Hello and welcome everybody very pleased to welcome you to today's session through data law. My name's Safta Mahmoud. This study session two of the course on giving you an introduction to lasting power of attorney applications. Deputy Ship applications and also looking at other applications to the Court of protection. So like I said, this is session two of three. Uh and as you know, this is an area where I'm spending some time going through with you. The use of the Court of Protection which as I mentioned in the first session has increased significantly over the years. So we're looking at Deputy Ship Applications LP A Applications applications for say, registering of advanced directives, uh statutory will Applications applications, which I went through with you last time. Okay. We're looking at some of the paperwork as well Insofar as this is concerned. And we're looking at the laws of August 2022. So last time I spoke to you about LPS both in terms of property and financial affairs and also welfare and I'll be going through those in more detail with you today. I also spoke to you about Deputy Ship and I'll be going through that with you in more detail today in terms of applications that are made for Deputy ship to the Court of Protection. So I've been taking you through that uh and in the next session I'll be spending time going through with you in terms of matters related to strategy will some case law, making gifts and also advanced directives insofar as that's concerned. And the previous session you remember I spent some time going through the dolls, the deprivation of liberty safeguards. And we also went through some significant case law insofar as uh the developments in the court protection. So I hope that's been useful for you so far. So today's session. And what I'm going to do is spending time with you first and foremost going through powers of attorney. So LPS will be going through the L. P. A. Process and what this is and how it works in practice. And then we'll also be looking at deputy ship applications. So you remember the last session, I did go through doors with your deprivation of Liberty safeguards where you've got the section 21 21 a procedure as I mentioned, the authorization and then also the streamlined procedure which is sometimes we say that may be sought by family members. For example, in terms of then uh seeking authorization for deprivation of liberty, say in the family home, for example, which may be computable to the state in the sense that for example, the local authority may be giving recommendations to the family in those cases. So we looked at some of those aspects you remember and those were often involved. Therefore matters going to court. There may be challenges to the authorization that maybe the os involved as I mentioned and discussed with you last time. It's another part of the area of the M. C. A. Which sometimes but not always will be contested is matters related to LPS and many LPS that are registered will go through uncontested but some may be challenged. Uh This is where there may be challenges in terms of whether they should be registered or not. We'll look at the position of consultation. Also, there may well be cases where even if an L. P. A. Has been registered with the RPG, one may apply to satisfied on the basis that the donor may not have had capacity at the material time or the attorney is inappropriate or not acting in the best interests of peace. So there could be those kind of challenges. You remember in the session last time I spent a fair bit of time with you going through the key principles of the M. C. A. The principles of one is assumed to have capacity. One has to ensure that or necessary practical safeguards are given to enable P to make a decision uh to ensure that we do not assume that they are unable to make, that. We are not to assume that they don't have capacity just because they make an unwise decision. We have to act in their Best interests. Using the principles on the section 40 actor then whatever step we do take has to be in accordance with their, with the least restrictive principle, we looked at uh determining capacity in terms of the diagnostic and the functional test. Now, in terms of LPS then lasting power of attorney. These then came into effect on the first of october 2007. Okay, so from that date or new applications took the form of LPS as opposed to what we previously had in terms of E. P. A. S enduring powers of attorney. So from the first of october 2000 and seventies came into effect and they can be used for two elements for covering property and financial affairs and also personal welfare and also on the state. The enduring Power of Attorney Act 1985 which related to E. P. A. S. Was repealed. But any E. P. S that were made before the state which was signed and executed before the state remain. And therefore, even now in august 2022 some E P. A. S that were made prior to the repealing of the enduring power of Attorney at 1985 do still remain because of course those persons that they were made for may still have capacity for example. And therefore one has not had to rely upon the E. P. A. At this stage. But as you can imagine, eventually E. P. A. S will be completely phased out and then obviously it will only be LPS which will be in place. So like I say, the mental capacity Act and replace DPS with the L. P. A. Lasting power of Attorney and the act increased a range of different types of decisions that people could make because previously with the E. P. A. S you could only use those to deal with financial matters. You couldn't use them to deal with health and welfare decisions. Okay so L. P. A. Is We're different because when they came in on one October 2007 they could cover both property and financial affairs and also indeed personal welfare decisions as well. So matters related to consent to medical treatment, for example, for people who lack capacity to make such decisions for themselves and the donor can choose one personal several to make different kinds of decisions for them which will take you through shortly. So therefore you can see that LPS do differ then from E. P. A. S in many ways. So as we just said one big difference between the L. P. A. And the E. P. A. S. Is LPS can deal with personal welfare decisions. That's the big big difference secondly LP is not effective as ordinary powers of turning until they've been registered. So you can't really use them. You can't use them as an ordinary power turning to enable somebody to really carry out all steps on behalf of P until they've been registered. So very important to ensure that they are appropriately registered with the O. P. G. D. Office of the Public Guardian as and when required and as soon as possible I would suggest although sometimes people may not apply to register straight away because there may be a question mark as to whether the donor seeks to rely upon it for example. So it could be that and they may wish to maybe carry out some changes. The L. P. A. Does include a certificate understanding regarding the donor's capacity. So what I mean by that is the certificate provider which could be the lawyer will then need to confirm that the as far as they can tell And from from the assessment of the circumstances P did have capacity at the material time at which they signed the document. The donor can apply for registration themselves. In in some cases where they haven't yet lost capacity or the donor may apply, sorry the attorney may apply for registration or some other person. There is this additional safeguard as I mentioned in the previous session. The CIA brought in a lot of additional safeguards. And one safeguard that has been brought in when when LPS came in is the ability to be up to notify persons in the prescribed class at the point at which the L. P. A. Is being registered. So that's a very useful uh safeguard. So that for example the donor may then specify to say look when uh the L. P. A. Is being registered. I do want uh the certain people then to be notified of the intention to actually register the L. P. A. So that they could then maybe raise objections if need be and I'll come back to that a bit later about how that works in practice and the L. P. A. The health and welfare can only be used to make decisions uh when that the donor lacks