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EPA, LPA query

including wills and probate
genou
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Re: EPA, LPA query

#241990

Postby genou » August 5th, 2019, 11:17 pm

Lootman wrote:
genou wrote:
Lootman wrote:Well, it would not be lying if the EPA was already in use. Merely an act of omission

Clearly you and I define lying differently.

More important than me disagreeing with you, the law disagrees with you. Lying is an affirmative act of telling an untruth when one knows it is untrue, with intent to do harm or personally gain.

1) In the cited situation a lay attorney would not "know" that someone is incapacitated unless they were medically qualified.

2) A failure to utter something cannot be deemed a lie. Merely, worst case, an act of omission. Silence may be many things but it is not a lie.

3) I gain nothing in the cited situation. You'd need to show harm caused and in this case you cannot.


We define lying differently. Every time you offer up the EPA you assert that the Donor is capax. That is either true or it is not. Whether you are stealing or acting for the good of the Donor when doing so is irrelevant. I don't imagine that there is an agreed end to this thread.

Lootman
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Re: EPA, LPA query

#241993

Postby Lootman » August 5th, 2019, 11:22 pm

genou wrote:
Lootman wrote:
genou wrote:Clearly you and I define lying differently.

More important than me disagreeing with you, the law disagrees with you. Lying is an affirmative act of telling an untruth when one knows it is untrue, with intent to do harm or personally gain.

1) In the cited situation a lay attorney would not "know" that someone is incapacitated unless they were medically qualified.

2) A failure to utter something cannot be deemed a lie. Merely, worst case, an act of omission. Silence may be many things but it is not a lie.

3) I gain nothing in the cited situation. You'd need to show harm caused and in this case you cannot.

We define lying differently. Every time you offer up the EPA you assert that the Donor is capax. That is either true or it is not. Whether you are stealing or acting for the good of the Donor when doing so is irrelevant. I don't imagine that there is an agreed end to this thread.

I am not sure why you keep posting every response twice. But what I am sure about is that you seem more concerned with the technicalities of what the law says whereas I am more concerned with the motives and ethics of the participant.

I think our real disagreement here might be about the ultimate purpose of the law. And whatever that is, it is not about the ability of lawyers to make money from arcane semantics over morals, unless we are both visiting from another planet.

Clitheroekid
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Re: EPA, LPA query

#242203

Postby Clitheroekid » August 6th, 2019, 7:53 pm

There seems to be a fair amount of confusion - both legal and moral! - so to deal firstly with didds's specific queries:

didds wrote:- is the EPA "worthwhile"

Most definitely. EPA's actually worked very well, and I made dozens of them for people. The best thing about them was their simplicity. Many of the people making them (and this applies equally to LPA's) are already beginning to lose their faculties, and can have difficulty understanding complicated / long-winded documents.

The EPA was just 4 pages of large type, and they could be made in half an hour and used immediately, instead of having to wait the several weeks that an LPA takes to register. They were a lot quicker and a lot cheaper from the client's point of view.

By contrast the LPA's are absurdly over-complicated, and are quite daunting for many people. They may be easy enough for an educated, computer-literate person to deal with, but they can be a nightmare for people outside that category. The stringent requirements for their execution also catch out a lot of people, meaning they have to be returned for correction, resulting in further delay.

And I'm not at all sure that the main object of LPA's - reducing fraud - is much less likely with an LPA as against an EPA. There are no checks made on the certificate providers, and the mere fact that it's registered doesn't really provide many practical safeguards, as their use isn't monitored in any way.

So my advice to people with an EPA is hang onto it, and don't bother replacing it with an LPA unless, for example, they want to replace the attorneys or impose some specific rules / guidance on them.

- will it be OK with a LPA for health alongside?

Yes - see above - and save yourself £82 into the bargain!

- should she just do 2 x LPA for health and finance - in which case does the EPA need "annulling" ?

No - again, see above.

