Delivered by solicitor Safda Mahmood, this session looks into Private Client Law Advocacy.
Hello. Welcome, everybody. I'm very pleased to welcome you to today's bites. A session as of August 2019 through data law. This is the bys I session, where I'll be taking you through lasting parts of attorney. What they are the uses, the registration on or Saudi procedure. I'm a sister and also a lecturer. So with this course, not be going through in despite sigh session, looking at a different types of lasting power of attorney, both D property and affairs on also personal welfare will be looking at a set up and registration off last in powers of attorney, and I'll be looking at the procedure for registration and also considering really some of various aspects in relation to the forms. So when we look at lasting power of attorney than a lot of this area is contained within the mental capacity of 2005 which brought in a whole a lot of change back in October 2000 and seven on a par for Tony essentially message through which one is delegating decision making regard. Indeed, donors business Andi now personal welfare decisions to somebody else, and that's where a lasting partners Tony previously, Nona's and doing proper Tony well survive at the donors. Lux Loss of capacity Not previously We used to have enduring powers of attorney those and doing partisan telling which were made before First of October 2007. Continue. But it is not possible to have any new and doing pads with Tony created us from the first of October 2007. Instead, now there's two other types off lost parts of turning honesty. Personal welfare last in private. Tony on the property and affairs, a lasting power of attorney. And for somebody to really have these created, they would then ordinarily want these two taken effect not in all cases, but in many cases when they may lose capacity. And this is where there's a lot of law society guidance on this on last in private attorney. There was the guidance off September 2007 for example, in January 2008 for example, now when you're filling in the forms for last improvisatory, you need to then ask yourself who should be acting as the attorney for P. R. For the donor, who should actually be appointed as the attorney who is then going to be making decisions on behalf of the donor. Andi. Should more in one person actually be appointed in no circumstances. Sometimes you find that it could be competing family interests so that say, if a mother wish to apply, for example, adult and she wanted to appoint attorneys, then it may be that she has a difficult choice in deciding who is going to be her attorney. Is it going to be her husband for his own place, going to be one of the adult Children? What if there's a dispute between the Children's? Of course, that can cause difficulty. Sometimes solicitors can, of course, be appointed attorneys also for the pips of lasting power powers of attorney in these circumstances and what your findings with the Property and Affairs LP A. For example, then it may be that this is used to cover a number of things such as, for example, dealing with financial affairs, which could be practical things. Such a signing cheques, for example, paying making payments. But it could involve more involved aspect, such as buying and disposing of property, for example, charging property it not regard Andi it therefore there needs to be a choice made us to who to appoint and whether or noticed it is to be a single turn your joint attorneys on. If a joint appointment is bite than when you are filling in D, the power of attorney form the lasting palpitating former. And there will be questions that will be asked as to whether the person wishes for the attorney to be able to, at jointly or jointly and severally, or jointly or severally on some matters on Dsev. Really uncertain. So if a joint a point is made, are you wanted to set out in a weather person connected alone or whether you would wish to for them to be joint and several, which means they are joint on certain matters but in several onset and others, for example? So that could be some discussion there. So so commonly you find it may be the case that as a donor, you decide to point to a more attorneys where they can, or they are required to write joint young many decisions, but they are able to act unilaterally in relation of transactions up to, say, £5000 for example. But anything above that do it both need to actually in relation to that. So sometimes you find that that may well be the way forward in relation to the powers and limits and conditions off the attorney. This is where then you need to set out specifically what the provision is in terms of instructions on also preferences in the last imperfect any application. And this is where, generally or thought interactive relation to old property in a phase is the most usual usual provision you find in a property and affairs LP A but is possible tremendous authority, for example, regarding conditions on how to connect in certain situations, for example, stating that they can only act relation to put set and specified affairs property affairs otherwise, for example. So that way, at least, I'll be some limitations and so far, what they can and cannot do in that regard. One provision in relation to guests, for example, by Under the Mental Capacity Act of 2005. Generally, attorneys limited to making those guess what you're limited to being over effectively a seasonal nature on those on doors. On occasions off. Example anniversaries, marriage on birthdays, for example on. But this is where one wants to ensure that the person is to be allowed to make certain other types of gifts, for example, than the May wish to make a particular instruction for that in the last improper Tony. Sometimes you may find that there is going to need to be an application made to the quarter protection, for example, specifically to make gifts in relation to inheritance tax planning, for example. So they'll limitations as to how far one can actually require specific instructions to report in the last impertinence farms. What can be done in relation. Two gifts on this is where again, there is a lot of useful guidance offered by the Law Society, insofar as the position with gifts in so far as part of Tony are concerned. And this is where then we look at matters. Relationship delegation, for example, saw that a lawyer who is an attorney may need to what have also to delegate