Deputyship and Lasting Powers of Attorney

Hello Welcome, everybody. Months after my mood, I'm a solicitor Onda lecturer on a very pleased to welcome you to today's by psy session through data law. Destiny Say bites I session where I'm going to be taking you through some aspects of deputy ship on also lasting power of attorney and really looking at the differences and similarities between these now, insofar as thes a concerned will be looking after the use of deputy ship and also lost in powers of attorney on. But when 1 may be used while than the other and also ill considered a different types of forms that I used on the procedure in so far as thes are concerned. Lesson start with lasting powers off attorney. Now this is where ah, power of attorney essentially is a route through which one condemned delegate decision making powers on a lasting power of attorney is essentially one which would survive two D donors. Loss of capacity. Onda. Previously, many of you remember Easter of in doing powers of attorney, which could only be used to regulate and deal with a person's financial affairs on not personal welfare decisions. But then e p. A's were replaced by LPs lasting powers of 10 years from the 1st October 2007 EPA is made by to that, of course, still exist on. Therefore, it will be some time before MPs do come to an end. Ultimately, in so far as LP is last in parts of Tony are concerned. These, then like, say, came into effect on the first of October 2007. Andy's Take two forms. This can either be personal Welfare LP A's, which, like Sadie pH did not previously allow foreign provide full. And secondly, LPs allow four days to be used for property under fair. So you got the two different types there. Onda powers could be created by anybody indoor circumstances who may wish to then have either both or both either or both in the circumstances. Okay, Now the actual forms that I use for these are set out in the various documentation available on particular de office of the Public Guardian Website will be to assist in this respect and you've got the two forms. Does the LP a one F which the property and financial affairs O pia and then days, d l p A. One hate, which the health on welfare LPs. They got a two different ones there on a lot of information. So an ink LPs and E P. A's and doing parts of Tony's contained within the Mental Capacity Act off 2005. That also principally provides a lot of information as far as the position with deputy ship as well that we look at shortly now because somebody who's having a L. P A made for them would need to ensure that the point at which it's been made for them, they have capacity. Ah pursuant to the mental capacity from 2005. It's therefore very important for them to give consideration as to what aspects off the L. P. A. They would wish to be binding upon. The attorney is the person who is going to be exercising called authority on their behalf in terms of dealing with their property and financial affairs or their health and welfare. So it's very important for the d don't own door circumstances to give thought to is what aspects do they wish to be binding upon the attorneys and those aspects which day simply which to be guidance on. That's where when you're looking at the LPGA forms. Those of you have completely you'll see that there's a difference between pressure and sees which you consume stipulating the LP a forms which are merely guidance on and also instructions which are going to be binding upon the attorneys. Okay, now what would happen is D L p. A. Forms would be completed at so like say, either the LP, a wanted for property and financial affairs or GOP a one age doors would need to be completed. One would need to then provide details off the attorneys that would wish to act for them on and to ensure that there is an extra layer of protection on for the benefit off the donor, particularly if it is found that they may have been subjected to do us on do influence by date, the attorneys or somebody else. There is an extra layer of protection in that when under point at which the LP aced to be registered and he's in the process of being registered, it's possible to send required notice to be sent in advance, using the form LP three to a personal persons who have been identified just so that they can really satisfy Theo the RPG that in fact, there is no us onto your inference at that stage. So this is where, uh, the, uh, a person here is notified on your persons according fact respondent to actually raise objections if needs be in their various objections, that conveys normally they will be given three weeks within which to raise any objection from one day received the notice. It's a lesson. Look at the position with DLP. A so like say one would need to consider than appointing attorneys on as to who the attorneys could be. It is possible to have more than one attorney on that. This could be particularly relevant where, say, one is looking to appoint a property and affairs. Now PF prepared property and affairs R P A and say there is likely to be some conflict between the matter and the paternal family, for example. So it may be that somebody picks a family member from both sides of family for examples that may be possible. It is, of course, possible for solicitors to be attorneys as well, and it very much depends really upon the extent of work that would need to be done under circumstances and whether it's necessary for a lawyer to be instructed. Indoor circumstances. But of course it's possible and may well be necessary. A swell that's off example. Ah, a lot would depend upon how the donor and anticipates to power to be used in that regard. So if the property and affairs L. P. A. Is going to require a fair bit of practical aspects, such as maybe dealing with bank accounts, signing of checks, paying your bills, then it may be that it's appropriate to have a lawyer if needs be. But a lot depends practically on how close the parties are, too, that