capacity to make themselves so that you're only going to be able to rely upon at the point at which they have lost capacity. Whereas the L. P. A. For property and financial affairs can in fact be used even whilst the person has capacity. And I'll take you through some of those examples as well. So in terms of applying for these standards prescribed forms, these became available some years ago they were updated on the first of july 2015. So there's the L. P. A. One F. Which covers property and financial affairs and there's also the L. P. A. One H. Which covers the health and welfare. So there's two different forms which obviously going to have to use and as guidance for completing these on the office of the Public Guardian website. Now often you'll find that clients will probably want both done they want their property and financial affairs and their health and welfare L. P. A. Done. It is possible to do three. And what I mean by that is sometimes people may say to you look I want to property and financial affairs LPS. I E I want one that deals with my business property. So I want one LP A dealing with that and I want another one that deals with my personal property. So you got to but obviously covering different types of properties. And then you've got a third one of course which covers the health and welfare. So you may bear that in mind as well. So what's the position then with the donor? Well the person who's having this document done for them then is of course a donor. Okay so we've got that. And insofar as uh the donor is concerned it's somebody who's got to be you've got to be aged over. So just like you've got with wheels that are put together as you know in the majority of cases a person to have a will drawn up for them. They've got to be agent over. And of course a donut. The point at which the L. P. A. Has been executed by them must have capacity mental capacity to then be able to understand and understand what this document is and what the purpose of it is. In terms of who they appoint to be attorneys they can elect just one person if they want or more than one person because of the risk that say the attorney may not wish to act at the point at which the donor wants them to or loses capacity or the attorney may not be appropriate or may die or be unable to act. Then it's best to appoint a second or third person as well. So this is where often you find on the under form itself, you can make provisions for up to four attorneys and then you can even put replacement attorneys on that as well. And sometimes it's beneficial to do that. So at least you've got substitution provisions. Should you need to rely upon them going forward. If it's the case that one has got more than one attorney that they are pointing and this is where you're going to need to have a discussion with your client as to whether they wish to appoint that attorney jointly or what's called joint in severally or jointly for some matters and joining in severally for others. Now, what do we mean by this? Well basically if you point say to attorneys for the donor then they are both going to have to therefore make those decisions jointly. So if it's a L. P. A. For financial affairs and they are putting down say their son and daughter to be their attorney, then they are both jointly going to have to be making all those decisions if that's what you put down, which in practice may not always be that straightforward. If if say the daughter lives say many miles away from the sun and then getting the two of them together practically may not be as easy. If you can imagine when they have to be making those joint joint decisions for say transfer property or otherwise, Sometimes you can do what's called joint and several. So you can take that box which basically is they can either act jointly or they can act independently? Severally as well. So that's an option. But more commonly what you find in many LPS is it's going to be joint for some matters and joint and several others. So maybe that's joint and several for transactions up to say £5,000 for example. So for transactions of up to £5,000 it may be joint in several So that they can either together or separately deal with those transactions. But if it's more than say 5000 then that's to be done jointly. So that tends to be fairly common in some areas. Alright, so it's important to bear that in mind in terms of choice of attorney. Well, as you can imagine clearly this is going to be a very important discussion with the donor and therefore they need to obviously pick somebody who they can rely upon who they trust, who they know is going to be there for them. Uh You should have had that discussion with her about the benefits of having more than one person appointed as you said. And this is where family interests can be an issue. So they can sometimes understandably the anxiety on the part of say the elderly client about offending the family. So if for example the client, he is thinking of putting say somebody down on the paternal side of the family as opposed to maternal, then you can imagine, you know, sometimes that could lead to problems or vice versa. So have that discussion with them. Who are they putting forward, why are they putting that forward? That person forward? It may be that sometimes they pick a family member from the one side and then from the other as well to avoid maybe conflict. But ultimately as you know it's their decision and we need to accord with their wishes in that regard. Now one of the other things then to bear in mind is we need to ask ourselves when does the L. P. A. Actually come into effect? And it is different for each type of L. P. A. So if it's the L. P. One F. Property and financial affairs this can be used as an ordinary power attorney as long as it's been registered. Alright that's an important thing. It's not going to be operational until it's been registered with the L. P. G. But it can be used even in circumstances where the donor still has capacity and you may think well what's the point? But it could be in this situation let's say the donor runs a business and say their business is such that they have to travel around the country a fair bit and say they've had a had say an injury a car accident and say they are you know say a wheelchair for example it may not be understandably as easy for them to travel as as as what it was previously. And that's where say because of the nature of their injury, their condition, medical appointments and so forth. It may not be as easy for them to travel the way they used to. So that's where they may make an L. P. A. One F. E. For property and financial affairs. They may want it registered as quickly as and therefore they may, they want their attorneys to act on their behalf in carrying out the steps under the L. P. A. Even though uh donor has capacity. So what we're effectively doing is they are directing them that the attorney or attorneys to act on their behalf under the L. P. A. And therefore being used as an ordinary power of attorney on the basis it's been registered. So that's where I would suggest. It's very very helpful to have these LPS done where somebody can maybe in a situation where they are physically unable to carry out the various steps under the L. P. A. Themselves because of say a disability or otherwise. But in so far as the L. P. One H. Is concerned, the health and welfare one that cannot be used while Sedona has capacity. So that will only be able capable of being utilized once they have lost capacity uh mental capacity. So bear that in mind. That's important. Now the other thing to watch with these applications for LPS is we need to understand the difference between preferences and instructions and insofar as preferences are concerned. These this is basically guidance which has then been provided by the donor. 