their powers, for example, such as the conducting of investment businesses, a discretionary manner, indoor circumstances, and this is where they may want need to be the need to include a delegation of management or investments in the property. In the fears last imperfect Tony for example, on that, therefore, if also say, a solicitor is going to be appointed as an attorney, that it's important to ensure that there is a professional charging clause, including indie. Pop it in a phase lasting poverty and existential that's listed to be able to charge for the work that will be undertaken so far as that is concerned. Sometimes you may find that a person would want to give another personal authority to make a decision under behalf. And this is where. Then you may find that Danek and then shoes, uh, one personal several persons and to make certain decisions for them in that regard. So what are the differences than between last in power of attorney on an enduring poverty anywhere? There are a number of similarities and differences in doing part of Tony, which do still exist. But as I mentioned, cannot, any new ones cannot be made us from the first worked over 2007. These only covered property and affairs. Where's lasting power of attorney? Certainly deep personal welfare once concolor, of course, personal welfare matters as well, so that's a big difference between the two on donors must use the relevant specific forms to make undoing perverted. Turn your lasting power of attorney so that there's a different formative years for Personal welfare LP and a separate one for property and affairs. L P a e p a. Is they wouldn't need to be registered with a public guardian when a donor can no longer manage their affairs or one day begin to lose capacity. LPs can be registered at any time before they are used on day L. P. A. Cannot have abused until it has been registered. But what's important is certainly would be property and affairs r P A. Even though, UH, that cannot take effect until it's being registered once it is registered. Even if the donor has a capacity, the attorney can act. Indoor circumstances provided, Of course, they don't have any objection to acting by the donor. That could be in situations where sometimes, let's say somebody does make your property and affairs R P A. It is registered on. That person is physically incapable of coming out their property and affairs due to say, a physical disability that's way to make still be in control of the factors faculties that still have mental capacity. But it may be in that situation down, asking for the attorney to rack indoor situation for them to carry out their property and affairs in accordance with their intentions in that regard. And one of the other aspects to bear in mind, therefore, is that when it comes to creating LPs, there is, of course to me to ensure that the requisite forms are completed on the Dorner must followed the right procedures for curating and registry indie lasting power of attorney. Otherwise, it simply will not be valid. And, um, for somebody who does have an LP a created for them, which wonderinwhat wish you to rely upon, there must have had mental capacity at the time in which Dia El Pierre was actually created. And for it to be valid, it must be a written document set out in the prescribed stashed reform. It must include the information about the nature and effect of the LPs. As I mentioned, it needs to set out whether dale particular instructions or certainly preferences in that regard, the donor must sign a statement stating that they have read prescribed information or somebody is ready to them on that they want their lost in planetary to apply when in long, longer have capacity. Or it may be that it was departing affairs where they may wish for it to take place when once it's been registered. But even wonder do have capacity, but they wish for it to take effect on the document. Must name people, not any of the attorneys. It should be told about an application register. We should say that no one wished to be told. That's where seven people can be notified before the last improper Tony application is actually registered. And attorneys must also sign a statement stating that they have read to prescribe information on the understand their duties, in particular, doing to ensure that they are confirming the fact that there will be acting in the donors best interests. It's a favor very important, to emphasize that there must also be under document a certificate completely by independent party who confirms that in their opinion, the donor does understand the purpose of the last. In private Tony. Nobody has used Ford undue influence or forced into making them really having the opiate don't for them, and there's nothing stopping the O. P. A. from being created. As I mentioned in terms of who connectors attorneys, the donor should think very carefully choosing good a wish to be an attorney. Somebody who had a fear with competent, trustworthy they can rely upon the attorney themselves must be at least 18 years of age on the property and affairs LPs. The attorney could be either individual as long as they're not bankrupt, all subject to any financial orders in that regard or trust corporation. Andi, if they were to become bankrupt at any time and then would no longer be able to act as an attorney for property and affairs in those circumstances. Now it is possible, as I mentioned on the mental capacity X Section 10 subsection 40 act to allowed a donor to a point to a more attorneys and also to specify whether the conduct jointly, jointly and severally or jointly, in respect of some matters and jointly and severally in respect of others on joint antennas, therefore must always act together on all matters on. There must therefore will agree on decisions and sign any relevant documents on joint in several connect together, but may also make decisions independently. Indoor circumstances and, as I mentioned, joint in respect of some matters and several another, maybe a situation where the decision taken by the donor is that they need to act joint in respect of certain matters up to, say, £5000 worth of a transaction. But I think so. In terms of day, connect several in relation transactions up to, say, £5000. But they would need to act jointly transactions beyond that, for example, or sometimes you may find that that's provided for. There's also Section 10 subsection eight of the Act Mental