Powers of Attorney and Bankruptcy Flashcards

1
Q

General Power of Attorney:

A
  • Created under the PoA Act 1971
  • Temporary measure, i.e. should donor go abroad temporarily
  • Only valid as long as donor has mental capacity
  • S.10 gives attorney power to do anything donor can do
    • except in donor’s capacity as trustee/ legal personal representative
  • Attorney must show original/ certified copy to prove authority
  • Attorney can sign using own signature, plus ‘on behalf of’
  • Can be revoked at any time by the donor
    • Auto revoked if donor loses capacity, dies of is adjudged bankrupt
    • If attorney does not receive notice of revocation, they are protected
    • If they carry out transaction after original expiry date or know it has been revoked, deemed as having had notice
  • Attorney cannot give away donor’s property without consent in the power
    • Making large gifts is not compatible with a PoA
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2
Q

Lasting Power of Attorney:

A
  • Replaced EPA on 1 October 2007
    • No new EPA can be created
    • Existing EPA still valid
  • Created under MCA 2005
  • LPA gives power to act on donor’s behalf, in the event that the donor loses capacity or no longer wishes to act for themselves.
  • Two types of LPA
    • Financial & Property
    • Health & Care
  • LPA doesn’t become effective until it is registered with the OPG
  • Usually this is done straight away
  • Can apply online using simplified forms
  • Donor must have mental capacity when they make the LPA
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3
Q

Process of applying for an LPA:

A
  • Complete prescribed form
    • Signed by:
      • donor
      • attorney
      • certificate provider
        • confirms donor understands, effect of creating LPA and are doing so of own free will/ no fraud
    • Witnessed by independent person
    • Process takes 4-10 weeks
    • Can be done any time after LPA is created, even if donor still has mental capacity
    • 3 week period in which LPA can be objected to
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4
Q

Validity requirements for an LPA:

A
  • Donor and attorney over 18, not bankrupt
  • Donor has mental capacity
  • LPA made on prescribed form
  • LPA state donor and attorney read prescribed info and attorney understands duties
  • Certificate from prescribed person
  • LPA can be revoked by donor, if they have mental capacity
  • Also revoked on bankruptcy of attorney or donor (not health and welfare), if the donor/ attorney are married and they divorce, the attorney is incapacitated
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5
Q

What are the responsibilities of the attorney?

A
  • Make decisions (only those authorised by the LPA) in donor’s best interest.
  • Conslt with donor and others with an interest in donor’s affairs before making decisions.
  • Keep own money separate from donor’s.
  • Respect donor’s confidentiality.
  • Ensure no conflict of interest.
  • Only make gifts on customary occassions/ gifts that would be expected.
  • If attorney breaches duties, can be ordered to make restitution
  • Fine and/ or 5 years in prison if mistreat/ purposefully neglect someone who lacks capacity.
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6
Q

What are the powers of the Court of Protection (COP)?

A
  • Decide whether someone has mental capacity
  • Make decisions/ act for someone who does not
  • Appoint deputies where lack capacity and no LPA/EPA in place
  • Determine whether EPA/LPA are valid
  • Remove deputies / attorneys who fail to do their duty
  • Hear objections to LPA/EPA registrations
  • Must apply MCA principles and ensure they are in best interest of those who lack capacity
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7
Q

Who can be appointed deputy by the COP?

A
  • Close friend/ family member
  • Could be a professional
  • Over 18
  • COP will issue court order confirming deputy
  • Deputy must apply to be appointed by COP
    • Property and financial affairs
    • Personal welfare
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8
Q
A
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