With regard to the question of registration it's really quite simple. An EPA can't be registered unless the donor has lost capacity, but it must be registered as soon as that happens if it's to remain effective. Although there's no need to provide medical evidence when applying for registration all the clients that I've ever dealt with have obtained a medical opinion before doing so.

Lootman wrote:I acted on behalf of my mother for a few years using an EPA which was not registered. I had no problems at all using it.

And I have my own unregistered EPA which my children could use if needed.

I've never seen the point of registering it, and in fact that is one benefit of EPAs over LPAs, since the latter must be registered.

The point of registering the EPA is that it's a legal requirement to do so once the donor has lost capacity, and it's not up to you to decide whether or not to register it. If you don't register it then any transaction carried out under the EPA thereafter is legally void.

It is entirely up to the attorney to declare any incapacity. It's not a formal medical statement of opinion. If they do declare it then their word is taken. If they do not declare it, their word is also taken.

Yes, it is up to the attorney to declare incapacity (though others can also do so) but you seem to be implying that they have free rein to decide whether or not to do so. This is emphatically not the case. The mere fact that an attorney may get away with not registering the EPA does not alter the fact that they are breaking their legal obligation to do so.

So in reality an unregistered EPA can be used if the attorney says that it is kosher.

Yes - in the same way that you can drive a car perfectly well without insurance or install a gas boiler without any qualifications. Getting away with breaking the law is rather different from not breaking the law in the first place.

I realise from previous posts that you take the view that you will comply with the law if it coincides with your view of what the law should be. But advising others to follow your example by acting illegally is perhaps not a good idea on a board where people are specifically seeking guidance on legal issues.

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Re: EPA, LPA query

#242231

Postby Lootman » August 6th, 2019, 9:29 pm

Clitheroekid wrote:
Lootman wrote:I acted on behalf of my mother for a few years using an EPA which was not registered. I had no problems at all using it.

And I have my own unregistered EPA which my children could use if needed.

I've never seen the point of registering it, and in fact that is one benefit of EPAs over LPAs, since the latter must be registered.

The point of registering the EPA is that it's a legal requirement to do so once the donor has lost capacity, and it's not up to you to decide whether or not to register it. If you don't register it then any transaction carried out under the EPA thereafter is legally void.

It is entirely up to the attorney to declare any incapacity. It's not a formal medical statement of opinion. If they do declare it then their word is taken. If they do not declare it, their word is also taken.

Yes, it is up to the attorney to declare incapacity (though others can also do so) but you seem to be implying that they have free rein to decide whether or not to do so. This is emphatically not the case. The mere fact that an attorney may get away with not registering the EPA does not alter the fact that they are breaking their legal obligation to do so.

That rather assumes that an attorney is qualified to make a medical judgement, and I am not at all sure that I am. Are you?

Some people may become immediately incapacitated. I'm thinking here of someone involved in a serious accident, or perhaps suffering from a stroke. But in many cases it is a depressingly long, gradual process, with relapses and recoveries. It is really hard in that case for a lay person to make a determination of exactly when the incapacity starts, and therefore when to register the EPA.

For that reason I think someone who is already acting as an attorney may well use their judgement to make that decision. Yes, the law technically requires it, but it says little about how to make that assessment.

Clitheroekid wrote:I realise from previous posts that you take the view that you will comply with the law if it coincides with your view of what the law should be. But advising others to follow your example by acting illegally is perhaps not a good idea on a board where people are specifically seeking guidance on legal issues.

I wasn't advising anyone. I was stating a personal view.

I certainly agree that we have both attended this rodeo before. But I maintain that in this issue, and with most legal isssues, the critical factor is not the chapter and verse of some statute, but rather the practical and ethical considerations that prevail.

So for example in the case of my mother, I always acted impeccably in terms of doing what was best for her. And if that meant not spending a sum equal to a week's worth of her state pension on a pointless registration, then I would challenge any reasonable judge or jury to make the case that I had done harm.

And if the law is more concerned with technicalities than doing the right thing, then frankly it is an ass and I have no time for it.

