Yeah. Hello and welcome everybody. Nice to welcome you to today's session through data law. My name's after Mahmoud. This is then session to on the course for the quarter protection. What kind of matters does it cover? So as you know from the first session that we looked at I'm using these a couple of hours that have got to go through with you about the extended and extensive use of the quarter protection to deal with various types of applications. Last time we spent some time going through the position with the setup of the Quarter protection we looked at the position with the key principles in the act. We looked at the test for capacity to both functional and the diagnostic uh test and also spent some time going through with you the position with deprivation of liberty, Liberty Protection safeguards and also somebody developing case law. Today. I'm going to be spending some time going through with you in a bit more detail the position with the lasting power of attorney and also applications for lasting power of attorney and also deputy ship as well as also looking at the use of advanced directives and also other applications to quarter protections such as the use and applications for statutory Wales for example. And I'm looking at this as of July 20 20 one. So like the last time I spent some time going through with you, the Act, the set up of the Act and the accompanying called practice. And I made specific reference to the mental capacity Amendment Act of 2019 a fair part which will be hopefully implemented as of April 20 22. I'm going to be spending some time looking at planning ahead today and what people do then when they want to put together an E. P A. Uh, and also lasting power of attorney and influence decisions. Okay, so just before we do that, I just wanted to pick up on another case, another more recent case which links and then with the position with COVID and in particular position with the COVID-19 vaccination and applications to the Court of Protection. So this is the most recent case that I'm aware of in relation to an application via the Quarter Protection uh in relation to uh the covid 19 vaccination for somebody who lacks capacity. This was a case of S. S against the number of Richmond upon thames of this month this year. And this particular case, there was one dealing with the case of SS who is an 86 year old woman residing in a care home. And the application is brought pursuant to section 21 a of the mental capacity Act of 2005. Now S. S lacks capacity in various areas. Uh And in particular in relation to the issue whether she can or cannot consent to Having the COVID-19 vaccination and his lordship in this case said that the application had been brought therefore to concerns as to the fact that Ss was refusing to have the vaccine. Now on the facts. The court was satisfied that given sec s historic medical history, she did lack capacity to make this particular decision. And as you know when it comes to capacity it's about person time and events specific. And one of those things that the court looked at here was the impact upon ss of becoming of being given the vaccination through compulsion. Now the court was aware of the fact that she was in a care home. She was resigning. He wanted a larger care homes uh In the U. K. Of course this particular care Home was one way since at the onset of the Virus in 2020. Some uh 28% of residents sadly lost their lives. Um Of course because of the vaccine they had been a gradual and significant decrease in the number of infection rates. Uh Of course she still remained vulnerable, highly vulnerable given her age given a particular circumstances. Most of the people staff in the k home had been vaccinated and if not there were restrictions as to access. And also the persons who had not had not been vaccinated largely down to medical reasons. And the court did say that if in this situation ss did not consent to the vaccination, if the court did authorize this by way of the Court of Protection order then the impact upon her being given this vaccination through compulsion is that she would need to be restrained. She would need to be sedated and it wasn't felt that that was appropriate in the circumstances. This is a lady who certainly had spoken. Her mind had been very vocal. Had been very clear about what she would and would not consent to. Uh if she was sedated. If she was restrained she would look to her carers for their help. They wouldn't be able to have to intervene. That would be very distressing for all parties concerned. Uh And the local authority and accredited legal representatives said that when you're evaluating welfare it could not be said that it was in their best interest therefore to have the vaccine in the circumstances. And in fact his lordship on the facts of this case agreed. The court did say that given what was known about her past. Um Well she's bearing in mind a section for M. C. A. Criteria which is one has to look at previous wishes and and and expressions and what was known about the circumstances and the risk and also how she would react if if she was given this the court found on balance that it was not in her best interests To have the vaccination against COVID 19th on the facts. The order was not made. Yeah. Now as I mentioned we need to think about planning ahead. So therefore as I mentioned the first session. Sometimes you have situations where clients will come to you uh And they'll be asking you to put together a lasting power of attorney for them And help a as we know them came into effect on the 1st October 2007. two types is the property and financial affairs L. P. A. And it is also the personal welfare L. P. And you can't do both on the same form. There's got to be two separate forms of course which are done for this purpose. Sometimes you may find that some clients even have a separate L. P. A. For personal and business property so they may have a property and financial affairs for personal property and it could have a separate one for their