40 attorneys. So you're setting out what they would prefer the attorney to do on their behalf under the auspices of the L. P. A. Where the instructions of those matters which are then going to be binding upon the attorney and therefore which is prescriptive and therefore which they are expected to carry out on behalf of the donor in those circumstances. So we do need to understand, you know which ones are preferences and which ones are instructions. And this is one of the reasons why I would suggest that when you are putting together the L. P. A. This is one of the reasons why you need to have a discussion with your client about how quickly they would wish for this to be registered. And the benefits of registering early is that by doing so and lodging? This would be O. P. G. If they come back to you and raise a query as to whether and why you put something down as a preference as opposed to a condition. Uh and therefore an expectation that may query that would you at least you can then query that with your client obviously before they lose capacity. So that's the benefit of registering sooner rather than later. So preferences, some examples of for example where the donor would like to live. So it may be that they give a preference, but that wouldn't be binding upon the uh the donor because of course, it may be the case that even though they are saying that they would prefer to live in their family home, it may not be possible for them going forward because they may find that financially they're no longer able to continue to live in the family home. They may I have to go into a nursing home, for example, and that's where that decision would then need to be made based on what's in their best interests. But nonetheless, they've expressed a preference who they would like the attorneys to consult in the relationship decision making. So, again, this is something that they cannot be prescriptive on, but they can give a preference on charging clause for professional attorneys, for example, they may put that in and they may put that in and sometimes you find that that may be put in as as as something that is put down as a as not just a preference, but indeed also as binding upon the attorney so that the attorneys are then entitled to charge for carrying out that work. Power to delegate investment management, discretionary fund manager, for example. All right. So, some of those aspects maybe put down as something that's been a requirement and therefore this may be put in as as a requirement for it to be binding upon them as opposed to merely being a preference requirement to keep accounts. Again, maybe an instruction in that regard requirement to submit accounts to audit by an accountant or solicitor. Again, this could be put down as an instruction requirement to take advice on specific decisions, for example, certain financial decisions for example. So there are some examples of preferences like where they wish to live, who to be consulted, but there's some of these other just mentioned, such as charging clauses power to delegate investment. These maybe put down as instructions. So it's very important and to ensure that there's discussions insofar as that's concerned. So if you are going to be said a professional attorney for example, appointing, then you may wish to seek charging clause in the opiates and obviously be in a position to be able to charge for the work done as a professional attorney. And therefore you can put test on as a, as an instruction. Now they are going to then be limits as to uh some of the aspects that the attorney can carry out, so it is possible to amend the authority in various ways or conditions on acting. Uh only relationship specified property for example, attorneys generally will be able to carry out steps insofar as making gifts under the associate attorney has got powers to make gifts, but these are limited and the powers they have are limited to providing gifts of the seasonal nature or those on say anniversaries, maybe marriages, civil partnership and religious occasions and if it's the case that you wish to give the attorney authorization to make gifts above that. And this is where say for tax purposes for example and this is where the authorization may need to then be sought from the court of protection. So that's one of the applications that sometimes may have to be made to the court of protection and I'll talk about that later on in the next session. Now one of the other things to bear in mind is when you are putting together than the the L. P. A. Uh they will then need to be the need to put the prescribed information. So a couple of things to pick up on. And firstly when you are filling in the the L. P. A. Form is very important in terms of the name obviously of the donor to make sure that their name is obviously correctly spelled and also any other names that they are known by any aliases for example because as you can imagine that the attorneys are going to be responsible for dealing with their property and financial affairs for example. And therefore they need to know what named they have their account registered under for example, so that if they have their account, their bank account registered under a particular name for example which is different to their name and say their passport, their birth certificate to. Otherwise that's very very important to make sure that this provision made for that. And this is where it's very important to put any agencies there in that regard. Obviously going to be putting details about their date of birth in that regard, details of the attorneys. As I said replacement attorneys if needs be. How do you wish the attorneys to act? Is it gonna be joint? Is it several is a joint on some several and others have you put details of replacement attorneys and also in the case of the property and financial affairs O. P. A. Do you wish the attorneys to act? Was a donor still has capacity or only one state lose capacity. Uh And then I'll talk to you about the position about people to be notified in a moment. But just before that in terms of preferences we've talked about that and instructions. One of the things then once the document has been put together is a bit about signature and this is where the people who need to sign then are going to have to be the donor, the certificate provider also the attorneys. And these documents that are going to need to be witnessed as well. So the witnesses need to sign also. So first and foremost the donor has to sign this document and they have to confirm that they are pointing the attorneys that are made developed for uh and they agreed to this information being provided to the uh the office of the public guardian so they have to sign or provide a mark if they're unable to sign their signature to confirm that that's their signature. And then the next section is what's what's known as the signature by the certificate providers. Certificate provider have to confirm that they have discussed the LP able donor and they have to confirm that they are satisfied. The certificate provider is satisfied that the donor does understand what they're doing. They're not being forced into putting this document together. And also the certificate provider has to be somebody who has known the donor personally for two years or more. Maybe a friend, a colleague for example of them a family member or they are somebody who has got relevant skills. There may be a lawyer for example maybe a health care professional maybe in a counter for example so it's a professional who's got relevant skills in that regard. And their certificate provider has to when it's only the name confirm that they are satisfied that the donor does understand what the purpose of the L. P. A. Is that no one do influence or pressure is being born upon them. Okay so very important in that regard and obviously confirmation that have known the person for tears more or they are like say somebody with relevant professional skills and then the attorney has to sign and witness as well. The attorney by signing is confirming that they will be acting in accordance with the principles in the D. M. C. A. Particularly having regard to the court of practice. Obviously acting in the best interests of P. And take into account and instructions or preferences and not to make decisions until the L. P. A. Has been registered and then they would have to get that witnessed also. So you can see that it's very important for a donor to sign first then the certificate provider and then the attorney and as for the attorneys, each of them then have designed it is replacement attorneys as well. So there's that provision and then also of course for the for the signature there and this is where the document must therefore include order prescribed information about the nature