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Limits of Enduring Powers of Attorney

MartinWL

Registered User
Jun 12, 2020
1,014
0
In your first post you say 'the OPG guidance clearly states that an "Enduring" attorney cannot decide where the donor should live'. I had a look at the guidance and it says 'the attorney has no legal right to decide where the donor lives'.

Having spent several years writing government policy in an unconnected field, I think that word 'legal' in the guidance is quite important.

I don't know if relevant legislation says there's no 'legal right' but as this is guidance, it suggests that the position is not beyond question: it's a different matter if relevant legislation states there's no 'right' for a donor to decide, it then would be beyond question. An attorney who was challenging the authority of any other party trying to force a donor into a care home would want a clear explanation from that party as to where its legal authority lay in relevant legislation i.e. Act of Law, Part number & section number. For completeness the attorney would also want written confirmation from the other party that it would meet all of the relevant care home costs; such confirmation may or may be obtained but forewarned is forearmed.
There is a lot on this and I am going to be selective here. Sad person that I am I spent a few engrossing minutes reading the thrilling text of the Enduring Powers of Attorney Act 1985, which, although repealed, set up EPAs in the first place. Under schedule 5 of the 2005 Mental Capacity Act we read "Any order or determination made, or other thing done, under the 1985 Act which has effect immediately before the commencement day continues to have effect despite the repeal of that Act.", in other words, EPAs made before the change of law continue to be valid. Alas I didn't get all that far because what the 1985 Act has to say is not particularly clear. I think the key bit is this "An enduring power may confer general authority .... on the attorney to act on the donor's behalf in relation to all or a specified part of the property and affairs of the donor or may confer on him authority to do specified things on the donor's behalf and the authority may, in either case, be conferred subject to conditions and restrictions."

The fascinating question is, it seems to me, what is meant by "affairs". So @Phil2020 I think you're right that there is a shade of doubt here. Perhaps the definition of "affairs" has never been tested in court? In everyday terms affairs seems pretty wide ranging to me. Where I choose to live is my affair, surely? And if I were to lose mental capacity, wouldn't it be my attorney's affair? Clearly if there are special terms in the EPA they apply, but usually there are none or they just cover things like who stands in if the attorney is unable to act. I am not sure that you can claim a moral right but official guidance certainly can be challenged and if I were in dispute with some officialdom or other I would think it arguable that "affairs" is more wide-ranging than just money and property. It seems a bit much for the OPG to state that an EPA attorney can't decide where the person lives - the law doesn't say that in black and white although there might be a decided case of which I am unaware. I doubt that "affairs" includes health decisions though, whether to have my leg put in a splint or amputated is a bit too specific to be "affairs" I suggest. Unfortunately for those of us who like these legal conundrums the number of donors of EPAs is dwindling and this issue is never likely to be argued before the Court of Appeal!! (Thank goodness, I hear some people saying).

On your point about people being forced into a care home I don't think this can happen unless:
* the person doing the forcing, perhaps the local authority, has obtained deputyship from the Court of protection
* the local authority has issued a Denial of Liberty Safeguards order
Otherwise this would amount to kidnapping.

If there were a situation in which the local authority believed the person had to go into a care home and there was an Enduring attorney who refused to agree on the donor's behalf the local authority would have to apply to the Court of Protection which would decide the issue and might award deputyship to the local authority and cancel the EPA. Basically the CoP over-rules everyone.

One other point about our hypothetical money-grabbing dentist friend, a medical professional determining "best interests" does have a duty under the 2005 Act to consult various people including carers, family et. although of course you can consult a person and then ignore what they think!!
 

