The holder of this office in Scotland is the official who supervises powers and orders related to adults with incapacity under the Adults with Incapacity (Scotland) Act 2000 asp 4 and related regulations.
The general functions of the Public Guardian can be found in s 6, Adults with Incapacity (Scotland) Act 2000 asp 4. They include an investigatory function in relation to the exercise of powers of attorney. The Public Guardian is also the Accountant of Court.
Making lifetime gifts and settling property on behalf of P Settlements Under section 18(1)(h) of the Mental Capacity Act 2005 (MCA 2005), the court has jurisdiction to approve ‘settlement of any of P’s property, whether for P’s benefit or for the benefit of others. As with the approval of statutory Wills, the approval of a settlement on behalf of P is a decision reserved specifically to the court and will never fall within the deputy's general authority to manage P's property and affairs; it will always require a separate application for specific authority. When considering such an application, the court must be satisfied that P’s financial position will not be compromised in any way as a consequence of making the settlement. The court will consider P’s income and capital needs and will allow a generous contingency margin before deciding whether the proposed settlement is in P’s best interests. The court may consider a settlement to be preferable in a number of circumstances: • where P is a beneficiary under an existing Will, but may not require an absolute interest which will be charged to inheritance tax (IHT) on death. It may provide greater protection to P to vary the Will to create a new settlement on a discretionary trust, which names P as a discretionary beneficiary • when P is a minor, a deputy cannot consider making an application for a
Financial and property guardianships—Scotland This Practice Note describes who can be appointed as financial guardian to an adult over the age of 16 in Scotland and the steps required to complete the appointment. The duties of a financial guardian, management and inventory plans and termination of a guardianship are also covered. For general information on guardianships and the process involved in applying for them, see Practice Notes: Adults with Incapacity (Scotland) Act 2000, Guardianship applications in Scotland—pre-application matters and Guardianship applications in Scotland—court process. General principles Any person to be appointed under the Adults with Incapacity (Scotland) Act 2000 (AI(S)A 2000) must satisfy the principles set out in AI(S)A 2000, s 1 which are summarised as follows: • the appointment must benefit the adult • any intervention must be the least restrictive option in relation to the freedom of the adult • account must be taken of the adult’s wishes, past and present • so far as reasonable the views of relevant other parties must be taken into account • the adult should be encouraged to exercise his or her skills wherever possible Guardianships are dealt with under AI(S)A 2000, Pt 5 and are most suitable where long-term or ongoing assistance or management is required. For situations which are more one-off in nature an intervention order may be more appropriate—see Practice Notes: • Guardianship applications in Scotland—pre-application matters—Intervention order • Adults with Incapacity (Scotland) Act 2000
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Being an attorney under a property and financial affairs LPA—client guide This document provides general guidance about what is involved in acting as an attorney under a property and financial affairs lasting power of attorney (LPA). Your Private Client lawyer will be able to provide specific advice based on your circumstances. Acting as an LPA attorney for a relative or friend is an important responsibility that should be fully understood before the role is accepted and taken on. This guide aims to provide an overview of the powers and responsibilities of a property and financial affairs LPA attorney and explains what steps you are likely to need to take in managing your loved one’s affairs. What is an LPA? An LPA is a legal document that enables an individual (the donor) to appoint one or more trusted people (known as attorneys or donees) to manage their affairs and make decisions on their behalf in the event that they lose mental capacity. Before an LPA can be used, it must be registered with the Office of the Public Guardian (OPG). There are two types of LPA: an LPA for delegating decisions relating to the donor’s property and financial affairs and an LPA for delegating decisions relating to the donor’s health and welfare. This guide considers the role of an attorney under a property and financial affairs LPA. What tasks will I need
