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LASTING POWERS OF ATTORNEY Can only be used when donor has lost capacity
Preliminary Issues Attorneys
Mental Capacity Need not have any legal qualifications
MCA came into force on 1/10/07 Donor needs to choose someone they can trust
S2(1) MCA ‘ a person lacks capacity in Over 18
relation to a matter if at the material time he is In P&F LPA
unable to make a decision for himself in o not an undischarged bankrupt or subject to
relation to the matter because of an impairment a debt relief order
of, or disturbance in the function of, the mind o Trust corp can be appointed
or brain’ o Solicitors can be appointed
1) Is there an impairment of, or a disturbance in the How will they act?
functioning of, the mind or brain? If more than one, they will need to decide if
MCA sets out examples i.e.: they will act jointly, jointly and severally or
o Dementia jointly in some and severally in others
o Concussion after head injury o Where jointly, all of them must agree every
o Severe learning difficulties decision
o The effects of drug and/or alcohol o If one no longer able to act, then all of
abuse jointly appointed are now unable to act (so
Medical evidence is required should appoint a replacement)
2) is the donor unable to make a decision due to the Where J&S can act together or on own, if one
impairment/ disturbance? can no longer act, others can continue to act
Only relevant if, despite taking all practicable If D appoints more than one but doesn’t state
steps to help the donor make the decision, the how, they will act jointly
donor is unable to make the decision Notified Persons
The decision the donor needs to be able to D has ability to choose to notify people of an
make is whether or not they should make an app to register the LPA
LPA o Such people cannot be any attorney’s or
Def of ‘unable to make a decision’ is in s3(1) replacement attorneys
a. To understand the information relevant Notice state name of D and donor
to the decision
b. To retain that info Certificate provider
c. To use or weigh that info as part of the LPA’S have to inc a cert confirming:
process of making the decision; or a. Donor understands both the scope and
d. To communicate his decision (talking, purpose of the lPA
sign language or any other means) b. Neither fraud nor undue pressure has been
If donor is able to retain info for only a short exerted upon the donor to make the LPA
period, that does not mean that he is usable to c. There are no other issues that would
make a particular decision (s3(3)) prevent an LPA from being made
Provider must be over 18 and can be anyone
Types from:
Property and Financial Affairs LPA 1. Someone who the donor has known
Relates to donors property and financial affairs personally for a period of at least 2 years
Donor is able to limit the scope of the before the LPA is signed
attorney’s power by expressly stating 2. Someone who the donor considered has
restrictions the required expertise or personal skills
Such an LPA can be used even though the needed to be able to provide the cert.
donor has not lost mental capacity, if they do person under this class does not have to
not want this can specify in LPA have known the donor for 2 years
Health and Welfare LPA I.e. medical professional
Health and welfare Donor or attorney’s family, attorney, employee
Attorney cannot make decisions regarding life or business partner of D or A, owner, manager,
sustaining treatment unless LPA specifically director or employee of care home where D
allows lives cannot give
, Usually D’s S ATTORNEYS AND THEIR DUTIES
Drafting LPA General
FORM LP1F- P&F LPA Donor’s Capacity
FORM LP1H- H&W LPA Under s1(2) MAC there is a presumption in
Accessed on OPG website and can be favour of capacity
completed online or byy hand but will need to A does not need to involve a medical
be signed by hand professional when assessing the donor’s
1. Contains D’s personal details, namely, full title, capacity
DOB and address Before do act, need to have a reasonable belief
2. Details of the A’s, namely, title, full names, that the donor does not have the mental
DOBs and addresses capacity to make the decision (s112 MCA)
3. Allows D to choose how they want their A’s to o What needs to be determined is whether or
make decisions not the donor has the necessary mental
4. Optional and only completed where D wishes capacity to make a specific decision at the
to appoint replacement A’s time when the decision needs to be made
5. Allow D to choose when LPA can be used (s2(1) MCA)
6. Optional and only completed where D wishes Disagreements between Attorneys
to notify people of app to register Speak w/ attorney concerned
7. Optional and only completed where D wishes If that does not work, should contact the OPG
to inc preferences and/or instructions to A If A wants to challenge a decision being made
8. Info D should read by another attorney, need to evidence they are
9. D signs in front of a witness not acting in the donor’s best interest
- over 18 Payment
- cannot be A or replacement A Any out out of pocket expenses, such as,
10. Completed by cert provider postage or travel expenses, which they
11. A signs in front of witness attorneys incur as a result of acting, reimbursed
- cannot be D A professional and charge for their services
- can be another A
- over 18 Duties
12. Application to register LPA begins 1) Terms of LPA
- either D or A can apply D can restrict the scope in LPA
- if not going to be registered soon after A under P&FA LPA cannot make decisions
created, s12-15 left blank relating to someone’s health ad welfare, unless
13. D choose who OPG should correspond w/ they have been appointed as an attorney under a
14. Relates to app fee H&W LPA
15. Person who is applying for LPA to be Can apply to the Court of Protection if they
registered signs think that they need more powers
2) The Stat Provisions of the MCA and MCA
Registering LPA Code of Practice
Registered by either D or A The following 5 principles are contained they
Current fee is £82.00 are:
At any time after they have been signed S1)
LPA’s must be registered before they can be ‘(2) A person must be assumed to have capacity
used unless it is established that he lacks capacity’
- health and welfare can only be used if donor (3) a person is not to be treated as unable to
has lost mental capacity, even if it has been make a decision unless all practicable steps to
registered w/ OPG help him to do so have been taken w/out
success’
(4) a person is not to be treated as unable to
make a decision merely because he makes an
unwise decision’
(5) an act done or a decision made, under this
Act for or on behald of a person who lacks
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