and effect of the L. P. A. So there's the requirement as I just mentioned for the donor design in that regard and then for the certificate provider and the attorneys to sign also. And attorneys must then say that they have read the information prescribed information. They are aware of their duties and particularly duty than to act and safeguard to donna's bests interests. So very very important in that regard. Now this is where we've got the provisions surrounding third parties. So as I mentioned uh once then one gets to the stage and then looking to register the attorney. There is provision on the register the L. P. A. Rather there is provision on the L. P. A. To notify third parties than at the point at which the L. P. A. Is being lodged to become registered with the RPG. And the purpose of this as I mentioned is just to provide additional safeguarding. Now, just before I come onto that were just one of the things I wanted to pick up on. And that is the L. P. A. One H. Which is the health and care decision L. P. A. There's one big difference there as I mentioned earlier and that is first and foremost uh you cannot use this until such time as the donor has lost capacity, remedy financial affairs when you can whilst they're still got capacity and therefore use it as an ordinary power of attorney. And secondly the other aspect specifically in relation to the health and welfare uh L. P. A. Is it relates to in section five. Specifically matters relating to uh life sustaining treatment. Life sustaining treatment basically is any surgery medication or otherwise which may be required to keep somebody alive. They are serious operation for example in a transplant as cancer treatment, artificial nutrition and hydration uh which is basically food or water given other than through the mouth. And this is where on the LP. A. Form you can actually indicate on there whether you are giving you the attorney authorization to give or refuse uh consent to life sustaining treatment. So you can make provision for that on the on the D. L. P. A. Form okay? Or secondly whether you are not therefore given the attorney authorization to give or consent to life sustained treatment and if you do that. And of course uh consultants, health providers will then take into account the views of the attorneys in that regard, in making decisions in that regard. Okay. So bear that in mind. Now in terms of people being notified this is where you can then let people know that the application for the LP is now being registered. And this is where the third parties will then be notified as a form they'll receive called L. P. Three and that enables them to register any objection if needs be. And there could be a number of objections that may potentially raise in these circumstances. So this is the form LP three notice that's sent in these circumstances and this will be sent to a person's obviously who have been notified and they will be sent this. So obviously gonna put their details on on the form on the L. P. A. Form in terms of names, addresses so that they can be written to in that regard. And there's a number of objections which the person's can then raise if tuition they need to do so within three weeks of being given this notice. So there's two types of objections is what's called the factual objections that they can raise. And to do that they fill in a form called LP A double oh seven. Okay. And that's where you're basically objecting about uh the factual objections that will take you through. And then there's also what's called the prescribed objections and to do that you fill in the form called the L. P. A double 06. So just going through the uh the factual objections, the kind of situations that you may have in that regard could be where it's suggested that say that donna has died and therefore why is the attorney even applying to register the attorney has died? And therefore why is this form being lodged when clearly the attorney has died? And therefore the significance of it? Or it may be that the attorney and the donor were married but now they're divorced or had a civil partnership and that civil partnership has been dissolved. And this is where the attorney seems to be lodging the application for the L. P. A. For it to be registered and therefore may not be acting in his best interest. For example. It could be that maybe suggest that the attorney doesn't have capacity or the attorney has chosen to no longer act for them would have become bankrupt for example. So that's where you got your factual objections. And then you've also got the prescribed objections. People can raises, they may argue that actually they believe that a donor doesn't have didn't have capacity when the O. P. A. Was even put together for example. Or they may have canceled. It may have gotten rid of this document or pressurized in designing for example. So you can see this is an additional safeguard which is a very significant safeguard which may well be utilized and therefore used in these circumstances. And that's why I would suggest we do need to think about the benefit of this in these types of cases and therefore why it may well be beneficial to to think about this. Although I appreciate that you do find that many clients may not seek to put anybody forward because if they're taking the time to do an L. P. A. And they're often putting down as attorneys people they obviously trust because that's the nature of it. Then then to have another document which is then sent to other people to almost confirm that they may feel is unnecessary. Now, once the LPS then put together, it's very important to deal with early registration. So this is where it could be used uh, once it's been registered, as we said, but you do need to get it registered first. Early registration can reveal any mistakes made within the form. So as I mentioned, if for example, you put something down maybe as a instruction. But actually it should be a preference. Then that's really sort of public garden and then get in touch and then you can resolve and deal with that whilst it's hoped that peace still has capacity to then take instructions on that. As we said, there are special condition considerations regarding the L. P one H two, health and welfare so that if you wish the attorney to be allowed to or not to require to uh consent or refuse life sustaining treatment and need to specifically provide for that on the D. L. P. Itself. Okay. Now the type of things that as you can imagine that the GOP. S will deal with is for example if you got the property and financial affairs you can deal with a number of things for example deciding on dealing with property affairs for peace such as buying or selling property, mortgaging, renting, dealing with paying your salaries, dealing with obviously sorting out their financial affairs. Getting accounts ready to provide two accountants. Otherwise for example physically dealing with matters relating to their property affairs. So you can you can see the issue their health and welfare decisions can be incredibly wide. They may deal with matters relating to where they live, whom they have contact with uh position relating to welfare matters over performs of medical intervention, for example, dress diet, those types of aspects. So you can see it's very wide and can be used in this regard. Now sometimes there may well be a need to check to see if somebody has even got an attorney or deputy. So this is where sometimes you may find that uh you've got somebody where they are saying hospital for example this is where the hospital or maybe a local authority are looking to see whether or not somebody even has a deputy or an attorney and this is where some really useful guidance made available by the O. P. G. There's that link there that I've mentioned, which was last updated on the 10th of june 2021. So this is where this guidance provides for the fact that local authorities, the police and the NHS staff can find out then information uh about whether or not from the RPG from their register as to whether somebody does have an L. P. A. Or an E. P. A. Or deputy acting for them. And this can be searched to find the details of those involved to see if it's been registered for example. And you can imagine this is particularly necessary where say somebody is in hospital. So