business property as well. So even that's possible. Um E. P. A. As we used to know them and doing powers of attorney under the old and doing powers of Attorney Act 1980 five was such that they could only deal with property and financial affair matters, not personal welfare but also any new E. P. A. S. Cannot be made as from the first of october 2000 and seven. Saudi E. P. And doing Power of Attorney Act of 1985 was repealed By the provisions under the M. c. of 2005. But any E. P. A. S. That were made before that date are still valid and therefore are still recognizing that will continue to be the case going forward until such time as as those are faced out. So how do you help? A. Is then differ from EPA as well First lead and as I just mentioned, an E. P. L. P. A. Can then deal with personal welfare decisions. So not just property and financial affairs but personal welfare E. Where a person lives, who they live with, who they have contact with matters related to food comfort, diet, medical procedures sustaining or otherwise of life sustaining treatment. For example those types of matters and L. P. A. Uh welfare LP. I can deal with which previously the old E. P. A. S. Couldn't deal with. And the other important thing is LPS are not effective as an ordinary power attorney until registered. So whether you've got a property and financial affairs LPL whether you've got a personal welfare L. P. A. They need to be registered to be effective in that regard. And once they are registered, then depending on which one it is, you may be able to act upon it. So for example, the personal and the property and financial affairs LP. A. Once it's been registered. If the L. P. A. On the application form provided for this, which is that the donor would wish for the attorney to be able to act once it's been registered. Even if the donor still has mental capacity at that stage. And of course it could be utilized at that case. As long as of course it's not conflicting with what the uh donor sikhs in those circumstances was. Of course, they still have capacity. The other key thing to note, of course is with the help to it includes a certificate of understanding regarding the donors capacity. So therefore confirming uh, that the certificate provider is confirmed as far as they can confirm. The person is not under duress, undue influence in and therefore signing up to the L. P. A. The donor themselves can apply for registration. So it may be the case that if I, for example wanted an L. P. A. Done for myself giving my attorney than the authority to make decisions on my behalf even whilst I have capacity. But after it's been registered then I can apply for registration whilst I've still got capacity. I wouldn't need to wait for the attorney to apply. I can do that myself if needs be. The other big difference between an L. P. A. And the ePA is you can notify certain people in a prescribed class if needs be to be consulted. So if I wanted to provide that extra level of safeguarding so that before my attorneys even apply to register my attorney, my LP. A. Some other personal persons are to be consulted beforehand. Then of course that can be done in that regard. So it gives you that extra level of security if needs be and like say the health and welfare can only be used to make decisions once I've lost capacity. So unlike the property and financial affairs one which can apply once I once it's been registered. And even if I got capacity as long as a provider for it under form The health and welfare one can only be utilize once, firstly it's been registered and secondly only once I've lost capacity. Not whilst I've still got capacity. Okay. Okay. Now this is where in terms of applying for the L. P. A. There are prescribed forms. These were updated as after the first of july 2015. So is the L. P. A. One F. We're still property and financial affairs L. P. A. And then there's the L. P. A. One page which is the health and welfare L. P. A. So therefore you got both of those forms there. And there's some very useful guidance on the P. G. D. Office of the Public Guardian website for completion of these. Very very important to make sure when you're completing these forms you are clear about somebody expectations for example, thinking about, do you need replacement attorneys making sure you've got the uh the aliases of P the donor to make sure that when you are accessing their bank accounts, for example, as the attorney, have you got the full name? The different spellings of the names? For example, making sure that the signature party is done properly so that you must have a donor signing first and you've got the certificate provided and you've got the attorney. It's got to be done in that order. It could all be signed on the same day but it's got to be done in that order. For example making sure that the issues surrounding people who are to be consulted has been dealt with appropriately. Making sure that there's clarity as to what's the position with how the attorneys can act. Are they able to act jointly jointly and severally or otherwise in that regard? So there's a number of things that we need to bear in mind when you're completing the forms. So the position then with the donor is the person who is obviously having the L. P. A. Made for them. Mr donor. Uh They're gonna be 18 years of older and they must have capacity at the point at which this document is being put together for them. So you can't have an L. P. A. Being made for somebody who lacks capacity. Okay. That's where the deputy ship comes into play, as I mentioned earlier. And in terms of who can be at the at the attorney can be just one person. But in practice you're you're going to find out it's going to be more than one person. Uh And sometimes we'll make provision for replacement attorneys as well too become uh instructed as well if needs be. And then that's one of the discussions you need to be having with your client. Is would you wish for the attorneys to act jointly? So therefore they need to act jointly on