Eogz

Registered User
Sep 9, 2021
21
0
I have POA,H&W and F&P.....but the SW informed me that if she assesses my husband and decides he has capacity,then the decision of where he stays rests with her...if she decides he hasn't capacity then I,as Attorney for H&W,can make the decision.So...I contacted my solicitor who informed that was correct! I then wanted to know what was the point of POA if it can be overidden,my thoughts were it's a legal document?Sorry no,she says,it can be overidden by SW or Dr's....so I contacted the Office of the Public Guardian,who issue the POA's...they informed meno,it CANNOT be overuled,it is a legal and binding document....check with the OPG...
Hi,
LPA and EPA powers only come into force when a person who needs to make a decision is deemed to lack capacity to make that decision.
The Mental Capacity Act states that each decision must be made on its own merit and an assessment of capacity made, assessments of capacity are decision specific and not universal.
This only in practice relates to the big decisions, moving somewhere else, serious medical treatment, care and support decisions...
So yes if someone is deemed to have capacity for a decision, it becomes their decision, the social worker can choose a home, but that person also holds the right to refuse or choose a different home and consequences of doing so.
Technically the social worker was right bit she/he was wrong to say that it becomes their decision, it becomes the person's decision when the have capacity.
When someone lacks capacity and a decision can't be reached or the person or family object strongly to a decision (again only for the big ones) the Court of Protection will have to make a decision on their behalf.

Hope that helps.
 

MartinWL

Registered User
Jun 12, 2020
1,014
0
Hi,
LPA and EPA powers only come into force when a person who needs to make a decision is deemed to lack capacity to make that decision.
The Mental Capacity Act states that each decision must be made on its own merit and an assessment of capacity made, assessments of capacity are decision specific and not universal.
This only in practice relates to the big decisions, moving somewhere else, serious medical treatment, care and support decisions...
So yes if someone is deemed to have capacity for a decision, it becomes their decision, the social worker can choose a home, but that person also holds the right to refuse or choose a different home and consequences of doing so.
Technically the social worker was right bit she/he was wrong to say that it becomes their decision, it becomes the person's decision when the have capacity.
When someone lacks capacity and a decision can't be reached or the person or family object strongly to a decision (again only for the big ones) the Court of Protection will have to make a decision on their behalf.

Hope that helps.
All correct but I would like to add here that social workers do not have any legal right to make decisions about capacity as if they were judges. Of course they represent the local authority in most cases and may decide what the local authority is willing to fund. But it is not laid down in law who judges capacity and the family, if they know the law, may be far better able to judge it than a social worker who hardly knows the patient. As @Eogz says only the Court of Protection can settle a dispute and make a ruling, a social worker can't.
 

Lawson58

Registered User
Aug 1, 2014
2,520
0
Victoria, Australia
As an Australian living under a different system of PoAs, I am curious to know where next of kin fits into all this. We have had PoAs for years but even now although I don’t consider OH still has capacity, I have never had to use them so I assume that being next of kin gives me certain rights and responsibilities.

We have been through all sorts of medical issues from cardiac arrest to massive blood noses and his doctors are all happy to discuss things with me and I have signed consent forms on many occasions.

Reading this thread and others, this question of kinship intrigues me.
 

Cazcaz

Registered User
Apr 3, 2021
105
0
As an Australian living under a different system of PoAs, I am curious to know where next of kin fits into all this. We have had PoAs for years but even now although I don’t consider OH still has capacity, I have never had to use them so I assume that being next of kin gives me certain rights and responsibilities.

We have been through all sorts of medical issues from cardiac arrest to massive blood noses and his doctors are all happy to discuss things with me and I have signed consent forms on many occasions.

Reading this thread and others, this question of kinship intrigues me.
Next of kin can sign forms when the patient is unable through some (diagnosed or undiagnosed) medical condition. My father signed consent forms for my mother 10 years ago when she had a TIA and was conscious but incoherent.
But next of kin has no legal say in terms of organising a persons finances or where they live.
 

