www.asb-law.comPlanning for the Future: Court ofProtection and Mental Capacity Act issuesGlen Miles - Solicitor and Court ...
www.asb-law.com- The impact of Acquired Brain Injury -decision making- The Mental Capacity Act 2005 (“MCA”) -options in de...
www.asb-law.comThe impact of an ABI – decision making• ABI is a form of loss or bereavement for the family as wellas the i...
www.asb-law.comThe impact of an ABI – decision makingWhat decision is being made?- manage finances- make a Will- consent t...
www.asb-law.comMCA – Options for decision making- Passed in 2005 in the run up to the General Election- Came into force on...
www.asb-law.comMCA - Options for decision makingIndividualIndividualCapacityCapacityLasting Power of Attorney(Financial or...
www.asb-law.comMCA - Options for decision making- Key presumption of capacity – MCA only comes into effect ifa person is s...
www.asb-law.comMCA - Options for decision making5 Guiding Principles of the Act:- Presumption of capacity - lack of capaci...
www.asb-law.comPowers of Attorney and DeputiesFor an LPA the Donor must understand:- the scope and terms of the Power- the...
www.asb-law.comPowers of Attorney and DeputiesDeputyship:- Formal process of appointing deputy to make decisionswhere urge...
www.asb-law.comPowers of Attorney and Deputies- Financial deputies have to give security to cover theiractions- Governed b...
www.asb-law.comPlanning for the future – the cost of careClient allowed to retain £22.30 per week income thereafterapplied...
www.asb-law.comPlanning for the future – managing other assetsIndividualAbsolute gift Gift into TrustAssets assessed Will ...
www.asb-law.comAssessing CapacityKey points for consideration:- What decision is to be made and what test applies- Work wi...
www.asb-law.comAssessing Capacity- Doctors and healthcare professionals are not responsiblefor assessing capacity - it is ...
www.asb-law.comProceedings in the Court of ProtectionFurther information can be found at the following sources: -http://ww...
www.asb-law.comProceedings in the Court of ProtectionThank you for your time - any questions?glen.miles@asb-law.comjane.sc...
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Court of Protection and Mental Capacity Act issues - Planning for the Future

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The impact of Acquired Brain Injury - decision making. The Mental Capacity Act 2005 (“MCA”) - options in decision making. Powers of Attorney and Deputies. Planning for the future.

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Court of Protection and Mental Capacity Act issues - Planning for the Future