in practice, you do find that in more cases than not at the attorneys will be members of the family or people who the person is relying upon to be able to carry out those practical tasks for them, as opposed to lawyers. Been instructed regularly, not joint appointments are such that it's possible to have a safeguard against abuse in case of joint appointments by limiting what types of transactions a person can make on their own, whether it needs to be a joint decisions or joint in sir for in those circumstances, so that can also be used. So if you are going to be appointing joint attorneys than then, the question is, would you wish for the attorneys than to make decisions on their own? Or is it going to be joined to a several or joint on some aspects and several under this, for example, so that those types of aspects which need to be considered? And then there's the whole issue about powers and limits and conditions on the actual LP A. For what types of aspects will let me have to make decisions on what they cannot nuts? Where, as I mentioned, it's very important to be clear about whether one which wishes to have preferences or conditions touch to the provisions of the L. P. A. There. Okay, so when it comes to the LP itself performs their mentioned, we need to be completed. Only adults aged 18 over can have a valid LP a providing for them on that they can only make this if day at the time at which it's been put together. For them, they have capacity on day four. For Ethiopia to be valid, it must be written Hindi prescribed stashed reformer. It must include information about the nature and effect of the LP. A Andi donor must sign a statement where they are saying that they have read to prescribed information or somebody has read to them and that they want GOP to take effect okay and that the document must have name people who should be told about an application registered LP if they wish to have the extra layoff protection. But, like say, it's not a blinkered to do that. But to these certainly recommended on the attorneys must inside a statement stating that they have read to prescribed information on that they understand their duties in particular duty to act in the best interests off the donors. That's very important. The document also needs to include a certificate complete by an independent third party, who must confirm that, in their opinion, the donor does understand the purpose of the O. P. A. On that they have not been subjected fraud on new influence on that her day. They want the document to take effect, okay, and so far is the position with attorneys are concerned. These must be at least 18 years off age on for the property on the face. LPD attorney could either be an individual's longest. They're not bankrupt or subject to any financial orders in that regard, and it could be a trust corporation in that regard. Okay, so that's possible. As I mentioned, Section 10 of the emcee allows the dawn. It will point to a mortar knees and also specify whether they wish to point to be joined joint and several or joint in some respects and joint in several. You know, there's solved as possible as well. In the circumstances, the registration side of the LP a such tight must be registered with the Office of the Public Guardian before it can be used on unregistered LP. A. Won't give the attorneys any authority to make decisions on a donor. Can register the O. P. A. Whilst they're still capable or the attorney could register the L. P. A. Attorney time. There are, of course, advances in registering the opiates soon after the donors made it because if there are queries that are being raised, but your PG, then at least I was gonna be dealt with waas the donor Steelers capacity, as opposed to leaving it until the point at which the donor has lost capacity. Because then it will be much more difficult, of course, to deal with Cuevas, given that deep person may have done lost capacity, so it could be that some issues there and just going further in so far as the position president Welfare pios are concerned Eastern can be you city with personal welfare decisions such as health care, medical treatment, for example, decisions such as, for example, day to day care issues over their diet over their dress. Who they have contact with. Consenting, refusing medical intervention, for example, access to personal information doors, Types of aspects case. And consider the thinking behind that. Okay, But it's very important that before one makes a decision about personal welfare, L. P. A. T attorney must be sure that the LP has been registered with the RPG. The donor must lack capacity to make that decision, or the attorney believes that the donor lacks capacity under must ensure that any decision they are making must be in the best interest off. The donor indoor circumstances case is somewhat keep aspects there to bear in mind. Now linked with that like a Sadie property and affairs. O. P. A. Is such that sometimes you may find that a donor physically is unable, maybe to a lot of the tires they used to on their property aspect so they can then making popped in affairs r P A. That could then be registered even wants. T donor still has capacity, and it can even take effect and be used. Nasty donor still has capacity because it may be used for practical circumstances there. So you consider they're thinking on the use of it there. In that regard, the property and affairs R P A. Could be used to deal with a number of issues such as, for example, buying and selling, dealing with bank accounts, access to information dealing with, say, benefits, for example, dealing with pain bills, mortgage ease, other aspects, investments, those types of aspects as well rental income. All those aspects which relate to a person's business of face, for example. So it could be very extensive in that regard. Okay, now harden, our LP is different to to position with the deputy ship well, insofar as deputy ship is concerned that