www.hartbrown.co.uk distinctly better. alyson coulson partner trust & estates department

www.hartbrown.co.uk

Distinctly Better

www.hartbrown.co.ukwww.hartbrown.co.uk

Alyson Coulson

PartnerTrust & Estates Department


Get proper advice! This talk is for general information only.

They are general thoughts and principles and should not be relied on for your own purposes as everyone’s circumstances are different.

Before taking any action, you do need to consider taking proper independent legal advice, which will address your particular circumstances in respect of the matters discussed.


About Hart Brown

1. One of the largest legal practices in

Surrey

2. Founded in 1919

3. 6 offices: Woking, Cobham, Cranleigh,

Guildford, Godalming and Wimbledon

Village

4. 15 Partners – total 100 staff


About our Legal Departments

Commercial business

Commercial property

Residential property

Family

Dispute resolution

Trust & Estates


Lasting Powers of Attorney

What are they?

Powers of attorney

Enduring powers of attorney

Lasting powers of attorney

.... and if you don’t make provision?



The Alternative

Appointment by the Court of Protection

Deputyship

Who applies?

Costs

Restrictions – acting on behalf of the Court

Accounts



2 Parts

Property and financial affairs

Health and welfare




Buying and selling property

Operating bank accounts

Dealing with investments

Tax affairs, claiming benefits



Health and Welfare

Where to live and who to live with

Day to day decisions, diet, dress

Medical examination or treatment – refusing/consenting



Health and Welfare

Who the donor has contact with

Assessment for and provision of community services

Arrangements to facilitate dental or medical treatment



Health and Welfare

Complaints about the donor’s care

Whether the donor should take part in social or leisure activities, education or training

Personal correspondence and papers



Health and Welfare

Rights of access to personal information (e.g. medical records)

Life sustaining treatment-specific question, witness required

Advance decisions v LPAs



The Process

Take instructions

Draw up and sign the document

Certificate – skills or knowledge based, 1 or 2 providers

Attorneys sign

Register the LPA



Drawing up the document

Appointment – how many Attorneys?

Joint or joint and several? or both!

All property and affairs?

With restriction?

Dialogue boxes



When does it come into use?


Health and welfare



Checks and balances

Choice of attorney

Certificate/s

Storage of document

Registration

The register



Registration process

Notice

Application

Registration

The attorney can then assist

Role of the Court of Protection


Practical issues

When will you be asked to work with us as lawyers?

Assessment of mental capacity

Completion of formal forms for the Court

Acting as witnesses, expert witnesses or certificate providers


When might capacity assessments be required?

Making a will

Making or registering a power of attorney

Revoking a power of attorney

On application for deputyship – capacity to manage financial affairs

Various others?


Solicitors instructing doctors

Do not assume expertise in these matters

Quality of instructions = quality of advice

Be clear about what client wishes to do

Inform and explain (in clear and simple terms) the legal test to be applied

Provide all relevant information

Confirm the standard of proof

Reminder that challenge is possible


Doctors receiving instructions Decline if insufficient experience

Request more information if required

Details of test of capacity as required by law

Why opinion is sought and effect on your patient

Details of the patient’s property, affairs and family background if relevant to test

Is the matter likely to be disputed?


Doctors receiving instructions

Be specific – reports lacking details, diagnosis and reasons will be of little value

Your report could significantly affect the patient’s autonomy to make decisions

Your report could allow the patient or a third party to carry on doing something prejudicial to the patient

You may need to support your report in Court.


Witnessing documentsWhy do we ask – the “golden rule”

Kenward vs Adams (1975)

Where a will has been drawn up for an elderly

person or someone who is seriously ill, it

should be witnessed or approved by a medical

practitioner.

It is assumed that the doctor will have made an

assessment of capacity.


To assist or not with a request to assess capacity?

What is the policy of your surgery?

Take advice from your professional body

Do you feel confident to assist?


Who should assess capacity? The individual who wishes to make a decision on behalf of an incapacitated person is responsible for assessing his or her capacity.Where consent to medical treatment is required, the health professional proposing the treatment needs to decide whether the patient has the capacity to consent. The reasons why capacity is in doubt should be recorded in the medical record, as should details of the assessment process and its findings. The more serious the decision, the more formal the assessment of capacity is likely to be, and, where appropriate, it might be advisable to refer to a psychiatrist or psychologist for a second opinion.

BMA Guidance


How do I assess capacity?

The test is functional - focusing on a decision making process

Does the person have “an impairment of, or a disturbance in the functioning of, the mind or brain” which may affect their ability to make the decision in question?


How do I assess capacity?

Under the MCA, a person is regarded as being unable to make a decision if, at the time the decision needs to be made, he or she is unable:

to understand the information relevant to the decision

to retain the information relevant to the decision to use or weigh the information; or to communicate the decision (by any means).

Where an individual fails one or more parts ofthis test, then they do not have the relevantcapacity and the entire test is failed.


How do I assess capacity? Consult family and friends if appropriate for

background information.

Don’t discriminate or assume based on age, appearance, their condition or behaviour

Accept that capacity may fluctuate and that advice or assistance may be required from others more experienced or qualified.


To assist or not?Only do it if….

• You have formally assessed capacity as per your professional guidelines.

• You are satisfied that you can make a decision about capacity made on reasonable belief backed by objective reasons.

ALWAYS

• Make a formal record


Assessment of capacity in treatment decisions

When you need to make your own assessment of a patient’s capacity to receive treatment.

What do you need to bear in mind?

Is the appointment of an Independent Mental Capacity Advocate (IMCA) required?


What are the basic principles of the Act?

Presumption that there is capacity. Proving otherwise falls upon the challenger.

Maximise decision making capacity.

Freedom to make unwise decisions

BEST INTERESTS

Is there a less restrictive alternative?


Best Interests – what does it mean?

All decisions taken on behalf of someone who lacks capacity must be taken in their best interests.

Not necessarily a decision based on what they would want although this must be taken into account.

Taking into consideration all relevant factors, the most objective test possible.


Best Interests – what do I take into account?

• The views of the patient as far as they are able to express them

Can it wait until capacity is restored?

Past and present wishes expressed verbally or in writing? Is there an LPA, an Advance decision?

Beliefs or values

The effect on other people if the patient would have considered this.


Best Interests – what do I take into account?

The views of others close to the individual – family, friends, carers.

The views of those previously nominated – attorneys or deputies.

The exception – a valid and applicable advance decision refusing medical treatment made when they had capacity.


IMCA

An Independent Mental Capacity Advocate.

Appropriate if you cannot obtain the views of others close to the individual suitable to help make decisions about medical treatment such as family, friends, carers.

If in serious doubt as to the best course of action to take, healthcare professionals should refer to The Court of Protection.

Certain decisions MUST always be referred to the Court – sterilisation, withdrawal of nutrition/hydration in PVS cases.


Questions?

Alyson CoulsonPartner with

Hart Brown Solicitors


Distinctly Better

www.hartbrown.co.uk distinctly better. alyson coulson partner trust & estates department

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