all decisions all the time, which practically can be difficult. So if for example, you've got one attorney who lives on one side of one part of country and you've got another attorney who lives in another part of country, it may not be that easy to, you know, get the two of them together so that they can sign a document together. So you need to think about that practically. How is it going to work if we require them to jointly make those decisions? And are we really really almost defeating the object of having the opa in those circumstances? So you may sometimes do it. So it's joint and several so they can make decisions jointly, but it can do separately and independently as well. But sometimes again as a way of providing that extra level of security and safeguarding it might be the applications are being made so that its joint in relation to some matters and several others. So for example, they are able to make Uh decisions independently up to say, I don't know £5,000. For example, anything above that, those decisions need to be made jointly by them. So those are similar discussions you would need to be having with your clients also when you would you wish when would your client wish for the L. P. A. To come into effect? So it's different for each help. LP as I mentioned, Saudi L. P. A. For property and financial affairs can be used as an ordinary power of attorney. So for example, if I was to have an L. P. A. Done for me for property and financial affairs and say I still have capacity but then I so for physical disability. So I'm unable to travel the way I used to. That's where once it's been registered, that could be used as an ordinary power of attorney to enable my attorney to make decisions and carry out steps on my behalf. Where I'm physically unable to do those steps myself any longer. But they're lasting power of attorney for uh, welfare cannot be used once. I've still got capacity. He's still got to be registered, but it can only be used once. Have lost capacity. Now when you're completing the LP, it's very important to have discussions with your client. Has to preferences and instructions, preferences are those matters which they would wish for the attorney to take into account and making decisions on behalf of the, of the donor instructions of those which are going to be binding upon the attorney and therefore, uh, those which the attorney would need to act upon. So some examples of uh, preferences, good beef blowers which relate to where the donor wants to live would like to live. For example, sold, for example, they prefer to continue to live at home as opposed to in a care home or nursing home, for example, who they would like the attorneys to consult in those suspicions. So it won't necessarily be binding upon the attorneys, but it's a preferences guidance charging clause for professional attorneys that may well be necessary in some cases. Uh and also you may find that some of these uh will take the form of instructions. So the charging clause for professional attorneys would take the form of an instruction, so that would then be binding upon the the attorney power to delegate investment management to discretionary fund manager. That again, could be an instruction requirement to keep accounts. Could be an instruction requirement to submit accounts to ordered by an account. Or the solicitor could be an instruction requirement to take advice on making specific decisions could be an instruction. So the certain things which the uh did owner cannot insist upon a bit more guidance. But many of these can take the form of instructions. So it's very important and to make provision for that. So giving you an example, if say lawyer was appointed as the personal and financial affairs attorney under the L. P. A. For the client, then they would wish to charge for their services in acting as a as a as an attorney. And that's where you'd wish for the professional charging clause to be made provided for in the L. P. A. So as to charge for that. So there's those provisions now when the L. P. A. Has been put together. Very important to ensure that as I say, there is the provision for signature sort of donor needs to sign first and the certificate provider confirming that they have known the donor for at least two years or more in the capacity. Or they are uh they are the certificate providers an expert, maybe a solicitor G. P. Otherwise and they will need to be certified as far as I can tell. The person is not subject to fraud or undue influence. And then there's got to be a signature by the attorneys as well. It's a very very important and the attorney and signing is confirming that they will be acting in accordance with the key principles under the M. C. A. Particularly acting in the best interests of P. It's very very important to ensure that those signatures are provided for and acted upon. Of course. Now as I mentioned when once that's done then then the L. P. A. Can then be registered. It could be registered immediately thereafter. But as I mentioned sometimes as an additional safeguard it may well be the case that notice is now giving to a third party for the purpose of consultation. So this is the L. P. Three notice as it's called. Uh So that if you have a situation where say you've got husband where he puts his wife done as the attorney. And many years later let's say they have a divorce and his former wife now she um he's now lost capacity. Let's assume the former husband. His former wife still has the L. P. A. Which was signed by her by uh husband and by the certificate provider. She still got the L. P. A. And let's say in that situation she tries to register it clearly if she's not going to be acting his bench interest and she shouldn't do so. But she may try and do so through fraud or certainly to take advantage of the situation. And that's why if you had a cert if if you had consultation provision or that in fact before she found it and registered it with the L. P. G. A. Certain personal person that needs to be notified