you've got somebody who's coming forward, he's purporting to be the attorney. Uh and is saying that actually they do not agree to a particular form of intervention or they are insisting on a particular form of intervention. And that's where enquiries may need to be made urgent inquiries to see if in fact that there is a L. P. A. Or deputy supporter in place there. So that's where this comes into play. Okay. And a couple of other things then with L. P. A. S basically imagine for a long time these used to be done on a paper application, we're moving more as you know uh towards online. Uh And these applications can be also completed electronically. Uh And there's a consultation on modernizing lasting Power of Attorney. So this is where the Minister of Justice and the RPG have been working on this project to modernize LPS. So to increase even more safeguards for the donor in those circumstances, simply find the process for making and registering these and keeping them as affordable as as they can and should be in these circumstances. Uh And there was a government response to this consultation recently uh modernizing the opiates as of 19th of May this year 19 May 2022. So it's worth having a look at that when you get the chance and particularly the role of witnesses to the execution of the O. P. A. So there's work in progress still being had insofar as that's concerned. So worth having a look at that when you get the opportunity. Now one of the other things is about reporting a concern about an attorney Deputy or guardian. So let's say say you've got a case where say the hospital, maybe the local authorities are involved with P. Or family member otherwise are concerned about a particular attorney, deputy or Guardian in terms of the way in which they are carrying out their steps on behalf of p in those circumstances. And this is where there's this very useful guidance. I put a link there for you and there's this guidance last updated just a few weeks ago on 26 July 2022. And this is where it's possible to contact the office of the O. P. G. The Office of the Public Guardian. If you have concerns about say a registered lasting power of attorney or an E. P. A. Or deputy appointed by the cop or guardian for someone who is missing for example. So this could be where somebody is concerned about saying misuse of money issues or decisions that may not necessarily be the best interests of the person responsible for. So this could be where concerns are being raised by say the social worker for example is involved with P that the attorneys seem to be using. It appears peas money unnecessarily inappropriately and not in his or her best interests. And therefore this is where concerns could then be raised insofar as this is concerned. And the way that's done is the gardens provides information and so far as filling in and completing a form when you set out in the report and for the referral that details of the general clients details, name, address, date of birth when you first noticed the concerning the evidence to support that if there's any financial records otherwise for example what's known about the mental capacity of P. And your contact details. He concedes the referral that's made in that regard. And this is where the inquiries could obviously then be made with the O. P. G. Which would enable them to investigate in those circumstances. So that's the thinking behind that. Okay, now, as I mentioned earlier in the first session, it may well be the case that somebody has not made an L. P. A. At all. So they didn't do an LP and that have lost capacity or they may have had an opium made but it's not been registered and a decision that had to be made very quickly because as you can imagine once an L. P. A. Is done then needs to be registered, there could be quite a time gap from the point at which you lodged the L. P. A. And it's been registered before you can then act upon it. And let's say during that time which could be some months and often is could be several months before you hear back. Sometimes given the number of LPS that have been registered and and how busy the RPGS let's say during that interlude period, there needs to be a decision taken and that's where somebody may need to apply to the quarter protection for a single authorization. For example, there may well be an application for somebody to become a deputy so as to be able to make a particular decision and carry out a certain step or to have standard authorization to carry out a number of tasks and that's really the thinking behind deputy ship whereby decisions need to be made on behalf of P who now doesn't have capacity and therefore to seek authorization from the court of Protection. So this may so it may well be necessary to appoint a deputy in circumstances where P may lack capacity to make a decision. Uh And again one would need to show that they therefore have an impairment of the mind disturbances in the functioning of the mind, the brain which then impacts on the ability to make that particular decision. You do need to ask yourself what's the alternative? I e. Can we rely upon an attorney? Has an attorney been appointed as opposed to going down the route of the deputy ship? And as I mentioned in the first session, the appointment of welfare deputies is less common. So, in terms of the powers then of deputies, as you can imagine, the powers can be very wide in that regard. So this is where you may well find that the section 17 powers that specifically set out what the position is with the powers of the deputy. So section 16 covers the Personal Welfare Deputy. So this could cover similar steps to what you would do if you maybe had an O. P. A. For health and welfare and you put provisions in there in terms of preferences. So deciding, for example where he lives, deciding what contact if any they have with specified persons. You can see this measures the type of things you may put in the L. P. A. For health and welfare decisions, making orders prohibiting a person from having contact with P. Okay, So you can ask for a personal welfare deputy to seek authorization from the court insofar as that's concerned, giving or refusing consent to carrying out a continuation of a treatment by person providing health care for P. And giving direction uh for person responsible for peace healthcare to allow different person take all responsibilities. So, those are some of the decisions that may well need to be made in these cases and therefore deciding where they live day to day care. In terms of diet address arrangements for medical, dental optical treatment. And you can see that these are therefore the types of things which may mirror the types of matters that your client may have made provision for if they were asking you to draw for them the health and welfare. Uh L. P. A. Was there obviously still had the capacity then there's also the other powers under section 16 and so far as property and affairs. So this could cover for example controlling and managing of peace property. So you can see again, this can mirror the type of things you may have in a property and financial affairs. L. P. A. So solar property, exchanging uh gifting, for example, selling, buying, charging, mortgaging property, for example, acquisition of property carrying out of a trade. Whether the business should continue whether it should seize. Also dealing with maybe financial accounts in that regard, taking over decision in terms of dissolving a partnership. Otherwise you can see quite specific financial decisions may need to be made as a property and Affairs Deputy Also dealing with maybe carrying out in contracts, discharging debts, liabilities, paying tax, for example, dealing with tax decisions, gifting, for example, for tax purposes executing of a will. So deputy may ask specifically for a statutory will to be put together pursuant to section 18 in that regard and the conduct of legal proceedings in peace names. So sometimes somebody may wish to become a deputy to then continue and progress legal proceedings on behalf of P. P. May have been involved in an accident, a work accident for example, lost capacity. There may be a personal injury claim that is being pursued and that's where you may find out a deputy which may wish to then seek authorization to pursue that on behalf of P in those