Agree with all you said about the value of EPAs earlier, by the way :)

didds
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Re: EPA, LPA query

#242330

Postby didds » August 7th, 2019, 9:53 am

Clitheroekid wrote:There seems to be a fair amount of confusion - both legal and moral! - so to deal firstly with didds's specific queries:

didds wrote:
- will it be OK with a LPA for health alongside?

Yes - see above - and save yourself £82 into the bargain!



OK. that's great. so the existing EPA for finance is all good, and we'll need an LPA for health .

Fantastic!


cheers

didds

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Re: EPA, LPA query

#242395

Postby staffordian » August 7th, 2019, 12:02 pm

Perhaps OT for the legal board, but I've never been convinced of the need for a health LPA.

My view is that regardless of the capacity or otherwise of the subject, then the NHS, or whoever is involved in making decisions on someone's care will always act in the best interest of the patient. They're not going to say that because the subject has dementia, a stroke, or whatever, and can't make their own decisions, they're not going to be treated.

Am I missing something significant?

didds
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Re: EPA, LPA query

#242410

Postby didds » August 7th, 2019, 1:01 pm

staffordian wrote:Perhaps OT for the legal board, but I've never been convinced of the need for a health LPA.

My view is that regardless of the capacity or otherwise of the subject, then the NHS, or whoever is involved in making decisions on someone's care will always act in the best interest of the patient. They're not going to say that because the subject has dementia, a stroke, or whatever, and can't make their own decisions, they're not going to be treated.

Am I missing something significant?


I've assumed it is more to do with

- no resuscitation
- nil by mouth
- no blood transfusions (jehova's witnesses etc)

and other similar requests that the patient if fully compos mentis would be able to indicate to the medical staff concerned but now are unable to.

didds

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Re: EPA, LPA query

#242412

Postby staffordian » August 7th, 2019, 1:14 pm

didds wrote:
staffordian wrote:Perhaps OT for the legal board, but I've never been convinced of the need for a health LPA.

My view is that regardless of the capacity or otherwise of the subject, then the NHS, or whoever is involved in making decisions on someone's care will always act in the best interest of the patient. They're not going to say that because the subject has dementia, a stroke, or whatever, and can't make their own decisions, they're not going to be treated.

Am I missing something significant?


I've assumed it is more to do with

- no resuscitation
- nil by mouth
- no blood transfusions (jehova's witnesses etc)

and other similar requests that the patient if fully compos mentis would be able to indicate to the medical staff concerned but now are unable to.

didds

That makes sense didds.

I'm happy to simply put my faith in the hands of those best qualified to judge as far as medical decisions are concerned.

Mrs S and I both have a finance LPA and wills and will stick at that.

Staffordian

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Re: EPA, LPA query

#242424

Postby production100 » August 7th, 2019, 1:47 pm

The health LPA gives you the right to attend a meeting re the long term care of the person concerned. This can have very serious consequences.

We had a case where if we had not attended a persons review meeting they would have had to pay for their subsequent nursing care. Typical questions on the review: Was the patient in any pain? Nurses answer no. Our answer yes, they were only in no pain because they were on high levels of pain relief. After many questions on a similar line it became clear that the answers given by the health authorities were all very biased to making the subsequent nursing care the patients responsibility. The final score defines whether you pay or they pay. That can be many thousands of pounds.

Without the signed legal document I am not convinced that we would have been allowed to attend.

If you are going to do a financial LPA I would urge you to consider doing a health LPA at the same time. The forms are very similar, the people signing it can be the same as for the financial LPA, so it really is very little extra effort. For a few pounds extra it is in my opinion money well spent.

Chris

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Re: EPA, LPA query

#242441

Postby production100 » August 7th, 2019, 2:26 pm

Reading back through your original post - are you aware that the EPA covers both health and financial affairs. They were only split up when the LPA was created.

So I cannot see the logic of making an LPA for one part and not for the other. If the EPA is correctly signed by all parties and dated before the deadline date then there is no need to do either LPA unless you are worried that EPA's are becoming more difficult to use because people do not always recognise them now that the new format is more common.