first With the l. p. three. Then that person may then raise an objection to say actually we don't quite understand why his former wife is now applying given they are divorced and we understand that they've separated so we can't understand why she's applying. And that's where that objection made them potentially provide that level of of a protection for the Donna in those circumstances to prevent that L. P. A. From being registered. So that's the thinking behind this and there is a three week time period that's given to the person concerned to be able to raise any objection. Now there are advantages in registering the L. P. A. As early as possible. The EPA firstly cannot be used once even before it's been registered. So that's the first thing. That's the one advantage in getting it registered, particularly if it's the case that if it's not registered, it could take a while for the confirmation from the RPG that has been registered. And if the person doing that time has now lost capacity, the issue is what you're going to be doing in the meantime. So are you going to have to be applied to the court of protection for a one off declaration or deputy ship to enable decisions to be made? Was had you registered the LPGA sooner, you may not have been in that situation. The other advantage of registering early is that early registration can then reveal any mistakes that are made within the forms. And if the uh donor in that circumstance still has capacity of course then he can then go back to them and say look the RPG has returned. They have raised this as a query. And of course that can then be raised with the donor to enable any mistakes to be rectified in any queries that have been raised to them be drought within that way. So that's the other big advantage of registering sooner rather later. Of course. And the third reason is if there are provisions which the public guardian, uh the RPGS team office then consider ineffective then of course that can be dealt with sooner rather than later. So there are advances in that. Now when you are completing the welfare L. P. A. So for health and welfare, the L. P. One H. There are special conditions regarding that and that is, there is a specific provisions on that form as to whether permission needs to be given to the attorney to not require life sustaining treatment for a donor. And if that's the case, then that needs to be specifically provided for in the L. P. A. Without that being provided for the general authority that the donor has under the health and welfare L. P. A. Will not cover that. So that is a particular feature that needs to be then provided for on the L. P. A. If that's going to be necessary. Now this is where sometimes when you're involved in cases where there are health and welfare decisions or finance and personal welfare decisions that need to be made. There are sometimes question mark as to whether somebody does or does not have an L. P. A. So I've had situations where sometimes P. Is in hospital and decisions need to be made as to whether there is any particular um welfare decisions that have been made in terms of for example should they be resident in a care home? Should they have any for medical intervention? Who they have contact with? Whether they have a particular um vaccination or otherwise or whether they have any particular likes a form of um medical intervention. And this is what it's very important to see whether or not there is already a preexisting LP and or circumstances. So how does one check to see if somebody does already have an attorney or deputy in these circumstances? And this is where there has been this recent guidance handed down by the RPG. So that's the office of the Public Guardian and put the link there for you. And this guidance was made available just last month on the 10th of june 2021. And what it provides for is this, it states that local authorities, the police and sometimes NHS staff can find out about the information um uh from the RPG in terms of the information that the RPG have on their registers in England and Wales. Uh and therefore this guidance helps you in trying to gain that information. So the Office of the Public Guardian does hold a register of everyone who has an L. P. A. Wondering power of attorney or deputy is acting for them. And therefore this link and takes you to the search. There's a form that you can complete, send that after the RPG and they will be able to then let you know uh fairly quickly as to whether or not that person does in fact have an L. P. A. Or E. P. A. Or deputy acting for them, at least that way. Then you can contact that person, see what the position is in so far as consenting otherwise to that form of medical intervention otherwise. So you can see the thinking behind this. Now, the other thing then is, as you can imagine, even before Covid, the onset of Covid in March 2020 there was a move towards increased digitalization across the court and tribunal service and that's continued to be the case. Obviously, Covid has almost led to a need to do that anyway going forward because of obviously the risk of the contamination through paper and also the increase use of working from home and through technology. But this is where the RPG has continued then to uh continue with its pledge to make more use of modernizing the LPS. So, uh the Minister of Justice and the RPG are currently still working together on the project to modernist AlPA's increased safeguards for a dollar name proof. Great use of registering LPS online, for example, in keeping LPS as affordable as possible, was ensuring the RPGS working in that way. So you can see there is no doubt will be a great use of digitalization going forward in. So far as LPS are concerned. Now, as I mentioned in the last session, sometimes it may well be the case that a person has not got an attorney or the attorney. They have, God doesn't wish to act or is unable to or is or is prevented from acting. And there's actually an application quarter protection for them to be removed