Eogz

Registered User
Sep 9, 2021
21
0
All correct but I would like to add here that social workers do not have any legal right to make decisions about capacity as if they were judges. Of course they represent the local authority in most cases and may decide what the local authority is willing to fund. But it is not laid down in law who judges capacity and the family, if they know the law, may be far better able to judge it than a social worker who hardly knows the patient. As @Eogz says only the Court of Protection can settle a dispute and make a ruling, a social worker can't.
Yes, you are right, the decision maker will usually make the assessment as they will be trained in making capacity assessments.
No they aren't a specialist authority on capacity assessments, but people who are tend to be an expensive option.
You can ask for a reassessment, but it would be another social worker, Dr or Consultant and only if you can show some doubt on the original one.
 

nitram

Registered User
Apr 6, 2011
23,220
0
North Manchester
The Court of Protection allows Social Workers to sign a COP3 assessment of capacity

"Part B. The practitioner will return the form to you or your solicitor for filing with the court.
• The practitioner may be a registered:
– medical practitioner, for example the GP of the person to whom the application relates;
– psychiatrist
– approved mental health professional
– social worker
– psychologist
– nurse, or
– occupational therapist

who has examined and assessed the capacity of the person to whom the application relates. In some circumstances it might be appropriate for a registered therapist, such as a speech therapist or occupational therapist, to complete the form"

 

Phil2020

Registered User
Oct 11, 2020
13
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@MartinWL - if you're trying to get a clearer understanding of the legislation the Explanatory Notes (that would have accompanied the Act on its passage through Parliament) may be helpful. You may already be familiar but, if not, such Notes are intended to set out, in a clear and concise manner i.e. in understandable English, the intentions and purpose behind each clause of an Act: they are authoritative. Similarly, Hansard is a written record of the Parliamentary debate. It is essentially a verbatim account of what ministers and MPs have said in relation to an Act during its passage. Again authoritative. Courts will sometimes look 'underneath' legislation, to these sources, if they too find - as you put it - there are 'shades of doubt' in the legislation, for 'pointers' as to interpretation.

As for "affairs", I doubt it's been tested in court because, as you suggest, it looks that that term has been used deliberately to allow an attorney's net to be cast widely. That is, if an attorney 'wants' to be responsible for a certain donor related act then he/she just works on the assumption that it is caught by (a donor's) "affairs" and the onus is on the opposing party to establish the negative.

Actually I think this is an interesting point. When I first read the OPG guidance that 'an attorney has no legal right to decide where a donor lives', my first thought was 'this seems most out of place'. It doesn't seem like guidance to me, more a statement of fact or an assertion. It appears to have no legal authority because it's in the guidance and I do wonder if it's in the guidance, in those terms, because it was inadvertently 'left out' of the Act and because, on first pass, it appears "affairs" - in the Act - may be construed as anything donor related. It may have been inserted in the guidance, in those terms, literally to scare off any attorney who thinks 'hang on, I can claim that right'.

Of course, this would all be redundant if the Act does simply state the attorney's rights as regards deciding where a donor lives. I had a very brief online look at small bits of the Act that I could access for free and saw a lot of 'subject to section X Y Z ...' qualifications as regards rights. To establish whether or not the Act itself prohibits an attorney from deciding where a donor lives or, alternatively, if it states who can decide where a donor lives, would take a proper bit of analysis of the Act in the round.
 

MartinWL

Registered User
Jun 12, 2020
1,014
0
The Court of Protection allows Social Workers to sign a COP3 assessment of capacity

"Part B. The practitioner will return the form to you or your solicitor for filing with the court.
• The practitioner may be a registered:
– medical practitioner, for example the GP of the person to whom the application relates;
– psychiatrist
– approved mental health professional
– social worker
– psychologist
– nurse, or
– occupational therapist

who has examined and assessed the capacity of the person to whom the application relates. In some circumstances it might be appropriate for a registered therapist, such as a speech therapist or occupational therapist, to complete the form"

Hi @nitram this is all true of course but only applicable to applications to the court of protection for Deputyship. Every decision has to be considered separately under the 2005 Act. If the decision is, say, whether to have carers four times a day, or twice a day, the family member organising it is just as entitled to decide as the social worker. The Act doesn't specify who makes which decision, which does create a few problems I am sure. But as POA for both my parents I would be telling the social worker that I was best placed to decide on their capacity because of my better knowledge of them, and I wouldn't let a social worker dictate their own views.
 
