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Nearest Relative vs Lasting Power of Attorney
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Matthew Vernon
Mar 25, 2015, 12:16:29 PM3/25/15
to
Hi,
A friend was wondering about the following, and I thought people here
might know:
Are there any situations in which the power of someone's Nearest
Relative (as defined by the Mental Health Act) would be greater than
that of someone holding Lasting Power of Attorney, or in which someone
holding LPA would not have access to a patient when both they and the
patient want them to have it?
The context is that both nearest-relative and LPA trump next-of-kin, but
my friend is wondering whether LPA trumps nearest-relative.
TIA,
Matthew
--
`O'-----0 `O'---. `O'---. `O'---.
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| | /\ | | \ | |\ | |
The Dangers of modern veterinary life
A friend was wondering about the following, and I thought people here
might know:
Are there any situations in which the power of someone's Nearest
Relative (as defined by the Mental Health Act) would be greater than
that of someone holding Lasting Power of Attorney, or in which someone
holding LPA would not have access to a patient when both they and the
patient want them to have it?
The context is that both nearest-relative and LPA trump next-of-kin, but
my friend is wondering whether LPA trumps nearest-relative.
TIA,
Matthew
--
`O'-----0 `O'---. `O'---. `O'---.
\___| | \___|0-/ \___|/ \___|
| | /\ | | \ | |\ | |
The Dangers of modern veterinary life
Martin Bonner
Mar 25, 2015, 12:31:31 PM3/25/15
to
On Wednesday, 25 March 2015 16:16:29 UTC, Matthew Vernon wrote:
> Hi,
>
> A friend was wondering about the following, and I thought people here
> might know:
>
> Are there any situations in which the power of someone's Nearest
> Relative (as defined by the Mental Health Act) would be greater than
> that of someone holding Lasting Power of Attorney, or in which someone
> holding LPA would not have access to a patient when both they and the
> patient want them to have it?
>
> The context is that both nearest-relative and LPA trump next-of-kin, but
> my friend is wondering whether LPA trumps nearest-relative.
>
According to the page at
> Hi,
>
> A friend was wondering about the following, and I thought people here
> might know:
>
> Are there any situations in which the power of someone's Nearest
> Relative (as defined by the Mental Health Act) would be greater than
> that of someone holding Lasting Power of Attorney, or in which someone
> holding LPA would not have access to a patient when both they and the
> patient want them to have it?
>
> The context is that both nearest-relative and LPA trump next-of-kin, but
> my friend is wondering whether LPA trumps nearest-relative.
>
http://www.alzheimers.org.uk/site/scripts/documents_info.php?documentID=117
The answer is "No".
Roger Hayter
Mar 25, 2015, 3:53:44 PM3/25/15
to
certain decisions made under the MHA are concerned, but "yes" as far as
other decisions are converned.
--
Roger Hayter
David L. Martel
Mar 25, 2015, 3:54:57 PM3/25/15
to
Matthew,
They are different entities. A Nearest Relative may make certain
decisions which are against the wishes of a person as part of a treatment of
mental illness. This is often short-term and a Guardian is appointed.
Someone with an LPA makes decisions but can not make decisions to refuse
medications and can not over rule a Guardian in many cases.
If you provide more detail perhaps the answers will be better.
Good luck,
Dave M.
They are different entities. A Nearest Relative may make certain
decisions which are against the wishes of a person as part of a treatment of
mental illness. This is often short-term and a Guardian is appointed.
Someone with an LPA makes decisions but can not make decisions to refuse
medications and can not over rule a Guardian in many cases.
If you provide more detail perhaps the answers will be better.
Good luck,
Dave M.
Roger Hayter
Mar 25, 2015, 3:55:52 PM3/25/15
to
Matthew Vernon <mat...@debian.org> wrote:
> Hi,
>
> A friend was wondering about the following, and I thought people here
> might know:
>
> Are there any situations in which the power of someone's Nearest
> Relative (as defined by the Mental Health Act) would be greater than
> that of someone holding Lasting Power of Attorney, or in which someone
> holding LPA would not have access to a patient when both they and the
> patient want them to have it?
>
> The context is that both nearest-relative and LPA trump next-of-kin, but
> my friend is wondering whether LPA trumps nearest-relative.
>
> TIA,
>
> Matthew
The LPA is not effective at all if the patient has capacity to make
> Hi,
>
> A friend was wondering about the following, and I thought people here
> might know:
>
> Are there any situations in which the power of someone's Nearest
> Relative (as defined by the Mental Health Act) would be greater than
> that of someone holding Lasting Power of Attorney, or in which someone
> holding LPA would not have access to a patient when both they and the
> patient want them to have it?
>
> The context is that both nearest-relative and LPA trump next-of-kin, but
> my friend is wondering whether LPA trumps nearest-relative.
>
> TIA,
>
> Matthew
decisions. Mental illness and its compulsory treatment can occur with
or without loss of capacity. If decisions need making under the MHA at
the same time as the patient lacks capacity my guess would be that the
nearest relative still has their statutory functions under the MHA but
the LPA holder can make other decisions on behalf of the patient. But I
don't know. Clearly if the patient is to be compulsorily treated under
the MHA the LPA holder cannot forbid this.