because they're not acting or not intend to act in the best interests of P. And that's where decisions don't need to be made for P uh in terms of property and health, uh financial decisions or health and welfare both, then that's where they may well be a need for deputy ship. So it may well be necessary then appointed deputy in situations where of course P now lacks capacity to make a decision. Therefore not in a position to appoint an attorney under an L. P. A. They would need to be peace, impairment or disturbance in the function of the mind. So you're back to the functional diagnostic test again and you do need to look and ask yourself, are there any alternatives? Such as is the an attorney, for example, it doesnt attorney wish to act why they're not acting and so forth. And therefore we need to look at that. Uh And the appointment of welfare deputies is as you'll appreciate less common. And part of the reason for that is because if if if myself as a professional lawyer, um if I was a welfare Deputy for somebody and of course I'm entrusted with making decisions in terms of welfare decisions for that person. So in terms of medical intervention, in terms of consenting to treatment otherwise. But really I would need to defer to medical expert on that GP consultant and so forth. So the court will ask themselves if I was to apply for to become a welfare deputy, why is that necessary? Why should I be doing so? Um why why should I not really um leave for decisions in relation to be made by the medical personnel. And you remember in the last session, I did say that there are sometimes situations where welfare deputy could be appointed, particularly if you've got ongoing family disputes, for example, where decisions need to be made of a sustained period of time. So there could be some situations where it may well be necessary to have a welfare deputy appointed as well. And in terms of the welfare Deputy, this is where by the powers on The Section 16 and set out the type of things that the welfare deputy will be produced. So deciding where peace to live, for example, what contact they have with whom would specify. Persons prohibiting certain people from having contact would be giving or refusing consent to carrying out of any form of treatment, for example, uh in that regard. So you can see those are some of the aspects that that will be necessary there as well as like say specifically matters relationship where they live and also matters relationship, data, care, dress, diet, who they have contact with, matters related to medical dental. Should they have a particular form of dental treatment, for example, optical treatment if for example, they need uh it may be necessary for them to have a cataract operation. For example, are that they have it or not. Those kind of decisions could then be made by personal welfare deputies obviously by taking the necessary medical advice in the circumstances and in terms of the property and affairs deputy. Uh This is where by the powers under Section 16 and will extend to matters relating to the control and management of peace, property, for example, the sale exchange, charging gifting of their property, so selling the house, purchasing the property, selling business property, otherwise acquiring property on behalf of P for example, it could involve that carrying out of any professional trade on their behalf, dissolving a partnership, for example, ending the partnership generating a company, for example, it could be matters relations like we matters related to penguin ages dealing with tax returns. Those types of matters of course. So as you can see, it's very wide carrying out of any contracts on behalf of them, discharging of debts, executing a will for peace in those circumstances could sometimes be done. Look specifically at statutory will shortly okay. And conducting legal proceedings on behalf of P as well in those circumstances, in terms of who can actually be a deputy, a deputy appointed must be somebody who is 18 years old over. And in relation to trust corporations of trust Corporation could act in these circumstances. And it could be that that person is there for a member of a specified office or position in those circumstances, a person cannot be appointed as a deputy without their consent. Of course, they for an informed consent will be required in these circumstances. Often it will be a deputy, of course who will be applying to the court for the deputy ship order in any event. Uh In terms of how many people can act as a deputy, just like you've got with attorneys where you can have more than one person and often you will um deputies can also act jointly with all in practice. You tend to find that sometimes if a lawyer is appointed as a deputy, they do tend to act in their own capacity solely. But if you did have a joint deputy and of course that's possible and therefore that decision that needs to be made, again, just like the attorney and that should there be acting jointly on all decisions or is it joint? And several. Again, just like we spoke about earlier for attorneys or is it joined in respect of some decisions and joint and several another. So you can see it's the same discussions and considerations that needs to be given as to how joint deputies are going to be acting as in the same way that we discussed the position with joint attorneys and when the court is appointed deputy or deputies, the court at the same time can then decide whether to appoint other people to succeed. So you've got the replacement deputies as well in those circumstances the court and then deciding what circumstances they will be able to act going forward in that regard. Now, the other thing is the deputy, just like the attorney is treated as an agent on behalf of P so you wouldn't have peace assets um and liabilities putting your name so to speak. So you're not personally responsible in that regard. You acting as their agent and therefore dealing with their respective property, financial affairs and welfare