Transcript Employment Law Top Ten Developments

Distinctly Better
www.hartbrown.co.uk
Alyson Coulson
Partner
Trust & Estates Department
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www.hartbrown.co.uk
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.
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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
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About our Legal Departments

Commercial business

Commercial property

Residential property

Family

Dispute resolution

Trust & Estates
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www.hartbrown.co.uk
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?
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Lasting Powers of Attorney
The Alternative

Appointment by the Court of Protection

Deputyship

Who applies?

Costs

Restrictions – acting on behalf of the Court

Accounts
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Lasting Powers of Attorney
2 Parts

Property and financial affairs

Health and welfare
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Lasting Powers of Attorney
Property and financial affairs

Buying and selling property

Operating bank accounts

Dealing with investments

Tax affairs, claiming benefits
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Lasting Powers of Attorney
Health and Welfare

Where to live and who to live with

Day to day decisions, diet, dress

Medical examination or treatment –
refusing/consenting
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Lasting Powers of Attorney
Health and Welfare

Who the donor has contact with

Assessment for and provision of
community services

Arrangements to facilitate dental or
medical treatment
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Lasting Powers of Attorney
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
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Lasting Powers of Attorney
Health and Welfare

Rights of access to personal information
(e.g. medical records)

Life sustaining treatment-specific question,
witness required

Advance decisions v LPAs
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Lasting Powers of Attorney
The Process

Take instructions

Draw up and sign the document

Certificate – skills or knowledge based, 1
or 2 providers

Attorneys sign

Register the LPA
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Lasting Powers of Attorney
Drawing up the document

Appointment – how many Attorneys?

Joint or joint and several? or both!

All property and affairs?

With restriction?

Dialogue boxes
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Lasting Powers of Attorney

When does it come into use?

Property and financial affairs

Health and welfare
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Lasting Powers of Attorney

Checks and balances

Choice of attorney

Certificate/s

Storage of document

Registration

The register
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Lasting Powers of Attorney

Registration process

Notice

Application

Registration

The attorney can then assist

Role of the Court of Protection
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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
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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?
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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
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Doctors receiving instructions

Decline if insufficient experience
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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?
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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.
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Witnessing documents
Why 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.
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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?
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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
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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?
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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 of
this test, then they do not have the relevant
capacity and the entire test is failed.
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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.
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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
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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?
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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?
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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.
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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.
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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.
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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.
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Questions?
Alyson Coulson
Partner with
Hart Brown Solicitors
www.hartbrown.co.uk
www.hartbrown.co.uk
Distinctly Better
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