If you are doing one LPA to replace the EPA, then you need to do both health and financial parts to fully replace the EPA.

Relying on the health professionals to adequately represent the interests of the patient is in my opinion not sensible. If you had any dealings with the health service over the last few years you would recognise that the low level staff are generally excellent and do their best in difficult circumstances, but the level of communications and joined up working between different parts of the hospital service is appalling.

Chris

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Re: EPA, LPA query

#242444

Postby Lootman » August 7th, 2019, 2:33 pm

production100 wrote:Reading back through your original post - are you aware that the EPA covers both health and financial affairs. They were only split up when the LPA was created.

So I cannot see the logic of making an LPA for one part and not for the other. If the EPA is correctly signed by all parties and dated before the deadline date then there is no need to do either LPA unless you are worried that EPA's are becoming more difficult to use because people do not always recognise them now that the new format is more common.

If you are doing one LPA to replace the EPA, then you need to do both health and financial parts to fully replace the EPA.

Yes, the unregistered EPA I used for my mother included the ability for me to make a DNR decision when the time came.

That said I got the sense at the time that it was as much the fact that I was the next-of-kin that was relevant, as well as the EPA. But the attorney might be an unrelated person, and then the EPA would be essential, presumably.

didds
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Re: EPA, LPA query

#243629

Postby didds » August 11th, 2019, 9:42 pm

production100 wrote:Reading back through your original post - are you aware that the EPA covers both health and financial affairs. They were only split up when the LPA was created.



*SOB*

hence our initial confusions and hence reason for asking - and I'm now back at square one!

So - my mum's EPA _DOES_ cover BOTH health and finance after all contrary to what we've been previously told?

didds

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Re: EPA, LPA query

#243659

Postby production100 » August 12th, 2019, 7:48 am

Yes it covers both.

It is this sort of confusion with various groups not recognising that it covers both that led us to doing LPA's to replace our EPA's so we were using the latest format. Increasingly staff are trained on the LPA's but they seem either not to be told about EPA's, or they forget that they are still valid.

Chris

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Re: EPA, LPA query

#243692

Postby Chrysalis » August 12th, 2019, 10:23 am

This isn’t going to help, but this suggests that an EPA doesn’t cover health and welfare....it might be wrong of course, but that had always been my understanding.

https://www.alzheimers.org.uk/get-suppo ... torney-faq

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Re: EPA, LPA query

#243693

Postby Chrysalis » August 12th, 2019, 10:28 am

This is more likely to be correct, and also suggests that an EPA doesn’t cover health and welfare (it doesn’t allow the attorney to make decisions about where the donor should live, for eg)

https://assets.publishing.service.gov.u ... er_EPA.pdf

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Re: EPA, LPA query

#243760

Postby chas49 » August 12th, 2019, 2:11 pm

Jabd2001 wrote:This is more likely to be correct, and also suggests that an EPA doesn’t cover health and welfare (it doesn’t allow the attorney to make decisions about where the donor should live, for eg)

https://assets.publishing.service.gov.u ... er_EPA.pdf


IMHO (and IANAL) it is quite clear from the guidance quoted above that an EPA only relates to the property and affairs, and not health and welfare. This can be confirmed by looking at the Regulations which prescribe the form of an EPA (https://www.legislation.gov.uk/uksi/1990/1376/made) which includes the following prescribed form:

"I XXXX of YYYY ........appoint ZZZZ .... to be my attorney for the purposes of the [EPA1985] with ....authority to act .... on my behalf in relation to my property and affairs"

There is nothing in the prescribed form of an EPA or in the Act (EPA1985) or in the Mental Capacity Act 2005 Schedule 4 (which replaced EPA1985) to allow an EPA to cover health and welfare.

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Re: EPA, LPA query

#243794

Postby DrBunsenHoneydew » August 12th, 2019, 4:02 pm

Lootman wrote:Yes, the unregistered EPA I used for my mother included the ability for me to make a DNR decision when the time came.