decisions within the scope of your appointment in that regard, and therefore you can act within the scope of your order in that regard. So none of the property actually vests in the deputy as such. And therefore the deputies not personally liable for the debts and expenses of p in those circumstances. In terms of payment, the deputy is entitled to be reimbursed out of peace property for reasonable expenses and discharging their functions. And this is where the Quarter Protection Amendment provision, the Court of Protection practice directions of december 2017 satire specifically the fixed fees in acting as deputies and where in some situations it may be appropriate and permissible to um act outside to fix fees and for those costs to be assessed by the senior courts cost office, for example. Okay, so the remuneration would be out of peace property in those circumstances. Now the court can infer on a deputy decisions related to taking possession or control of property, for example, or investing in property if needs be. And some of the other provisions that will be set out when the court does appoint a deputy is in relation to require the deputy to for example filed reports to do audits and also to provide such reports. The Public Guardian as may be necessary in that regard. As I mentioned earlier, we do need to ask ourselves whether or not there was even a need for a deputy be appointed. So this is where as I mentioned earlier, when deciding on best interests, the court should have regard to whether a deputy d even needed. And if so. Bear in mind what we said earlier about the least interventionist principle, the restrictive process the judge needs to ask themselves do I actually need to appoint this deputy to continue to make ongoing decisions for P or is it better that I make a one off Ford or one off Declaration so that they can actually carry out this particular step? So that's where sections 16 requires the court then to have to regard to whether or not it should be limited in scope the authority and limited in terms of duration in that regard. So the court would need to ask themselves, is it better to make a single order in these circumstances or otherwise? Okay, so that's where that provision comes into play. Now, in terms of the procedure Then for becoming a deputy, this is where this is contained within part nine of the court protection rules of 2017. And the specific practice direction that relates to this is practice direction nine, which supplements part nine of the court protection roots. And therefore when you're applying for deputy ship, one form that you'll be completing in every case is a cop one form. The C. O. P. One form in duplicate. But then there's the the accompanying supporting information. Now if you're going for a uh property and Financial affairs deputy ship and it's the cop one A. That you're feeling as a supplement. But if you're going for the welfare deputy ship instead or alongside the the property and financial affairs then you're filling the other supporting information from which is not The Cop one B. Okay so it's the cop one and then you need to be doing the cop one A. And or the cop one B. If you're going for welfare deputy ship as well. In addition to that the judge needs to have sufficient information that P at that requisite time of course does not have capacity to make that decision. So that's where there's the assessment as to capacity formed a cop three that's required. And that assessment has the capacity could be done by an expert that could be a psychologist, psychiatrist, adults. So we should work uh independent social work, other experts. So you can see that capacity assessment would need to be done. And there's also the Deputies Declaration a cop four and also the fee and the deputy will be given a number of undertakings in in Deciding then to apply for deputy ship. Now, in terms of the fees, the fees have changed over the last few years in so far as applying for deputy ships and indeed for attorneys. So the fee to apply to the court protection was reduced to £365 from July 2019. This was as a result of the coffee's Miss Lane's a minimum rules applying appeal fees were also reduced as you can see. And also for the assessments as well. So you can see the fees have actually reduced uh in 2019 and Wendy deputy that is applying. So as we've seen there's a cop one cop one a one B. The Cop three. the capacity assessment and there's a cop for which is the the actual form that the deputy completes where they are confirming that they will be complying with the various duties are just upon them. And this is where there's a declaration that the deputy would be signing up to. And there's 17 personal undertakings that the deputy would have to be given as per to cop. For many of these are principles that really shouldn't cause any difficulty at all for the proposed deputy to sign up to where they're going to be acting in the best interests of P. In accordance with the Section one, M. C. A principle was acting in their best interest, taking at least restrictive principles in that regard, making sure that they're going to be acting with due diligence and skill, making sure that they will keep their own property separate from that of the uh the P in those circumstances. So really these undertakings shouldn't be undertakings that the proposed deputy has any difficulties in abiding by or agreeing to in that regard. Now, a few years ago we had a quarter protection case management pilot where the aim was to try and make sure that if they were contested applications, that doors were dealt with swiftly sort of court process and therefore delay was absolutely minimized. And that's where there were these three case management pathways that were put together. There was the So called Personal Welfare Pathway to Property and Affairs one and in a mixed personal welfare and property pathway so that depending on which application it was on which was contested, it would follow a different pathways so that there was judicial