Restrictions – acting on behalf of the Court
Accounts
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
2 Parts
Property and financial affairs
Health and welfare
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
Property and financial affairs
Buying and selling property
Operating bank accounts
Dealing with investments
Tax affairs, claiming benefits
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
Health and Welfare
Where to live and who to live with
Day to day decisions, diet, dress
Medical examination or treatment – refusing/consenting
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
Health and Welfare
Who the donor has contact with
Assessment for and provision of community services
Arrangements to facilitate dental or medical treatment
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
Health and Welfare
Complaints about the donor’s care
Whether the donor should take part in social or leisure activities, education or training
Personal correspondence and papers
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
Health and Welfare
Rights of access to personal information (e.g. medical records)
Life sustaining treatment-specific question, witness required
Advance decisions v LPAs
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
The Process
Take instructions
Draw up and sign the document
Certificate – skills or knowledge based, 1 or 2 providers
Attorneys sign
Register the LPA
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
Drawing up the document
Appointment – how many Attorneys?
Joint or joint and several? or both!
All property and affairs?
With restriction?
Dialogue boxes
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
When does it come into use?
Property and financial affairs
Health and welfare
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
Checks and balances
Choice of attorney
Certificate/s
Storage of document
Registration
The register
www.hartbrown.co.ukwww.hartbrown.co.uk
Lasting Powers of Attorney
Registration process
Notice
Application
Registration
The attorney can then assist
Role of the Court of Protection
www.hartbrown.co.ukwww.hartbrown.co.uk
Practical issues
When will you be asked to work with us as lawyers?
Assessment of mental capacity
Completion of formal forms for the Court
Acting as witnesses, expert witnesses or certificate providers
www.hartbrown.co.ukwww.hartbrown.co.uk
When might capacity assessments be required?
Making a will
Making or registering a power of attorney
Revoking a power of attorney
On application for deputyship – capacity to manage financial affairs
Various others?
www.hartbrown.co.ukwww.hartbrown.co.uk
Solicitors instructing doctors
Do not assume expertise in these matters
Quality of instructions = quality of advice
Be clear about what client wishes to do
Inform and explain (in clear and simple terms) the legal test to be applied
Provide all relevant information
Confirm the standard of proof
Reminder that challenge is possible
www.hartbrown.co.ukwww.hartbrown.co.uk
Doctors receiving instructions Decline if insufficient experience
Request more information if required
Details of test of capacity as required by law
Why opinion is sought and effect on your patient
Details of the patient’s property, affairs and family background if relevant to test
Is the matter likely to be disputed?
www.hartbrown.co.ukwww.hartbrown.co.uk
Doctors receiving instructions
Be specific – reports lacking details, diagnosis and reasons will be of little value
Your report could significantly affect the patient’s autonomy to make decisions
Your report could allow the patient or a third party to carry on doing something prejudicial to the patient
You may need to support your report in Court.
www.hartbrown.co.ukwww.hartbrown.co.uk
Witnessing documentsWhy do we ask – the “golden rule”
Kenward vs Adams (1975)
Where a will has been drawn up for an elderly
person or someone who is seriously ill, it
should be witnessed or approved by a medical
practitioner.
It is assumed that the doctor will have made an
assessment of capacity.
www.hartbrown.co.ukwww.hartbrown.co.uk
To assist or not with a request to assess capacity?
What is the policy of your surgery?
Take advice from your professional body
Do you feel confident to assist?
www.hartbrown.co.ukwww.hartbrown.co.uk
Who should assess capacity? The individual who wishes to make a decision on behalf of an incapacitated person is responsible for assessing his or her capacity.Where consent to medical treatment is required, the health professional proposing the treatment needs to decide whether the patient has the capacity to consent. The reasons why capacity is in doubt should be recorded in the medical record, as should details of the assessment process and its findings. The more serious the decision, the more formal the assessment of capacity is likely to be, and, where appropriate, it might be advisable to refer to a psychiatrist or psychologist for a second opinion.
BMA Guidance
www.hartbrown.co.ukwww.hartbrown.co.uk
How do I assess capacity?
The test is functional - focusing on a decision making process
Does the person have “an impairment of, or a disturbance in the functioning of, the mind or brain” which may affect their ability to make the decision in question?
www.hartbrown.co.ukwww.hartbrown.co.uk
How do I assess capacity?
Under the MCA, a person is regarded as being unable to make a decision if, at the time the decision needs to be made, he or she is unable:
to understand the information relevant to the decision
to retain the information relevant to the decision to use or weigh the information; or to communicate the decision (by any means).
Where an individual fails one or more parts ofthis test, then they do not have the relevantcapacity and the entire test is failed.
www.hartbrown.co.ukwww.hartbrown.co.uk
How do I assess capacity? Consult family and friends if appropriate for
background information.
Don’t discriminate or assume based on age, appearance, their condition or behaviour
Accept that capacity may fluctuate and that advice or assistance may be required from others more experienced or qualified.
www.hartbrown.co.ukwww.hartbrown.co.uk
To assist or not?Only do it if….
• You have formally assessed capacity as per your professional guidelines.
• You are satisfied that you can make a decision about capacity made on reasonable belief backed by objective reasons.
ALWAYS
• Make a formal record
www.hartbrown.co.ukwww.hartbrown.co.uk
Assessment of capacity in treatment decisions
When you need to make your own assessment of a patient’s capacity to receive treatment.
What do you need to bear in mind?
Is the appointment of an Independent Mental Capacity Advocate (IMCA) required?
www.hartbrown.co.ukwww.hartbrown.co.uk
What are the basic principles of the Act?
Presumption that there is capacity. Proving otherwise falls upon the challenger.
Maximise decision making capacity.
Freedom to make unwise decisions
BEST INTERESTS
Is there a less restrictive alternative?
www.hartbrown.co.ukwww.hartbrown.co.uk
Best Interests – what does it mean?
All decisions taken on behalf of someone who lacks capacity must be taken in their best interests.
Not necessarily a decision based on what they would want although this must be taken into account.
Taking into consideration all relevant factors, the most objective test possible.
www.hartbrown.co.ukwww.hartbrown.co.uk
Best Interests – what do I take into account?
• The views of the patient as far as they are able to express them
Can it wait until capacity is restored?
Past and present wishes expressed verbally or in writing? Is there an LPA, an Advance decision?
Beliefs or values
The effect on other people if the patient would have considered this.
www.hartbrown.co.ukwww.hartbrown.co.uk
Best Interests – what do I take into account?
The views of others close to the individual – family, friends, carers.
The views of those previously nominated – attorneys or deputies.
The exception – a valid and applicable advance decision refusing medical treatment made when they had capacity.
www.hartbrown.co.ukwww.hartbrown.co.uk
IMCA
An Independent Mental Capacity Advocate.
Appropriate if you cannot obtain the views of others close to the individual suitable to help make decisions about medical treatment such as family, friends, carers.
If in serious doubt as to the best course of action to take, healthcare professionals should refer to The Court of Protection.
Certain decisions MUST always be referred to the Court – sterilisation, withdrawal of nutrition/hydration in PVS cases.