LOSING YOUR MARBLES.COM
Peter Edwards Law decided to launch this website to draw your attention to the importance of planning for your incapacity. If you don't plan ahead, if you lose the ability to make decisions for yourself, strangers could make your decisions for you. Many people do not realise that their 'next of kin' have no rights of decision making in English law over adults who lack capacity. It is not just us saying this, as you can see below. Much of our time is sadly spent trying to assist family members to sort out the mess when their loved one loses capacity and they have not planned ahead.
Peter Edwards Law is a very specialist law practice designed to help people prepare for possible incapacity.
LATEST NEWS
Plan for the future – choose your power of attorney
now, Statement by the Public Guardian Board, 2nd November 2009
The Public Guardian Board
(PGB) has called for every adult to actively consider having a Lasting Power
of Attorney in place. Speaking at the launch of their Annual Report, chairwoman
of the PGB Rosie Varley OBE said: “Preparing for the future is too important to
leave until the last moment. Knowing that a person you know and trust will take
care of your affairs, should you become incapable of doing so yourself, ensures
peace of mind for you, and avoids your loved ones having to go to court. Setting
up a Lasting Power of Attorney is now easier than ever. The Office of the
Public Guardian (OPG) had a difficult start, but this year we have witnessed a
marked improvement in performance, with the OPG demonstrating a willingness to
respond to feedback from customers and stakeholders and to address problems as
they become apparent. One of the results of this is the new Lasting Power of
Attorney forms that are easier to complete and cheaper to activate. It is
important that the OPG continues to raise awareness of the importance of LPAs
and I hope that as the number of applications increase, so the cost of
activating them can reduce. However, the OPG must ensure they have capacity to
deal with an increased workload, to ensure the recently improved service levels
don’t suffer.” The Board also announced it is looking to broaden its remit to
monitor the implementation of the entire Mental Capacity Act (MCA), including
by the Court of Protection and medical and health care practitioners.
Ms Varley said: “The
Mental Capacity Act is a ground-breaking piece of legislation that impacts on
every citizen and fundamentally alters the relationship between those providing
and receiving care. In its first year the Board focused on scrutinising the
OPG’s performance. This year we have widened our scope and started considering
how the provisions of the Act are being implemented on the ground to see
whether they are making a real difference to people’s lives. The Board has
maintained its interest in the Court of Protection, which has now transferred
to Her Majesty’s Court Service (HMCS). It welcomes HMCS plans to review the
Court of Protection’s administrative procedures, and encourages the prompt
implementation of any changes that are required to ensure that processes are
efficient and accessible, including through a reduction in fees for Court
services from HMCS.”
Every adult should
actively consider having an LPA. To start the move towards this ultimate
objective, the Board recommends the following:
· There needs to
be a concerted drive to raise awareness about the MCA and the systems it has
put in place to empower citizens and protect the vulnerable. A targeted effort
should be made to reach those most in need, for instance, those with variable
capacity or those who are at risk of losing capacity in the next ten years, or
those in high risk occupations.
· Access to the
benefits of the MCA should not be dependent on cost and the Board hopes to see
a further reduction in the cost of registration of an LPA as the volume of
applications increases. The Board encourages a mirrored reduction in fees for
court services from HMCS.
· Communications
with service users should remain a priority with improvements delivered across
all areas of activity. A planned and structured approach to communicating
effectively should be developed and realised by the OPG.
· The Department
needs to note the critical importance of the capability and stability of the
Office’s information technology systems to the service it provides.
· The findings of
the research commissioned by the OPG as part of the Review of the Mental
Capacity Act Implementation Project should be acted upon as quickly as possible
with the necessary resources being provided once actions are prioritised and
agreed.
· The various bodies and organisations involved in administering, implementing, and regulating the MCA should work together to champion the principles of the Act. The Government should examine a way to co-ordinate the relevant public sector bodies to make a real impact.
Lord Chancellor responds to recent media coverage
about the Office of the Public Guardian and the Court of Protection, Office of
the Public Guardian, 5th November 2009
Media have raised some
important issues and concerns on the emotive subject of who has the authority
to manage a person’s affairs if they lose their mental capacity. We all know
how important it is to plan for the future. Having a Lasting Power of Attorney
(LPA) or a previous version, called an Enduring Power of Attorney (EPA), in
place should be as common and natural as making a will. It ensures that a
person of your choosing will be able to manage your affairs should you lose
capacity, be it as a result of dementia, mental illness or an accident
But without an
appropriate power of attorney in place, someone losing mental capacity needs to
be protected. This has always been the purpose of the Court of Protection. In
these circumstances, the court will often appoint a ‘deputy’ to make decisions
that must be in the persons’ best interests. That deputy is usually a family
member or close friend but sometimes there may not be anyone who is able or
willing to take on the role, or the court may have reason to believe that other
arrangements are more appropriate. In such circumstance a Local Authority or
professional may be appointed as deputy. In the majority of cases the appointed
person will be free to invest, spend and manage the funds in ways they feel
most appropriate for the individual.
The vast majority of
applications to appoint a deputy are supported by family members and are
processed by the court without any hearing being necessary. But in some cases
there are disputes and hearings are required. These court sessions are
conducted in private as highly personal matters are often discussed. Cases
where vulnerable people have their funds misappropriated by unscrupulous
individuals is something we need to guard against. The Office of the Public
Guardian (OPG), which was set up by the Mental Capacity Act 2005, supervises
all deputies and has the power to investigate allegations of abuse. But of
course the onus should always be on prevention.
Media reports have
claimed that to have deputies monitored by the OPG costs individuals £800 a
year. This is only true in 2.5 per cent of cases. In 72 per cent of cases, the
fee is £175; in 15 per cent of cases it is free. But no system is perfect and
we are always looking for ways to make it as effective and efficient as we possibly
can
The Mental Capacity Act
2005 came into force in October 2007 and brought with it many improvements. The
new Court of Protection generally allows deputies more freedom than in the past
and people have more choices than ever on how to plan ahead for the future. But
we always strive to be responsive to customers, so we have now made the Lasting
Power of Attorney forms cheaper to register and simpler to complete.
Since October 2007 most
deputies have been able to keep money in any account they choose and access it
with minimal restrictions. This is a significant improvement on the previous
system, when greater restrictions were in place. If a person does have an order
they feel is too restrictive, they are free to apply to the court for a new
order, although any decisions would be a matter for a judge.
When the new measures in
the Act were first introduced, there were teething problems. The majority of
the 3,000 complaints mentioned in last week’s article relate to delays at the
OPG arising from very high volumes of work -the result of an unexpectedly high
level of public demand to register the new LPAs. But there have since been big
improvements in the OPG’s service to the public, highlighted by positive
comments in a report that will be published by the independent Public Guardian
Board, tomorrow
In addition, the
judiciary, court staff and court users are all agreed that the time is right to
look at our court forms and processes. I have therefore agreed for Sir Mark
Potter, President of the Court of Protection, to set up a committee to review
the current Court of Protection Rules to ensure they provide an efficient and
effective service.
Lord Chancellor and Secretary of State for Justice