circumstances. So in terms of them who can be a deputy. Uh This is where we then need to be clear about section 19 of the M. C. A. In terms of appointment of deputies And a deputy appointed by the court must be an individual who has reached the age of 18. Uh and in respect of somebody who then is going to be appointed to deal with property and financial affairs that have reached 18 or be a trusted corporation. You can appoint an individual Okay? Or you can appoint more than one deputy if needs be okay. And the person cannot be appointed as a deputy without their consent. So that is of course required in these circumstances. It is possible, like I say, 2.2 more deputies to act and you can see that this is very similar to what I've described in so far as the position uh with um attorneys is concerned, which is therefore when you are looking to appoint deputies and if it is going to be a joint instruction, then there could be instructed to act jointly and therefore all decisions need to be made jointly by them or joint. And several as I mentioned earlier. So either jointly or severally they can make decisions therefore independently or together or jointly in respect of some matters and jointly and severally respect of others. So again, this mirrors what I mentioned earlier with LPS in that regard. And the court can also when they are making appointments for deputies, also appoint one or more persons to succeed the deputy in those circumstances upon the occurrence of any event. So you can see there could be that substitution of provisions made available here as well if needs be. Now some of the other things to bear in mind insofar as when the deputy ship appointment does come into play, that is the deputy is to be treated as peas agent in relation to anything done or decided by the within the scope of the the act. Okay, So it's not that piece assets, financial assets are therefore transferred into the Deputy's name, it's not like that. They are obviously responsible for managing their affairs as we said, and therefore you're acting as agent. But those assets do not vest in the name of the Deputy. And therefore the Deputies not personally responsible for being responsible for, say, dealing with peace, debts and liabilities, for example. So the property doesn't vest in the Deputy and the Deputy is not liable personally then for the debts and expenses of the person in that regard. Uh In terms of payment, the Deputy will be entitled to be paid out of peace property for recent expenses in discharging these debts. There are set fees which are set by the court of Protection. You got to practice direction in relation to remuneration fees or you can apply for those fees and to be assessed by the court. And this is where they will be assessed in appropriate cases by the senior courts cost office, for example. Okay. And the court can then also make provision for Deputies then to take possession or control of any other property of p and exercise any of those powers that are mentioned earlier in terms of investment sale, charging renting of property or otherwise. As I mentioned now, obviously, as a way of additional safeguards. As I mentioned, the court will often when they are making a Deputy ship order. Make provision for requiring reports to be made available, soul audit for auditing purposes. And also for example, reports, financial records to be made available safely accounted. For example, if needs be to administer and deal with peace a state. The court can also give uh require deputy to give to the Public Guardian such security of the core things for the discharge of their functions. So again, that's an additional layer of protection to make sure that they are therefore going to be acting in p. S best interests so that they may have to give a security a bond uh to ensure that they then are effectively providing that almost insurance cover to ensure that they are going to be acting in peace best interests and also to submit to the Public Guardian. Such reports as the court may require them to submit in terms of how they are carrying out the work at such intervals that may well be required by the court. So that may also be provided for as well in the order. And as I mentioned earlier, we do need to ask ourselves as to whether deputy is actually needed at all. So this is where section 16 sub paragraph four of the act comes into play, which is like so you do need to ask yourself, is a deputy actually even needed. And this is where the Act does say that when deciding whether it's in peace best interest even appoint a deputy or not. The court must have regard to amongst other principles. That is the fact that the preferences to a point and not to appoint a deputy to make uh ongoing decisions, but rather to confined to that one decision and therefore to confine it to that particular decision. But if you are going to be appointing a deputy deputy to then have ongoing decisions to make in relation to finances four P than too limited in scope and duration. All right. Because again, you can imagine that what the court doesn't want to do is to give a carte blanche right to a deputy to do really as they please. Because it may be that it's a power which is to open and and unnecessary and therefore, remember from what I mentioned earlier, the court has to do what's in people's best interests based on the least restrictive. So therefore, if it means appointing a deputy or need to carry out certain tasks or limited in scope than they would prefer to do that. So, the court therefore like say, does need to ask themselves, should we actually even appoint a deputy or is it better to make a single order? For example, they do therefore decide to appoint a deputy to ensure that they restrict the scope and duration of the appointment in those circumstances. And actually is there an alternative way of dealing with this? For example, should we be uh enabling the attorney to continue or is there an R. P. A that has always in the process of being registered and they will do a wait for that to be done first. Now in terms of the process for applying for deputy ship a lot of this procedure that is contained within then the quarter protection was of 2017 as amended. So you got part nine which covers this and you've also got the practice direction practice direction 98 which accompanies this and this sets out really the information. So if you're applying for say a property and financial affairs, deputy ship order you applied for that and the forms you need to be completing our first and foremost the cop form one. So it's called cop one in duplicate. So you're gonna be filling that for me which is the standard for me feeling for most applications to court protection. Uh You wouldn't use this if you're going for deprivation of liberty authorizations for example. That would be different doll forms for that. But the cop one form is used for many applications. Majority of the applications will be made into the court protection and it is also then the supporting info. So the cop one A. Is the one that you would be filling in as a as basically a supplemental form. If you're asking for deputy ship order to be made for property and financial affairs for example uh and property and affairs where deputy may not be required. So you're using a cop one A. For that. The cop 11 B. Is a supplemental form when you're applying for a point of a deputy in the case of health and welfare decisions. Okay so that's gonna have to be completed. Uh and this therefore you can see is obviously an important form there and they also, as I mentioned earlier the court needs to be satisfied that p does not have capacity before they go ahead and make the appointment of a deputy ship order and therefore there needs to be a confirmation that he does not have capacity for that particular matter in hand and therefore you need the assessment of capacity form completed as well. The former cop three so that's required as well. There's also a deputy's declaration of cop for which needs to be filled and I'll come back to that shortly and then there's the court fee as well which needs to be completed percent as well or the fees of emission And in terms of the fees, the fees changed uh last year. So 30th of September 2021 the fees went up and the fees to apply for court protection for