Capacity Act, which provides that donors may choose to name replacement attorneys to take over duties in certain situations. For example, in the event of saying attorneys death, for example, on the main aim of specific attended to be replaced, what replacements come take over from one Turney assed? The case may be, as I mentioned, in relation to the position with registration, the LP A, the last improv attorney, must be registered with the Office of the Public Guardian. Your PG before it can be used on Day four. If it's an unregistered help. Yeah, it simply has no legal affected Tory now regard on. It is possible, as I mentioned for the LP A to actually be registered once. The donor still has capacity on the art branches, of course, in registering DLP a as soon as possible after the make it to ensure that there's no delay, but also to make sure that if Dirani in the consistency is any problems with the O. P. A. Doors could don't be a member did particularly wise. Donor still has a capacity solid. It could be remedied. And if what, it could be asked specifically, it's a very, very important to bear in mind when the donor still has capacity. It's very important for a donor to let the office sort of public guardian know of any changes of address for example, off themselves or indeed, of the attorney indoor circumstances or any other change in circumstances so very, very important, and one of the other things to bear in mind there for you when you were looking at personal welfare LPs. These can then be used whereby donors Kanaan appoint attorneys to make decisions about their personal welfare, which coming for, of course, include health care and treatment decisions. So, for example, where they are to live on who on who statured live with their day to day care such as dress and diet, for example who have contact with medical intervention. For example, community care services like to access our personal information those types of very key essential matters and one of the things one that you have to pay a mind is before making a decision. Under the personal welfare last in poverty, the attorney must make sure that, firstly, D L P. A. Has actually been registered video PG and that, and also that the donor doesn't not lack capacity to make that particular decision. Onda also need to ensure that they are complying with Section four D exhorted acting in accordance with what Cindy donors best interests. India in the circumstances are very important to ensure that they are doing that on. LPs. Can also give the attorney the power to demand specific forms of medical intervention that healthcare staff might not believe are necessary indoor circumstances. And that's re Attorneys must make sure that the follow DX principles on act in their best interests in that regard, So an attorney can oniy consent to refuse life sustaining treatment on behalf donor If when the making the opiate a donor has specifically stated so in the actual, uh, okay document itself, Otherwise they would not be able to do that in the circumstances. Now, when it comes to property and affairs, R P A's are gonna can make on o p. A. Giving the attorney to right to make decisions about property and affairs, including financial matters. Andi once de El Pais registered the attendance. Didn't lateral make make or decisions about the donors, property and affairs, even if they have capacity for decisions themselves indoors? Circumstances Sort of type of situations where decisions may be made, for example, is when it comes to charging property, buying property, selling property, for example, Dean with bank accounts, for example, access to financial information. Receiving income, dealing with inhabitants, dealing with tax affairs, pain grand, dealing with insurance, investing, for example, dealing with making gifts, for example, paying for certain aspects and so force. You can see many financial decisions, therefore may well be decisions that are then being made and taken them by the attorney in those circumstances, so you can see the thinking behind that. Then, of course, there's the quarter protections powers themselves, sort of court protection itself may have to get involved sometimes where, for example, is the dispute as to whether a particular last in poverty should even stand, whether it should be set aside, whether it's valid, whether it's void on also giving directions about an LP, a. So, let's say, a lasting poverty. And he was put together. But there's a question mark as to where the symphonies of preference or whether it was instruction, whether a particular instruction should even be upheld or not. So that could be those aspects. If somebody does dieters to whether last improv attorneys, in fact even valid or not. And this is where the quarter protection could be asked to make a determination as to whether deed lost in private and should be revoked toe otherwise or what it has come to an end or otherwise. So favor importantly, bear that in mind. Andi, in terms of responsibility is a donor cannot insist that somebody agreeing to becoming a turning door circumstances. It's up to really the proposed attorney to decide whether to take on that responsibility or not in that regard, and once on attorney does begin to act in the lasting poverty that must meet setting standards. Wanted as I said, they must ensure that the act in the best interests of the donor they could, of course, face big removed if third quarter protection, if they'll acting inappropriately, that could be claims of negligence brought against him and even fraud in certain situations as well. So that could be those aspects as well in that regard. Okay, so you can see their number off matters which need to be born in mind. When I wanted to look in that lasting purpose, attorney concedes to two types than on their four days do differ quite significantly. Fundy and doing powers of attorney that I mentioned earlier hope Dustin a useful by psy session for you just to really pull together some of the key elements landing LPs had a work. Onda also really who connectors attorneys at the expectations of what can report in the last imparts Tony on the difference between a property and affairs power of attorney. I last in private Tony in, or Saudi personal welfare one as well. Thank you very much indeed for listening. I hope that's been useful. Speak to you next time. Thank you. Bye. For now
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