Why make an LPA?—client guide This document provides general guidance about lasting powers of attorney (LPAs), explaining what they are, the benefits of making one and the process for creating and registering an LPA. Your Private Client lawyer will be able to provide specific advice based on your circumstances. What is an LPA? An LPA is a legal document that enables you to appoint one or more trusted people (known as attorneys or donees) to manage your affairs and make decisions on your behalf in the event that you lose mental capacity. There are two types of LPA: • LPA for property and financial affairs decisions This type of LPA allows you to appoint one or more attorney(s) to make decisions about your property and financial affairs including operating bank and building society accounts, the buying and selling of your house and other assets, dealing with your tax affairs, claiming and receiving benefits and pension payments, and paying household, care and other bills. • LPA for health and welfare decisions This type of LPA allows you to appoint one or more attorney(s) to make decisions relating to things such as where you should live and what care you should receive, consenting to or refusing medical treatment on your behalf, and day-to-day matters such as your diet, clothes and daily routine. It is also possible to grant power to your attorney(s) to make
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A client prepared a lasting power of attorney (LPA) appointing one of a firm's partners as attorney, and one of its staff acted as a certificate provider. As the certificate provider was from a different branch operating under a different name, the OPG has registered the LPA, despite the fact that the certificate provider is an employee of an attorney. Is the LPA is fundamentally invalid, or can it be validated by the partner disclaiming his appointment as attorney? Under the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (the 2007 Regulations) SI 2007/1253, reg 8(3) a solicitor is prevented from acting as certificate provider if they are a business partner or paid employee of the attorney(s). This means that where a partner in a firm of solicitors is appointed as an attorney under a lasting power of attorney (LPA), another solicitor in the firm may not act as certificate provider. The application of this rule to limited liability partnerships was considered in the case of Re Putt, 2011 (not reported by LexisNexis®), in which it was held that the wording of the 2007 Regulations, SI 2007/1253, reg 8(3)(f) cannot be construed as distinguishing between a partnership under the Partnership Act 1890 and the Limited Liability Partnerships Act 2000 for the purpose of providing an LPA certificate and that, as the associate
Is it possible for an attorney under a lasting power of attorney (LPA), to make an application to have the LPA amended to add a further attorney where the LPA is registered and the donor has lost capacity? It may not be possible to add an attorney to a lasting power of attorney (LPA) once it's been registered with the office of the public guardian. However, an LPA can be amended if the donor still has capacity and if the amendment is to remove one of the attorneys. This can be done by a partial deed of revocation. If the attorney wants to add a further attorney, the donor may have to revoke the current LPA by deed of revocation and make a new one. However, this will not be possible where the donor has lost capacity. If an attorney is no longer able to act and there are no replacement attorneys named in the LPA, then a deputyship application to the Court of Protection would need to be made. The attorney is therefore
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This week’s edition of Private Client highlights includes: (1) The Guardian newspaper’s challenge of the secret hearing concerning HRH Prince Philip’s Will; (2) The Law Society publishes the HMCTS probate service update for July 2022; (3) HMRC issues updated guidance on non-resident trusts; (4) The Register of Overseas Entities (Delivery, Protection and Trust Services) Regulations 2022; (5) Parliamentary inquiry on tax reliefs; (6) The GAAR Advisory Panel delivers its first opinion in favour of taxpayer; (7) The Money Laundering and Terrorist Financing (Amendment) (No 2) Regulations 2022; (8) Re London Oil & Gas Ltd (in administration) which contains a helpful summary of the principles of agency law and the ability of a director to bind a company; (9) STEP and CIOT publish responses to HMRC’s consultation ‘Expanding the Investment Transactions List for the Investment Management Exemption and other fund tax regimes’, and (10) Batten v HMRC, in which the FTT provides guidance on factors relevant to the tax residency rules prior to 2013.
This week’s edition of Private Client highlights includes: (1) Draft legislation for Finance Bill 2023 will be published on 20 July 2022; (2) Updated guidance from HMRC on registering trusts where the settlor is deceased; (3) An NHS Foundation Trust v G, in which the Court of Protection granted injunctive relief against the family of a vulnerable young woman in order to establish clear boundaries and manage intimidating behaviour; (4) HMRC increases rate of interest payable on late payments of IHT to 3.75%; (5) Da Silva v Heselton, in which the Court of Appeal upheld the view that a trustee or executor can rely upon the charging clause in the Will to charge for work done or time spent in the administration of the estate only if that work falls within the scope of their profession or business in question; (6) HM Treasury consults on narrowing scope of sovereign immunity from direct taxation; and (7) DWP launches a call for evidence seeking views on how it can support pension scheme members make informed decisions on using their savings.
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