many of the applications has now increased from £365 to £371. Okay, so this is powerful and Andy Application to start court proceedings or making application for permission and to commence proceedings there are other fee changes as well. So for example if you're looking to appeal the appellants notice appealing as the fee for that is £234. The hearing fee. If you need to ask the court to list a matter for a final hearing Or declaration or decision. There's a fee payable of £494 copy of any documents that there's £5 fee for that. Okay, an application hearings related to objecting to registration of ePA's or LPS, they don't actually incur feed themselves. So if you look at this link, the cop 44 way that sets out the fact that you can apply for help with fees as well if the person is on a low income or uncertain prescribed benefits. So one of the other things to bear in mind and with the cop application is uh the cop for which needs to be completed. And this is a very very important document because this then needs to set out what the position is with the duties that the uh the proposed attorney will then be uh undertaking. If they were to then become attorney. So your deputy. And this is what they need to be able to certify that they will be complying with this. The cop for form which the applicant would have to do. So if you're for example as a lawyer being instructed to apply to become a deputy, then you'll have to be completing and submitting this cop for form in relation to yourself done in that regard. So just going through so many aspects of this form, there's a number of undertakings that you'll have to sign up to in so far as this cup for form is concerned. So looking at the form and it will be setting out, for example, obviously your details so who's applying? So you'll be setting that out details of person to whom it relates to you. So obviously p in those circumstances, you're then gonna have to give details about your personal position. So if your unemployment, how long you've worked in your employment, whether you've been a deputy before or an attorney for somebody else, for example, have you been convicted of in your fences your particular circumstances? So for example, is any issues about your health which may make it difficult or may not make it possible for you to act as deputy uh and your financial circumstances. And this is not requiring you to set out your specific circumstance in terms of, you know what your uh what amount of money you have or assets. It's more asking you whether you do have say, a personal bank or building society account, Have you been refused credit? Have you got any judgment, debts or otherwise? Have you ever been declared bankrupt or any debt relief orders that have been subjected to really looking to see whether or not there is any question mark as to your character to question. Therefore whether you're in a position to be able to handle piece financial affairs, given that may have been difficulties with dealing with your own affairs for example. So that's the thinking behind this And then there's going to be 17 undertakings that you have to sign up to. And again when you look at the form these should not be undertakings that you'll have difficulties signing up to. I mean principally you're confirming the fact that you will have regard to the capacity acting making decisions, you will act within the scope and the powers of the deputy ship border. You'll act with due diligence and act with care. And it's obviously these are things that we as lawyers should be doing anyway. You make decisions to take steps with china corners with the best interests of P. Which as you know is what you need to be doing in the corners with the M. C. A. You won't let your personal interest conflict with your duty as a deputy which obviously is what you're going to have to do. And you'll keep your personal Financial Affairs separate from those obviously P. And you'll keep ps personal details confidential which again complies with the S. R. A code of conduct in that regard. You're comply with any personal request made by your PG or by the court for providing information for reporting for example providing the reports that I mentioned earlier. Uh you'll make sure that you do provide. For example if if you're going for a property and Financial affairs Deputy ship you need to ensure that you will keep accounts clear. Obviously you provide details, you provide the security, the bond if required in those circumstances. So again, these are undertakings that you really shouldn't have any difficulties with complying with but it's obviously certifying that you are the right and appropriate person therefore to be making the application. That's the thinking behind this. Now there was a pilot a few years ago and the thinking behind this was to enable applications to the quarter protection to be managed on a much more streamlined basis so that for example if one is lodging an application for deputy ship and say it was contested, they went through a pathway to ensure that delay was minimized and with that in mind there were three case management pathways that were basically put together. There was a personal welfare pathway. The property and affairs pathway is another and then the mixed personal welfare and property pathway pathway in that regard. And these have helped to progress the way which we run these cases through the quarter protection and these are now contained within the quarter protection Amendment rules of 2017 in any event which which were then brought in in november 2017. Now one of the other things to bear in mind is when you are then applying to become a deputy, the question is sometimes asked when you're filling in the cop. One form is one of the questions is whether you need permission to even make the application or not. You're not required to seek permission to apply to become appointed as a property and affairs deputy. But if you are seeking to become a welfare deputy ship then in those circumstances you should be seeking permission in most cases. And the thinking behind that when you're filling in the cup for cup one form that is is for the court to be satisfied that actually there is a real need for you or for the court to consider whether to allow deputy to be appointed. Because as I mentioned earlier welfare deputy applications. Majority of them will be refused because the court takes the view there is no need you know why should somebody apply to become a welfare deputy will actually those health and welfare decisions could ordinarily be taken by the health authority by the G. P. By the hospital staff. Why should we be authorizing say a lawyer for example to make those decisions where they will no doubt be seeking the opinion of D G. P. Or the health professional anyway. But obviously if it's going to be on long ongoing decisions or there's conflict between family for example and that may necessitate making a deputy supporter and therefore that's the type of things you may have to set out on the cop one form as to why permission should be granted to you for you to then become a deputy in those circumstances. So when you are filling in the form, you need to be providing details as to personal details of the applicant, the person one is applying for uh and you need to set out the nature of the application. So is it a deputy ship application of property and affairs of personal welfare? And it's important to note that separate applications need to be made if you're applying for both in those circumstances. So you need to set out details of the applicant uh set out also what is being sought? So is it the appointment of a deputy? Why the appointments necessary? So that's the provision that I mentioned earlier. What's necessary? What types of decisions need to be made? And is there need for the point of deputy or is it possible for the court to make a single order on that particular issue? For example. So you got to be looking at that also. Then there's the provisions relating to service, so who's to be served and their relationship to the person. And this is where this provision of the cop one for for respondents to be served and responds to all people that the applicant believes have got an interest in the matter and whom the court the court protection may wish to hear from. So