  1. 1. www.asb-law.comPlanning for the Future: Court ofProtection and Mental Capacity Act issuesGlen Miles - Solicitor and Court of Protection DeputyWednesday 19th June 2013
  2. 2. www.asb-law.com- The impact of Acquired Brain Injury -decision making- The Mental Capacity Act 2005 (“MCA”) -options in decision making- Powers of Attorney and Deputies- Planning for the futureAgenda
  3. 3. www.asb-law.comThe impact of an ABI – decision making• ABI is a form of loss or bereavement for the family as wellas the individual• Rehabilitation is enhanced by starting early and continuingsupport coupled with as much independence as appropriate• We all make decisions every split second:Number and type of decisions multiplied byOur individual characteristics multiplied byTypes of injury and effects of injury equalVast number of permutations faced every day
  4. 4. www.asb-law.comThe impact of an ABI – decision makingWhat decision is being made?- manage finances- make a Will- consent to treatment- DOLS- conduct litigation- enter into contracts- marry- make a gift- vote- divorce- have a relationship(including sexualrelationships)- numerous others
  5. 5. www.asb-law.comMCA – Options for decision making- Passed in 2005 in the run up to the General Election- Came into force on 1st October 2007- Statutory basis for capacity issues and consolidated law- 5 Guiding Principles paramount- Delegated decision making via attorneys and deputies
  6. 6. www.asb-law.comMCA - Options for decision makingIndividualIndividualCapacityCapacityLasting Power of Attorney(Financial or Health) or GeneralPofA (Financial only)Lasting Power of Attorney(Financial or Health) or GeneralPofA (Financial only)If LPA fails orGPA capacitylostIf LPA fails orGPA capacitylostCourt of Protectionappointed DeputyCourt of Protectionappointed DeputyIncapacityIncapacityNB: appointees
  7. 7. www.asb-law.comMCA - Options for decision making- Key presumption of capacity – MCA only comes into effect ifa person is shown to lack capacity- Capacity is decision specific – meaning a person may havecapacity to make some decisions but not others- Applies to all financial, health and personal welfaredecisions of those temporarily or permanently lacking incapacity to make the relevant decision- Any decision taken must comply with the Act, Code ofPractice and Best Interests test
  8. 8. www.asb-law.comMCA - Options for decision making5 Guiding Principles of the Act:- Presumption of capacity - lack of capacity must be proved- Support individual - facilitate decision making by person- Unwise decisions - are our right and not by itself evidence- Best Interests - any act or decision must be made with thebest interests of the person in mind- Least restrictive option - examine if an outcome can beachieved in an alternative and less restrictive wayThe MCA and Code of Practice sets out factors and tests.
  9. 9. www.asb-law.comPowers of Attorney and DeputiesFor an LPA the Donor must understand:- the scope and terms of the Power- the extent of the Power and ability of the attorney to act inplace of the donor- that the Power will last if the donor loses capacity- that if incapable the Power will be irrevocable without theconfirmation of the Court of Protection- Donor chooses attorneys, extent or limit to powers and otherterms – freedom of choice or scope for abuse?
  10. 10. www.asb-law.comPowers of Attorney and DeputiesDeputyship:- Formal process of appointing deputy to make decisionswhere urgent authority required or prolonged incapacity- Requires form COP3 Medical Certificate for the Court toconsider granting authority or authorising an act- More likely to have a financial deputy appointed rather thana health and welfare deputy- Health and welfare decisions are more likely to be singleacts rather than general authority except in more severecases
  11. 11. www.asb-law.comPowers of Attorney and Deputies- Financial deputies have to give security to cover theiractions- Governed by all principles of MCA and Code of Practice- Authority set out by Court order, may be wide or restricted- Professionally regulated deputies likely to be granted widerauthority than lay deputies- Further authorities / applications may need further orspecific medical evidence (statutory wills, gifts etc)- An order does not prevent individual making decisions
  12. 12. www.asb-law.comPlanning for the future – the cost of careClient allowed to retain £22.30 per week income thereafterapplied generally towards cost of careAssets over £23,250 considered for full cost of care fees(limited exemptions)Sliding scale between £23,250 and £14,250 for contributionto feesLess than £14,250 is full state funding thresholdMore punitive than inheritance taxTrusts will protect assets although only for othersChanges coming but limited
  13. 13. www.asb-law.comPlanning for the future – managing other assetsIndividualAbsolute gift Gift into TrustAssets assessed Will or lifetime Trustfor care and benefitsOnly income or nothing assessedManagement of affairsLPAs / Deputy Only personal assets managed
  14. 14. www.asb-law.comAssessing CapacityKey points for consideration:- What decision is to be made and what test applies- Work with fellow professionals to establish capacity- If capacity is lacking choice of deputy / attorney is importantand nature of order / power- Deputyship is an on going process and will requireconsiderable administration especially where significantassets or compensation are involved- Attorneys have less hands on regulation
  15. 15. www.asb-law.comAssessing Capacity- Doctors and healthcare professionals are not responsiblefor assessing capacity - it is the individual wishing to makethe decision- Medical evidence is a key element of the assessment ofcapacity- Understand the test of capacity for the decision in question- Consider the person, their social / economic issues,background, values, preferences and culture- Skills - do, refer, or ask for the Court Special Visitor
  16. 16. www.asb-law.comProceedings in the Court of ProtectionFurther information can be found at the following sources: -http://www.direct.gov.uk/en/Governmentcitizensandrightshttp://www.bma.org.uk/ethics/consent_and_capacitywww.asb-law.com
  17. 17. www.asb-law.comProceedings in the Court of ProtectionThank you for your time - any questions?glen.miles@asb-law.comjane.scott@asb-law.com01622 656556
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