Adults with Incapacity Update Alison Hempsey T C

Adults with Incapacity Update Alison Hempsey, T C Young Solicitors

POAs: appointment of Attorney • Same person as Continuing & Welfare Attorney or separate Continuing Attorney(s) and Welfare Attorney(s) • Joint or substitute Attorneys – NB are joint attorneys always to act together? • Succession of substitutes can’t be reversed – joint attorneys may be better option • Attorney must be over 16 • Continuing Attorney cannot be declared bankrupt

POAS: drafting issues • Clear statement re nature of powers, continuing, welfare or both • Statement that Granter has considered how incapacity to be determined AND • Include trigger – effective immediately, upon authority from granter, attorney’s reasonable belief re incapacity or medical certification.

POAs: powers • Should be tailored to granter’s circumstances. • Deprivation of liberty issues – can this be authorised by an attorney? • Use of Power of Attorney ØExplain principles to Granter ØRecord of granter’s wishes and feelings? ØProvisions for supported/co-decision making?

Vulnerable Clients Guidance • Issued in 2013 following MWC report in respect of Mr & Mrs D • Definition of incapacity includes incapable of acting – client could be incapable of acting to resist undue influence as in Mr & Mrs D • Solicitor must be satisfied when taking instructions that client has capacity to give instructions in relation to that matter – be alert to undue influence

Vulnerable Clients Guidance (cont’d) • Should see vulnerable clients alone wherever possible, except where client prefers third party (if possible neutral) support/assistance • Incapacity to resist undue influence may indicate incapacity, but undue influence not dependent on incapacity • Who is my client? Who initiated contact? • Is an ASP referral appropriate?

POA Guidance • Establish capacity to grant POA • Most appropriate solution for client’s circumstances? • Discuss both benefits and risks • Explain distinction between property/financial and welfare powers • Plenary powers to be included? • Specific instructions re compulsion/restraint

POA Guidance: taking instructions • • • Nature of powers Sole or joint attorneys? When are powers to come into effect? Is attorney willing to act? Is registration to be deferred? Importance of file notes!

POA Guidance: certification • Practising solicitors may certify • Consult re capacity and include details in certificate • Be alert to fact capacity may have altered during course of instruction • Beware re certifying POAs when you have not taken instructions! • Undue influence/other vitiating factors

POA Guidance: remote certification • Requirement to interview granter immediately prior to subscription • Provide POA in advance by post or email • Granter should not sign in advance • Granter must show solicitor by video call that POA is unsigned prior to interview • Usual guidance applies • If satisfied re capacity etc. , granter signs POA at solicitor’s request

POA Guidance: remote certification (cont’d) • Preferably, witness present with granter • Granter shows solicitor signed POA via video call • Granter instructed to return signed POA to solicitor promptly • Photocopy/scanned copy will not suffice • Certificate signed by solicitor on same date and attached to POA once returned • Audio call not sufficient

Registration timescales • OPG target to process within 30 working days of receipt • As at 16 th March 2020, OPG working on EPOAR submissions received 16/12/2019 (55 working days) and postal submissions received 06/12/2019 (60 working days) Ø Expedited registration – complete form and email OPG, in addition to usual registration process – 5 working days turnaround

Intervention Orders • Appropriate for one-off action/decision, e. g. signing or renouncing tenancy agreement • Exclusions set out in s 64(2) applying to welfare guardians apply equally to intervention orders (s 53(14)) • No further qualification and wording of s 53(5)(a) wide, intervention orders may “direct the taking of any action specified in the order” • Possible to authorise Will making?

Financial and/or Welfare Guardianship • Scope of powers narrower than for intervention orders – s 64(1) • Interaction with s 1 principles – not necessarily most straightforward intervention that is least restrictive option in relation to adult’s freedom • Ensure powers are tailored to Adult’s circumstances • Period of order?

Who Can be Appointed as Guardian? • Any individual suitable and who has consented • Chief Social Work Officer (welfare only) • In assessing suitability, Sheriff will consider: Øaccessibility to Adult and primary carer; Øability to carry out functions of Guardian; Øany conflict of interest; Øany adverse effects on interests of Adult; Øany other appropriate matters.

Who Can be Appointed as Guardian? (cont’d) • Application by J, Solicitor, Edinburgh Sheriff Court, 22 nd March 2016 – refusal to warrant application by solicitor for partners in firm as guardians to J’s client under Part 6 2000 Act • J had not averred “sufficient interest” • Confirmed by Sheriff Principal on particular facts of application

• • Who Can be Appointed as Guardian? (cont’d) S 57(1) 2000 Act – application may be made “by any person (including the adult himself) claiming an interest in the property, financial affairs or personal welfare of an adult” No requirement to claim sufficient interest Practice Rule B 1. 4, B 1. 12 & B 1. 15 – solicitors must act in best interests of clients, must not cease to act without just cause and must not discriminate on grounds of age, disability… Sheriff not bound to appoint proposed guardians – s 59(1)

• • Mental Health Officer Reports S 57(4) 2000 Act – MHO report to be prepared within 21 days of notice being given to Chief Social Work Officer of intention to make application. S 3 2000 Act? – SS & MM Applicants, Hamilton Sheriff Court, 21 st September 2015 – s 3(1) & s 3(2) 2000 Act XY Applicant, Hamilton Sheriff Court, 19 th February 2016 – opposite outcome Use of s 3(3) 2000 Act?

• • • CRPD Supported decision-making v. substitute decision-making Apply concept and principles of supported decision-making in practice now Obligation to be supportive, not restrictive, dealing with clients with intellectual disabilities Right to representation of own position in proceedings and right to advice Issues in practice, including Legal Aid constraints

• • Scott Review Update Scott Review of mental health legislative framework announced on 19/03/2019 Principal aim to improve rights and protections of persons who may be subject to existing provisions of mental health, incapacity or ASP legislation Terms of reference published September 2019 Interim report anticipated May 2020 to identify priorities and timetable for next stage

Contact Me - Alison Hempsey, T C Young - Email: amh@tcyoung. co. uk - Direct Dial: 0141 225 2573