Problems with the present system
Safeguards
2.1. The issues relating to Powers of Attorney were covered in Chapter 6 of Who Decides?
2.2. There are currently two types of power of attorney:
the first is the ordinary power, by which a person ("the donor") may delegate to another, decision-making on financial issues to be exercised on the donor. s behalf. The donor may limit the power in time and make it subject to other conditions. This is used, for example, where a person goes abroad for a few years, and wants their property or financial affairs looked after by somebody in their absence, on the understanding that control will return to the donor on the donor. s return. This ordinary power of attorney only lasts for as long as the donor retains mental capacity. If the donor becomes incapable, the attorney loses his or her authority to act. Often a delegated decision-making power would be of most use at the point where the donor loses mental capacity;
to overcome this difficulty the second type of power of attorney . the Enduring Power of Attorney (EPA) - was created, in the Enduring Powers of Attorney Act 1985. The Act specifically enables a person to delegate decision-making powers on financial matters, anticipating a time when the person will be mentally incapacitated and unable to make decisions for himself or herself. The 1985 Act requires an EPA to be made using a prescribed form, and to be drawn up at a time when the donor still has capacity. The attorney under the power is obliged to register the EPA when he has reason to believe that the donor is, or is becoming, mentally incapable. Before doing so, he is required by the statute to notify relatives of the donor.
Problems with the present system
2.3. The Government recognises that there are a number of problems with this system, and this view was reinforced in the consultation process. A number of concerns were raised, including the following:
The Drafting or Creation of the power:
powers were used prior to the donor becoming incapacitated
family members did not know about the existence of the EPA . some felt that it would be a safeguard if other people had to be alerted that the power had been created
donors of EPAs were already without capacity by the time they signed their EPA.
notification of others in the statutory list is inadequate, since the donor and relative may not see, or care anything for, one another
there is no adequate system to compel the attorney to register the EPA when the donor becomes incapable.
the court will not usually know about unregistered powers which are being exercised, where instances of financial abuse might occur.
The lack of a regional office:
there is a lack of access for members of the public to speak to someone about EPAs.
2.4. The Law Commission recommended that EPAs, which are limited to financial affairs, should be replaced by Continuing Powers of Attorney (CPAs). CPAs would allow individuals to delegate decision-making powers on finance, healthcare, and personal welfare to a person of their choice. CPAs received very strong support on consultation from a wide range of individuals and organisations.
The Government intends to put in place a system of CPAs that would enable a person to delegate decision-making powers on finance, healthcare and personal welfare, where both the donor and donee are over 18.
2.5. A CPA may give general authority to take financial or welfare decisions but this principle is subject to reservations where the CPA relates to healthcare matters. A CPA should never be able to authorise the attorney to:
consent or refuse consent to any treatment or procedure unless the donor is or is reasonably believed to be without capacity; or
consent to the donor. s compulsory treatment under the Mental Health Act 1983.
2.6. An attorney will not be able to make decisions on behalf of the person without capacity about the withdrawal of artificial nutrition and hydration unless the person has specifically given the authority to do this in the CPA. A general authority in the CPA to make health care decisions will be insufficient for this purpose.
2.7. An attorney will not be able to use the healthcare powers until the donor becomes incapacitated.
2.8. As is the case with the general authority to act reasonably ( see paragraph 1.23) and managers ( see paragraph 3.21), there are a number of decisions which no one can take on behalf of the person without capacity. These are listed in paragraph 1.23.
There will be safeguards for those making CPAs.
2.9. As a result of the response to Who Decides?, the Government has decided that certain safeguards would be appropriate. These are intended to provide sufficient safeguards for people without capacity, while recognising that there should be minimal interference where things are working well.
2.10. Accordingly, the legislation will contain provisions about the form and manner of execution of the CPA, procedural requirements, and restrictions on who may be an attorney.
Making a CPA
The form for making a CPA will be prescribed; and the terms of the CPA must be set out in writing. The document must be signed, witnessed and dated.
The form must be accompanied by evidence that the donor was mentally capable at the time that it was created. That evidence could be provided by either a separate medical certificate or a signed statement by a doctor in the CPA form itself.
Donors will be able to make more than one CPA and have more than one attorney. They may want to appoint different people to deal with different aspects, or they may wish to appoint joint attorneys for all decisions.
Donors will be able to appoint substitute attorneys in case their first choice of attorney loses mental capacity or dies.