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MartinWL

Registered User
Jun 12, 2020
1,014
0
@Phil2020 I did read the 1983 Act, which is available online, and there was nothing at all in it as regards the attorney deciding where the donor should live, it is completely silent on that. I quoted previously the clause about "property and affairs" and there is no more said.

I did not look at Hansard or the explanatory notes. You're right that they might shed more light, and also I agree that a court might refer to them. The key evidence would be a decided case of course in the higher courts, but I don't have access to research tools for finding one if one exists.

In my experience in other fields government departments do sometimes try to use guidance to deal with things they forgot about when drafting regulations or Bills, and sometimes do go further than the law in guidance and whilst they usually try to say "you should eat porridge for breakfast" when they mean you have no obligation whatever to consume oats in the morning, but they wish you would, sometimes they use the word "must" incorrectly. There is a very famous example. A certain politician, last year, uttered the words "you must stay home" on television, but in fact at the time of speaking there was no such law, (it became law three days later). Government departments are not above such carelessness with the "m" word, either. So I could quite easily believe that the OPG guidance stating that an EPA attorney cannot decide where the donor lives is essentially a flight of legal fancy on their part that has never been tested in court.

If anyone reading this has a few thousand in the bank that they don't want we could get a QC to give a formal opinion. I won't hold my breath on that.
 

Lawson58

Registered User
Aug 1, 2014
2,520
0
Victoria, Australia
Next of kin can sign forms when the patient is unable through some (diagnosed or undiagnosed) medical condition. My father signed consent forms for my mother 10 years ago when she had a TIA and was conscious but incoherent.
But next of kin has no legal say in terms of organising a persons finances or where they live.
Thank you for that. It is very interesting how different things are.
 

Eogz

Registered User
Sep 9, 2021
21
0
Hi @nitram this is all true of course but only applicable to applications to the court of protection for Deputyship. Every decision has to be considered separately under the 2005 Act. If the decision is, say, whether to have carers four times a day, or twice a day, the family member organising it is just as entitled to decide as the social worker. The Act doesn't specify who makes which decision, which does create a few problems I am sure. But as POA for both my parents I would be telling the social worker that I was best placed to decide on their capacity because of my better knowledge of them, and I wouldn't let a social worker dictate their own views.
Hi,

Be very careful when dealing with this, these professionals are trained to assess capacity, an LPA isn't. The LPA only actually comes into force when someone has lost capacity, but it only relates to that decision.
Now, the issue you mention about where to live, care and support, serious medical treatment etc are all big see decisions and you as LPA have the right to act in your loved ones best interests, this might mean challenging the decision that the professional makes.
Then it is likely to go to the court of protection, which if you want legal representation for, could come at a cost (legal aid threshold is quite low). The only cost free legal representation is through DOLS soon to be LPS and a section.
You can't as LPA deny a capacity assessment, you can challenge it though.
I'm hoping I'm making sense.
 

MartinWL

Registered User
Jun 12, 2020
1,014
0
Hi,

Be very careful when dealing with this, these professionals are trained to assess capacity, an LPA isn't. The LPA only actually comes into force when someone has lost capacity, but it only relates to that decision.
Now, the issue you mention about where to live, care and support, serious medical treatment etc are all big see decisions and you as LPA have the right to act in your loved ones best interests, this might mean challenging the decision that the professional makes.
Then it is likely to go to the court of protection, which if you want legal representation for, could come at a cost (legal aid threshold is quite low). The only cost free legal representation is through DOLS soon to be LPS and a section.
You can't as LPA deny a capacity assessment, you can challenge it though.
I'm hoping I'm making sense.
A few things here. There is little reason why someone without formal training should not assess capacity by considering the four tests set out in the Act. Nothing very difficult there. Knowing the patient is likely to be a better qualification than anything else provided the law is understood. It isn't a difficult bit of law.