That said I got the sense at the time that it was as much the fact that I was the next-of-kin that was relevant, as well as the EPA. But the attorney might be an unrelated person, and then the EPA would be essential, presumably.


It was not the EPA that was relevant there. In the absence of an actual "welfare attorney", NoK etc ultimately have no legal right to over-ride a decision of the healthcare team, but must be consulted for their views, which are usually followed.

It should be made clear to those close to the patient that their role is not to take decisions on behalf of the patient, but to help the healthcare team to make an appropriate decision in the patient’s best interests. Relatives and others close to the patient should be assured that their views on what the patient would want will be taken into account in decision-making but that they cannot insist on a treatment or on withholding or withdrawal of a treatment.

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Re: EPA, LPA query

#243805

Postby Lootman » August 12th, 2019, 4:26 pm

DrBunsenHoneydew wrote:
Lootman wrote:Yes, the unregistered EPA I used for my mother included the ability for me to make a DNR decision when the time came.

That said I got the sense at the time that it was as much the fact that I was the next-of-kin that was relevant, as well as the EPA. But the attorney might be an unrelated person, and then the EPA would be essential, presumably.

It was not the EPA that was relevant there. In the absence of an actual "welfare attorney", NoK etc ultimately have no legal right to over-ride a decision of the healthcare team, but must be consulted for their views, which are usually followed.

It should be made clear to those close to the patient that their role is not to take decisions on behalf of the patient, but to help the healthcare team to make an appropriate decision in the patient’s best interests. Relatives and others close to the patient should be assured that their views on what the patient would want will be taken into account in decision-making but that they cannot insist on a treatment or on withholding or withdrawal of a treatment.

If true, that would surely also apply to a LPA, so I am still not clear why a LPA would be needed for the healthcare side of things in a situation like mine.

My decision was also accepted on starting and ending a care home residency, and to release my mother from hospital when there was some institutional resistance to that. In other words the combination of the EPA and my being the next of kin (which surely most attorneys are) was sufficient to make all the decisions that needed to be made.

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Re: EPA, LPA query

#243808

Postby DrBunsenHoneydew » August 12th, 2019, 4:33 pm

Lootman wrote:If true, that would surely also apply to a LPA, so I am still not clear why a LPA would be needed for the healthcare side of things in a situation like mine.

My decision was also accepted on starting and ending a care home residency, and to release my mother from hospital when there was some institutional resistance to that. In other words the combination of the EPA and my being the next of kin (which surely most attorneys are) was sufficient to make all the decisions that needed to be made.


They simply agreed that what you wanted was for the best, which is the usual outcome of course, everyone being "sensible".
But technically the rules I outlined apply if there is no valid Welfare attorney - it's the clinician who makes the ultimate decision, not the NoK.
A Welfare LPA would give the appointed attorney the right to insist, but an EPA or a Finance LPA wouldn't.
Any dispute can be taken to judge, usually for unfortunate cases around letting babies die when the clinician says it's in the best interest of the child, but the parents disagree.

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Re: EPA, LPA query

#243948

Postby JonE » August 13th, 2019, 10:18 am

DrBunsenHoneydew wrote:It should be made clear to those close to the patient that their role is not to take decisions on behalf of the patient, but to help the healthcare team to make an appropriate decision in the patient’s best interests. Relatives and others close to the patient should be assured that their views on what the patient would want will be taken into account in decision-making but that they cannot insist on a treatment or on withholding or withdrawal of a treatment.

'Best interests' seems to be the dominant criterion but, to introduce yet another factor, the healthcare team needs to be made aware of any 'Advance Decision' that may exist which refuses specific treatments - although the precise effect can depend on whether it was made before or after an LPA. The more recently it was made/reviewed/refreshed the more weight it usually carries and the standard recommendation from following resource is that it be reviewed every couple of years. An Advance Statement may also exist to provide general guidelines and background for decision-making but it is not legally binding.
https://compassionindying.org.uk/

Cheers!


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