often respondents are gonna be, you'll find immediate family, for example of of of p in those circumstances, respondents need to be served with a documentation relating to the application which may or may not be a contested application that needs to be provided at least three people who may have an interest in the application and they would need to be notified and they can apply for party status and put forward their views as well. So this is where as we said family members, immediate family will often be with respondents and they may well be other persons then who are notified also such as maybe a local authority primary care trust who may be affected them by the application that's been lodged in this case and the couple one a form that is filled in. You would then be filling this in this the supplemental form as I mentioned if applying as a deputy for property and affairs and then provides a lot more information about the particular nature of the application or sort of financial position of peace. So some of the information on the cop one a form may not be available to you as the applying deputy. And this is where therefore you may have to consider seeking an initial order firstly from the court protection to have that documentation provided to you from say the banks and building societies that are enabled you to complete the cop one a form to then apply for deputy ship. So there may well be a need for initial application first and almost So when you're filling in the cop one a form very important then to be able to set out in there whether you're applying as a sole deputy or as a joint application. You do need to set out if there's maybe an E. P. A. Or an L. P. A. Or will for example. And if so you need to be given details of that. So if there is an E. P. A. L. P. A. Details of that, whether it's been registered or otherwise you need to be providing details of the attorney if there is one. And why why is it that you're applying for deputy ship? Where say there is audience an E. P. And L. P. A. Is it because it hasn't been registered for example. And decisions need to be made. So you need to be setting out why you're applying in these circumstances because it may be that the attorney doesn't wish to act for example. So you need to make it clear why you're applying for deputy ship and why we shouldn't be relying upon the attorney in these circumstances. And it's set out also whether the applicant is aware as to any will that the person may have made. And if there is a will that they have you need to be attaching a copy of that and that then is helpful to know what the views of the executive designed to survive the application for the deputy ship in that regard. Uh The will may well provide these tells us to how the person sought for their financial position to be dealt with it. That's why it's important to know if there is a will and what the position is that the donor may have provided for in there. There's a specific information as to finances. So like I said you need to be then setting out specific info on the cop one a form as to the uh peace financial position. Uh their income benefits they may receive as well as any interest. Uh Also details if they are say a personal representative relations someone else's estate in that regard. So you're putting together a lot of information about peace financial position. So the court has a good idea as to what kind of financial position they are which in turn the responsibility for that for that then running off that and dealing with that will then being thrusted upon the deputy. So you need to be setting out specifically details as to finances of peace. So details of money in banks and other accounts investments held by P details of property that may have. What specific authorization you're seeking assets exceeding £10,000 in total setting out details of debts and liabilities details when you care costs for example. So those types of matters obviously going to be highly relevant for the court. So what will then happen is once you've got this paperwork together, there's the capacity assessment as well. The Cop three as I mentioned which will have to be completed as as well by the by the health professional. So it may well be that the cop three form that is completed. It may be completed by say a psychologist psychiatrist, g. P consultant in those circumstances. So it does depend on the specific circumstances to who completes the top three form. Sometimes it may well be the case that insofar as that form is concerned. It may be that social worker completes the local authorities involved for example. So that may well be the case as well. It may be an improved mental health professional for example and nurse occupational therapies for example. And the specific requirements on the cop three form to set out the assessment of capacity, making sure that they have taken into account the EMC requirements that I mentioned earlier and then also confirming as to whether they have the capacity to make that particular decision that the application relates to whether the capacity is fluctuating otherwise. So again, to help the court to decide whether or not uh there is sufficient evidence there to say that they do not have the capacity. So all of this information is lodged unless the matter is contested. Uh Then the court would then the application will then go through the court feels it appropriate. So the court will then examine the papers uh and then returns endorse copy to the applicants. Like say the matter could be contested in which case they would then be provision for respondents and also the persons to be notified to and apply uh to be joined and respondents then to put forward their views statements to be far setting out why the appointment should not go through. They will then be hearings potentially. But if the matter is contested, the court can then still obviously make the order if it's felt in peace best interests and if the matter is uncontested, the court still has to examine to see whether it's appropriate to make the order and if so on what basis. And this is where practice direction nine B. Comes in terms of notification of other people that an application has been issued. So that's where as I mentioned as the provisions relating to respondents and other people to be notified once and if any order is made appointing the deputy then it will be very specific in terms of setting up the skull poverty authorization. It's it's usually drafted with restrictions and conditions in there. It will provide for the position of payment of costs as I mentioned. And it may well set the security in terms of what security uh the deputy needs to provide to ensure that there is that additional safeguard as I mentioned earlier. And one of the key things that need to make sure that the deputy will obviously be acting in accordance with the M. C. A. So there could be other restrictions such as for example the order may only be for a fixed period of time. For example, it may limit the amount that the attorney the deputy can even spend in anyone uh year for example. So there may be a limitation on that. It may say that they haven't got the authorized authorization to sell but just to end the property or to buy or charge maybe may exclude or include certain investments for example. And it made it specifically depart. As I mentioned earlier about authorization of um doing accounts for example providing the paperwork enabled accounts to be done by say the accountant and also for reports to be made available to the old PG for example to provide that additional safeguarding that I mentioned earlier. Okay so that then brings this session to an end. So you can see I've covered a fair bit today talking about the position with applications for attorney ship in terms of LPS and also the position with deputy ship. So what I'm gonna do in the final session is we're gonna be talking about some of the other applications court protection. So we look at advanced decisions, we'll look at statutory wills and gifting and also I'll take you through some of the recent case law as well. So can I thank you very much indeed for listening and I'll speak to you very soon. Thank you very much indeed. Bye for now
Session One
Session One - Slides
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