Report comment

Please fill in the form to report an unsuitable comment. Please state which comment is of concern and why. It will be sent to our moderator for review.

Comment

Anon @ 13:02 - I'm sorry; a difficult situation for you. I'm not an expert but a few months ago had to do a bit of research around something similar, and came up with the following (this is a summary), which may or may not help (and you may come within the category of "anyone engaged in caring for the person or interested in his welfare" under s.4(7)(b) Mental Capacity Act 2005):

Where a person lacks capacity:
• An act done, or decision made, under the Mental Capacity Act 2005 (MCA 2005) for or on behalf of a person who lacks capacity must be done, or made, in his best interests (s.1(5) MCA 2005).
• It does not matter whether the impairment or disturbance is permanent or temporary (s.2(2) MCA 2005).
• S.4 MCA 2005 covers “best interests” and applies to the exercise of any powers under a LPA (s. 4(8) MCA 2005).
• An attorney under a LPA is subject to the provisions of the MCA 2005 and in particular ss. 1 and 4, as well as any conditions or restrictions specified in the instrument (s.9(4) MCA 2005).
• Court of Protection guidance
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf requires (see chapter 7) that:
o Attorneys under an LPA are legally obliged to have regard to the guidance (p.115 and para 7.5 on p.116)
o Must have regard to Chapters 2 and 5 in particular (paras 7.18, 7.20, 7.54)
o The duties under the law of agency apply to LPAs (para 7.5 on p.116)
o Examples of property and affairs decisions are given in para 7.36 (but does not include power to lend money on the security of the donor’s property)
o The power to make gifts (limited by s.12 MCA 2005) is covered in paras. 7.40 – 7.42
• The Court of Protection may determine any question as to the meaning or effect of a LPA, or may authorise the making of gifts which are not within s. 12(2) MCA 2005 (see s. 23(1) and (4)).

I hope it doesn't come to a court application - always messy and expensive. Possibly best to contact the OPG first. Other than that I can't suggest anything else.

Your details

Cancel