continuity. There was consistency in approach and delay was minimized and these pathways are now contained Within practice direction three be known as the case pathways. So there's that provision. Sometimes you do need to ask yourself when you are completing the cop form as to whether or not permission is even required from the court protection to apply to become a deputy. Now permission to make the application is not required if you apply for a property and affair so you can still fill in a cop one cop, one a submit that obviously with the other paperwork. But if you're seeking to become a welfare deputy that in fact even before you can progress, you do need permission of the court to even make the application. And as I mentioned earlier, the type of situations where you may wish to fly as a welfare deputy could be where there seems to be ongoing conflict between two and 4 more family members and therefore decisions need to be made in that regard. Now, as I mentioned earlier, there are other applications as well that was sometimes being made the Quarter Protection. Uh So sometimes there will be other applications that may well be pursued. So you got patches stretching 90 for example, uh where uh this could be where there's applications made by currently appointed deputies or attorney. So if a particular decision needs to be made by by a deputy which hasn't uh currently being made which isn't clear from the order. Uh then that's where you can then ask for specific orders to be made by the Quarter Protection. So this is the so called short procedure as it's called. So you still did a Cup one form the supplementary form this time, his cup one E. And you'll do a witness statement to pay the fee. And there's no Notice requirement on this one. So this would be used where it's specific matters related to maybe the sale of a property authority to disclose information for example, or if for example the uh deputy in this case wishes to make a gift or a loan for say tax purposes for example. And this is where you may use the short procedure for that. So therefore when it comes to gifts this um the provision that generally deep both attorneys and deputies are entitled to make gifts of charity if they are obviously the Attorney for property and financial affairs or the Deputy, the property and welfare, property and financial affairs Deputy. So they can make gifts for charity purposes. On customary occasions on christmas and birthdays, for example, two persons related or connected. It mustn't be unreasonable, the gift that are making having regard to circumstances and also the value of the estate. But sometimes it may be that they do wish to make gifts uh over and above. That may be large gifts for purpose of wheels and settlement for example, or sometimes for tax purposes. And this is where there could be formal applications made at a cop in that regard. So this is where the Cop one C can come into play and there could be provisions for that as well. And this is where the statutory will can come into play as well in that regard. Okay, so there is some very useful guidance On this. There's the gifts Public Guardian practice. Note of 18th of January 2018, for example, which provides some very useful guidance for professional deputies and attorneys on the rules about giving gifts on behalf of persons that the act for in those circumstances and the the situation surrounding gifting in that case, I have a look at that when you get a chance. Now, when it comes to statutory wheels, this could be relevant to S. A. P. Has now lost capacity. And this is where there is sufficient information before the court that it's felt that had they made a will, was there still of capacity, then they would have done so by leaving their assets, their estate to certain persons because they have now lost capacity that cannot be done and they effectively would then be dying intestate. But if it's felt that it's in their best interest to have a stash to will Prepared for them on the basis of what they would have put in the well had they had the capacity. And that's where such an application may well be made. So this package installation nine e which covers this particular provision and which national wheels. If such an application has been made, then the application must state that it's effectively world that's been prepared, which is regarded as as effectively for intensive purposes as being signed by the by p acting by the authorised person. It's got to be signed by the authorised person with the name of p independence of two more witnesses. So you can see it's just like it would be with a world that's put together, It must be a tested. It must be subscribe bottles witnesses in the presence of the authorized person and it needs to be sealed. So you can see the actual process of creation. The world will be very similar to what you would have to a world that's ordinarily prepared. But the important thing here is to be satisfied. The court that this is a world that's been put together for the benefit of p based on what would have been their best interests had to still have capacity and what they probably would have agreed to in those circumstances. Okay. And the final point that I wish to discuss with you today is the use of advanced decisions and how these are used to. These are particularly useful in medical treatment decisions sometimes loosely referred to as the so called living will. And these are made was somebody still got capacity but which will then come into play at the point when they have now lost capacity. So that's where it would become relevant. And these would be particularly useful in situations where people wish to refuse to have life sustaining treatment. So that your provisions for this is set out within the And the capacity for 2005, sections 24-26 and essentially advanced direct decision or grants directly. Whether it's sometimes referred to his way, Somebody would make this where now that they have reached 18 years of age, uh where they are effectively