It will not be possible to appoint the holder for the time being of a specified office to act as attorney.
The donor must indicate whether he wishes to give to the attorney either general or specific powers in relation to finance, welfare and healthcare issues. As indicated at paragraph 2.6. above, certain healthcare powers can only be granted specifically.
2.11. It will not be possible to convert an existing financial EPA into a CPA dealing with broader issues. Legislation will contain appropriate transitional arrangements in respect of EPAs to ensure a smooth transition.
Revocation and amendment of CPAs
2.12. Donors of CPAs will be able to revoke or amend them at any time while they have capacity, and to change their attorney. An attorney will be able to withdraw their consent to act under a CPA.
The Government has decided that the Court of Protection will not be able to appoint a substitute attorney.
2.13. The aim of a CPA is to allow someone to choose another person to make decisions on their behalf. This process of selection will inevitably be highly personal. The nature of the relationship, and the level of trust that the donor has in the attorney, is crucial, given the wide range of powers that the attorney will have. But the original attorney may become unable, or unwilling, to perform his or her duties on behalf of the donor. If the donor has not nominated a substitute attorney, then the court will not be able to appoint a substitute itself. However, it will be able to appoint a manager, who will be subject to stricter controls than an attorney.
Compulsory Registration of CPAs
There will be a compulsory Registration system and a Registering Authority. All CPAs must be registered before the attorney can use them.
2.14. Respondents strongly supported this on consultation. The authority will check whether the donor has already donated the same powers to another person under a valid, registered CPA, and, if necessary, refer the matter to the court for a ruling on validity. The legislation will set out the registration procedure.
2.15. Registration will be possible at any point following execution of the CPA until the time when the donor has become incapable. It will be possible for the attorney to exercise powers in relation to financial and welfare issues while the donor is still capable if that is the donor's wish. However, as noted at paragraph 2.7 above, it will only be possible for powers in relation to healthcare issues to be exercised when the donor has become incapable. This will ensure that the donor continues to make decisions about healthcare while capable of doing so, but would enable an attorney to make immediate decisions in the event of the donor becoming instantly incapable, for example as a result of receiving a head injury in a car accident.
2.16. As a safeguard against fraudulent registration and abuse, the Law Commission recommended that the attorney should be required to notify others of the application for registration after the CPA had been registered.
2.17. As a result of the response to consultation the Government has decided that notification should take place before registration. This would enable disputes and challenges to be settled by the court before the CPA has become effective. The attorney will have to provide evidence that notification had taken place or that best endeavours to contact those to be notified had failed.
2.18. The CPA form will allow donors to name specific people to be notified at the time of registration. This will replace the relationship provisions in relation to EPAs (see paragraphs 2.2.-2.3., above). The donor may specify on the CPA form that no one should be notified.
2.19. Except in unusual circumstances, a period of 28 days should elapse between notification and registration to allow time for objections to be lodged with the Registering Authority.
2.20. The Government will make appropriate provision for emergency situations.
2.21. One current problem with the EPA system is that attorneys sometimes have problems with organisations or individuals who are unfamiliar with the EPA document, and are therefore suspicious of the attorney. s claims to have authority to make decisions on the donor. s behalf. It would be particularly problematic if this continued into the CPA system, when the attorney needed to make urgent medical decisions about a person. s healthcare. The Government is looking at the most appropriate way of meeting the needs of the attorney in gaining recognition.
Role of the Court of Protection
2.22. The powers of the Court of Protection ("the court") in relation to CPAs will be similar to those held by the current court in relation to EPAs. These will include the power to determine questions about the meaning and effect of a CPA. The court will also have the power to revoke a CPA on the grounds of the unsuitability of an attorney, including where the attorney is not acting in the best interests of the donor.
Protection for attorneys and third parties
2.23. The Law Commission recommended protection for an attorney or third party who has acted in good faith using the powers contained in a CPA which had been revoked.
2.24. The Government agrees that an attorney or third party who acts in the belief that a revoked CPA is valid should be protected from liability, provided that their actions would otherwise be lawful.
Consent to treatment and civil liability
2.25. On healthcare matters, the Law Commission recommended that, as far as civil liability is concerned, consent to treatment given by the attorney in respect of an incapable adult should be regarded as if it was consent to treatment given by the individual patient. This recommendation was broadly supported in consultation and will be taken forward.