Code of Practice - Mental Capacity Act 2005
5 key
principles:
1) Presumption
of Capacity – with the introduction of a new functional test for determining
capacity
2) Individuals
should be supported to make their own decisions as far as possible
3) Decision
Specific Capacity - we can all make unwise or eccentric decisions without being
considered mentally incapacitated.
4) Best
Interests – all decisions must be made with the best interests of the person
making the decision.
5) Decisions
should be the least interventionist/restrictive to the individual as possible.
People under a
duty to have regard to the new Code of Practice:
-
Professionals (such as Doctors, nurses and social workers or anyone getting
paid for the work they do)
-
Attorneys
-
A Court
Deputy
-
Family and
unprofessional carers should also be encouraged to familiarise themselves with
the Code.
The present situation :
An Enduring Power of
Attorney (“EPA”) is a legal process in which you, sometimes referred to as a
‘donor’, legally authorise one or more people, your ‘attorneys’, to manage your
financial affairs and property when you consider that you are unable to do so.
You can specify whether they must act jointly or whether they can act
independently.
The EPA can have immediate
legal effect which means that your attorney(s) can manage part or all of your
financial affairs for you, or you can continue to manage them yourself while you
are able to and subsequently hand over responsibility to your attorney(s) at a
later date. In the event that you become mentally incapable, your attorney(s)
will be under a duty to register your EPA with the Court of Protection and if
their application is successful you will not be able to revoke the EPA unless
you regain mental capacity.
The scope
of EPAs is limited to the management of finances and property only. These will
be replaced by new Lasting Powers of Attorney and although existing EPAs will
still be valid from 1st October 2007 you will not be able to create
new EPAs after this date. Instead, you will have to follow a new, more
comprehensive and inevitably more expensive procedure to make a Lasting Power of
Attorney (“LPA”). Similarly, if you have an existing EPA it will not be possible
to convert it to an LPA.
The
Fallback Position: Receivership
At the present time if you
have not made an EPA and you become mentally incapable of managing your
financial affairs, then it may be necessary to appoint a Receiver to manage
them. This is done through the Court of Protection.
The Court of Protection
is an office of the supreme court with jurisdiction in England and Wales. Its
function is to protect the finances and property of people who are mentally
incapable of dealing with their own affairs however it will be abolished on 1
October 2007 when the new Court of Protection is introduced.
The old legal system - Enduring Powers
of Attorney
New situation - Lasting
Power of Attorney
The new LPA process
Examples of when LPA may apply
Your questions
If we can
help you with an enquiry on this specific area of law - please contact us today
for a free initial consultation.
Email: info@winstonsolicitors.co.uk
Or telephone us on 0113 268 8898
to speak to a specialist solicitor.
If you are calling from outside
the area, use lo-call 0845 890 2277. We are open Monday to Friday, 8.30am to
5.30pm.
We look forward to working with you as
a Winning Partnership.
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