I disagree that an LPA can't deny a capacity assessment. They key point is that the 2005 Act doesn't specify who asseses capacity. It doesn't say that the person assessing capacity has to be qualified. It doesn't say that social workers are deemed to know best. My judgement is as good as anyone's in the absence of any law saying otherwise.

As you rightly say disputes may go to the Court of Protection. They don't get decided by social workers!
 

Eogz

Registered User
Sep 9, 2021
21
0
A few things here. There is little reason why someone without formal training should not assess capacity by considering the four tests set out in the Act. Nothing very difficult there. Knowing the patient is likely to be a better qualification than anything else provided the law is understood. It isn't a difficult bit of law.

I disagree that an LPA can't deny a capacity assessment. They key point is that the 2005 Act doesn't specify who asseses capacity. It doesn't say that the person assessing capacity has to be qualified. It doesn't say that social workers are deemed to know best. My judgement is as good as anyone's in the absence of any law saying otherwise.

As you rightly say disputes may go to the Court of Protection. They don't get decided by social workers!
The qualification to assess capacity will affect the big decisions and will also hold weight with the court.
I understand what you mean, but come from a place of concern rather than conflict on the matter.
You run the risk of being challenged on your authority as LPA via the Office of the Public Guardian, whether rightly or wrongly.
It's really easy for professionals to see family members acting with ulterior motives and this is a bias that you have to be clear to avoid, through evidence.
Making a decision to refuse to acknowledge a professionals assessment without going through the channel of challenging it officially may land you with more issue than you need.
My thoughts on the matter only of course.
 

MartinWL

Registered User
Jun 12, 2020
1,014
0
The qualification to assess capacity will affect the big decisions and will also hold weight with the court.
I understand what you mean, but come from a place of concern rather than conflict on the matter.
You run the risk of being challenged on your authority as LPA via the Office of the Public Guardian, whether rightly or wrongly.
It's really easy for professionals to see family members acting with ulterior motives and this is a bias that you have to be clear to avoid, through evidence.
Making a decision to refuse to acknowledge a professionals assessment without going through the channel of challenging it officially may land you with more issue than you need.
My thoughts on the matter only of course.
The risk you run is that you will be reported to the OPG as not acting in the donor's interests so of course it is vital to keep records and make sure everything that you do is in the donor's interests. The courts should take evidence into account rather than the qualifications of the person determining best interests. Indeed there are no qualifications.

We know from this forum that sometimes family members disagree or do not speak and that causes lots of problems. I think we will agree that a POA should keep records and be scrupulous in acting in the interests of the donor and nobody else. If you do that as POA you should be able to rebuff any criticism.
 

Kapow

Registered User
Nov 17, 2019
124
0
A few things here. There is little reason why someone without formal training should not assess capacity by considering the four tests set out in the Act. Nothing very difficult there. Knowing the patient is likely to be a better qualification than anything else provided the law is understood. It isn't a difficult bit of law.

I disagree that an LPA can't deny a capacity assessment. They key point is that the 2005 Act doesn't specify who asseses capacity. It doesn't say that the person assessing capacity has to be qualified. It doesn't say that social workers are deemed to know best. My judgement is as good as anyone's in the absence of any law saying otherwise.

As you rightly say disputes may go to the Court of Protection. They don't get decided by social workers!
I agree with you.To be honest,it seemed obvious to me that the SW dealing with my husband was either newly qualified or just plain stupid,and all she could do was repeat parrot fashion certain lines.I am aware that SW's would like a person to stay in their own home as long as is possible,and this tenet is the basis of all their actions it would seem.However ,as I kept repeating parrot fashion to her,nobody knows my husband better than me,and with respect,how can you make an assessment of capacity on a one size fits all set of questions?The SW seemed wet behind the ears to me...and when I met her for the first time for the Best Interest meeting I knew my suppositions were right.I have more experience of dementia and Alzheimers than she has,I would stake money on it,and as such,should be able to have the sway on the outcome.It was a while before that was forthcoming,but what a fight I had.