this is then going to be used in situations where the person hasn't made in L P A. But where decisions need to be made us to that person's like the property affairs or their personal welfare decisions. And with Deputy Ship, you'll find that it's listers often will account for probably about 15 to 20% of all deputies. So often lawyers will be appointed as deputies on. But it is possible for joint deputies. Talks will be appointed in that regard, although this does very depending upon the particular circumstances. And if Deputy Ship is such that noticed, I needs to be given Body Applicant all the person's relatives who have a degree of relationship Onda at this, various forms that would need to be applied for in order to apply for deputy ships when he's when he's that nest. So, therefore, to apply for Deputy ship. While this is going to be in situations where you'll find that I am the person lacks capacity to make a decision on, it may be that the person to have an l. P A. Prepared for them a tall order one they did his defective and effective for some reason on decisions are now need to be make made in relation to that person's property and affairs and possibly health and welfare decisions. So Deputy ship tends to be where the person I did have an LP a order did. But it's ineffective. Andi. Therefore, you might find that decisions need to be made and Deputy ship could be used to secure a single order or sometimes an ongoing authority to continue to make her further decisions. That this is where Section 19 of the Mental Capacity Act provides that deputy appointed by the court must be an individual who has reached the age of 18 on a relationship option affairs. It must be an individual who has reached 18 or trust corporation on da Person may not be appointed a deputy without their consent. The court can, of course, appoint deputies which act jointly or jointly and severally or jointly in respect to some matters and several in the respect of others. So you concede this is very similar to the position without pH, insofar as the position where people can appoint attorneys either jointly acting or joint and several or joint in some respects and several in respect of others, so should a deputy even be appointed tor nuts often one of the questions that he's asked, and this is where Section 16 subsection four GMC A is particularly relevant here, which asked a question that when deciding whether to appoint a deputy or not, the court has to ask themselves whether it's in the person's best interest. To do so, the court must have regard the fact that a decision is to be preferred decision by the court is to be preferred to the point of a deputy to make a decision on that. The powers conferred on a deputy should be limited in scope. Innovation as are reasonable in the circumstances, so only when necessary, not a procedure for appointing deputies is set out within part nine of the core protections of 2017 and has also practice direction. 98 which accompanies that the forms don't don't are going to be completed to apply for Deputy ship are going to be. These has firmed form of the application form Court cop one. So that has to be completed and as a supporting information which had a cop, one A for property and affairs deputy ship. And then there's D Cop one B, which is for welfare Deputy ship on, and it needs to be an assessment of capacity using form cop. Three. So this is where that cop three days to confirm that the person concerned does does like capacity. And then they also needs to be the deputies declaration Cop four form, which is filled in together with the fee andan menders, the personal undertakers. A 17 personal undertakings which D Deputy would need to provide in that regard. So you can see Deputy Ship is is certainly very significant, insofar as looking at the position with allowing decisions to be made in situations where LPs may not have been put together. If there were, they are ineffective. Now when you apply for deputy ship, of course, as I mentioned, notice would need to be given to certain respondents and also people who would have an interest. It may be that the application for Deputy ship is in fact contested, which does happen sometimes, and that's where they could be potentially hearings. They're not enlisted to determine whether or not to allow the deputy shipped to actually even take place. It's it's not that common to have deputy ship orders for health and welfare decisions because of court of protection will often take the view that such decisions should normally be left with the health care professionals in that regard, as opposed to in a blink a person to specifically apply for that decision to be made by them for determination by the actual deputy was property and affairs deputy ship are more common Onda. Therefore, they will be made more commonly in these situations now with deep position with deputy ships. Sometimes you may find that there are disputes between family members on the other parties Air Studio, extent of the Deputy ship. And that's where it is permissible to bring the matter back before the quarter protection to seek guidance and determination as to whether or not the deputy should be in a broom to make particular decisions on determinations in certain situations. You've got somebody aspects there as well. Okay, so you can see Deputy Shipping lost his last impacts of Tony concede there is quite a distinction between these and LP is therefore, of course would have required, uh, a concerted decision by the donor to make such a document to be effective was deputy ship would be applied for at the point at which the person has lost capacity and decisions that have been made, like so as to are the property and affairs aspects, or indeed in relation to welfare. Okay, I hope that that's been a useful session for you cannot thank you very much indeed for listing Andi. Thank you. Once again, Andi, I speak to you next time. Thank you very much. Bye for now.