saying that I've got capacity. And what I'm providing for in this document is that at a later time in certain circumstances, if a particular treatment is proposed for me or carried out or continued, and if I was to lack capacity at that stage, then I'm making this declaration setting out whether I wish to continue with that treatment or for it to be seized or terminated in those circumstances. Okay, now, when people are therefore putting together an advanced decision, it could be made orally, but in practice, you find it's in writing, if it's going to involve life sustaining treatment, it must be in writing that provision, it would need to be signed, it would need to be marked and it needs to be witnessed. And like I say, they must have the capacity at the point at which they are making this advanced decision. So this could be very relevant where somebody puts this together at the point was they still got capacity. But if they were to later get to a situation where they get an incurable illness, they have an injury where they are saying life support and there is no prospect of recovery. That's where the advanced decision could make provision for them as to whether they would wish to then continue to continue to have the life support. Whether they would wish for that life sustaining treatment to be uh seized in those circumstances. The M. C. A. Principles are very relevant here in that regard. So the person is presumed to have capacity when they're making this. Unless it's proven otherwise. They must have capacity. And the code of practice then gives you some very useful guidance in so far as making sure that the principles in terms of capacity than a deer towards. Are these valid? Well, yes they are as long as it was appropriately executed. So um it won't be valid if firstly the proposed treatment is not a treatment specified sort of course will interpret these very strictly and will only be relevant to that particular form of treatment that's proposed the circumstances. If the circumstances in the advanced decision are absent, and of course it won't be relevant there, and if there are grounds for believing that uh maker didn't anticipate that particular point. So, for example, whatever the circumstances are, they don't quite fit in with what to make of the advance directly was thinking and therefore the cord steer away from a polling it. Or of course, if the maker has capacity to give a refuse consent and it won't be effective in that regard. And in terms of life sustaining treatment, this is defined under the Act on the Section four Subsection 10, which is um in the view of the person concerned providing health care necessary to sustain life. So, and if somebody therefore sees sees wants to seize having life sustaining treatment under the hospices of advanced decision, then it's got to be in writing that advanced directive, It's got to be signed, it's got to be witnessed and it's got to specify that it's to be applicable even if their life is at risk in those circumstances. Okay. And the format of the advanced directives, as many precedents available and the format normally as it needs to set out that there have been discussions between the person concerned and other agencies or the persons whether it's through there GP. Otherwise, confirmation that the person has a capacity at the material time needs to emphasize when it's to apply to particular form of treatment which is to apply or to seize. It needs to set out the reasons why they want this, what their wishes and their reasons are for this nieces set out specifically life sustaining treatment if relevant who's to be consulted. So if there is a dispute as to whether it should be upheld or not who is to be consulted, a member of family to GP other persons, and it's got to provide provisions for signature and also attestation. Some of the things you can't use an advance directive forward to authorize euthanasia in terms of assisted suicide or active euthanasia to basically provide any form of medical intervention, the primary purpose being to bring about death. So it cannot be used under any circumstances to authorize that. But it could be used to seize Life sustaining treatments or two withdraw life support. For example, it can't be used to demand particular types of care or to provide for refusal of food and drink by mouth. It can't be used to refuse comfort measures or refusal a basic nursing care, and you can't use it to refuse treatment for mental disorder for somebody who's detained under the Mental Health Act. So you can see there are limitations with this. And if there is a dispute over whether the advanced directive is to be applicable or not, this is where the court in the meantime, can make declarations, enabling that former treatment to continue. And even if there is a dispute over it of course, and then make Off 1 1 Off declarations. And with a view to determining its validity and applicability in that regard. So you can see the powers of the Quarter Protection insofar as that's concerned. Okay, so that then brings this second session to an end. So you can see, I've spent a fair bit of time on this second session looking at the position with L. P. A. S. We've looked at the position with advanced directives. Uh we've looked at the position with deputy ship and also statutory wheels. So you can see in conclusion the Quarter Protection, it's a vast area of large covers a various elements of um not only providing the necessary safeguards but also providing application to be made to the Quarter protection, whether it's for deprivation of liberty authorizations, whether it's authorizations relating to deputy shin and and so forth, and therefore you can see that this is a growing area and therefore one that is very, very important for lawyers to be familiar with. And I thank you very much indeed for listening. I hope that's been a useful session for you and I'll speak to you next time. Thank you very much. Bye for now.
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