As you probably know, the powers of the nearest relative under the MHA
are somewhat limited.
An interesting question which I don't think can be answered in a general
way, but only on the specific facts of a particular situation.
If a dispute arose over an important, life changing, issue I suspect
that the Court of Protection would have to become involved.
--
Roger Hayter
Big Les Wade
Mar 27, 2015, 8:44:33 AM3/27/15
to
David L. Martel <mart...@frontier.com> posted
--
Les
>Matthew,
>
> They are different entities. A Nearest Relative may make certain
>decisions which are against the wishes of a person as part of a
>treatment of mental illness. This is often short-term and a Guardian is
>appointed.
What jurisdiction are you in? This is uk.legal.
>
> They are different entities. A Nearest Relative may make certain
>decisions which are against the wishes of a person as part of a
>treatment of mental illness. This is often short-term and a Guardian is
>appointed.
--
Les
Roger Hayter
Mar 27, 2015, 11:43:19 AM3/27/15
to
MHA. The decisions the nearest relative can make are mainly related to
compulsory treatment and are made in conjunction with professionals.
The Guardian comes in with longer-term compulsory community care.
--
Roger Hayter
Big Les Wade
Mar 27, 2015, 1:45:31 PM3/27/15
to
Roger Hayter <ro...@hayter.org> posted
Sorry - my post wasn't clear. It's this latter I was asking about. What
Guardian?
--
Les
Guardian?
--
Les
Message has been deleted
Roger Hayter
Mar 27, 2015, 6:29:49 PM3/27/15
to
August West <aug...@kororaa.com> wrote:
> The Office of the Public Guardian?
No. It is a person appointed to enforce the compulsory treatment in the
community powers created by the latest MHA. I don't know the full
facts, but the guardian can tell the patient where to live and to take
their medicine. Not sure what sanctions they have beyond compulsory
admission to hospital, and on what basis they can exercise this
sanction. Whether forcible treatment and restraint are permitted in the
community (except under common law powers in an emergency) I really
don't know.
--
Roger Hayter
No. It is a person appointed to enforce the compulsory treatment in the
community powers created by the latest MHA. I don't know the full
facts, but the guardian can tell the patient where to live and to take
their medicine. Not sure what sanctions they have beyond compulsory
admission to hospital, and on what basis they can exercise this
sanction. Whether forcible treatment and restraint are permitted in the
community (except under common law powers in an emergency) I really
don't know.
--
Roger Hayter
Big Les Wade
Mar 28, 2015, 4:19:04 AM3/28/15
to
Roger Hayter <ro...@hayter.org> posted
http://www.mentalhealthcare.org.uk/mental_health_act
"Guardianship
Section 7 of the Mental Health Act allows for people who have a 'mental
disorder' to be given a guardian in the interests of their own welfare
or to protect other people. A guardian helps someone live as
independently as possible within the community.
If a patient is currently detained in hospital under the Mental Health
Act, they may be discharged to receive care and treatment in the
community under guardianship. In most cases there will be other options,
such as the use of a community treatment order (CTO). The updated Mental
Health Act Code of Practice gives guidance (in Chapter 30) about when to
use guardianship rather than a CTO.
The guardian is most commonly the local authority, but may be an
individual (such as a relative or friend) who is approved by the local
authority (called a 'private guardian'). A guardian must always act in a
person's best interests.
Medical recommendations from two doctors (one of whom must be approved
under Section 12 of the Mental Health Act) are needed and then an
approved mental health professional (AMHP) or the person's nearest
relative can apply to the local authority for a guardianship order to be
made. If a nearest relative objects to the making of a guardianship
order, it cannot proceed.
A court can also make a guardianship order (under Section 37 of the
Mental Health Act).
Section 8 of the Act gives a guardian legal powers: to require a person
to live in a certain place (and to return them to that place if they
leave it); to require a person to attend appointments for 'medical
treatment, occupation, education or training'; to require a doctor, AMHP
or other person access to visit. Guardianship does not allow treatment
to be given without a person's consent.
A guardianship order lasts for up to six months initially, but can be
renewed for a further six months, and again for a further year at a
time. The local authority will ask a doctor (called the responsible
clinician) to say if someone still needs a guardian. (If someone has a
private guardian, the doctor is called the 'nominated medical attendant'
instead).
People can ask to stop have a guardian by writing to the local authority
or the First-tier Tribunal (Mental Health). Someone's nearest relative
can also apply to end a Section 7 guardianship order by writing to the
local authority."
--
Les
>
>No. It is a person appointed to enforce the compulsory treatment in the
>community powers created by the latest MHA. I don't know the full
>facts, but the guardian can tell the patient where to live and to take
>their medicine. Not sure what sanctions they have beyond compulsory
>admission to hospital, and on what basis they can exercise this
>sanction. Whether forcible treatment and restraint are permitted in the
>community (except under common law powers in an emergency) I really
>don't know.
Found it:
>No. It is a person appointed to enforce the compulsory treatment in the
>community powers created by the latest MHA. I don't know the full
>facts, but the guardian can tell the patient where to live and to take
>their medicine. Not sure what sanctions they have beyond compulsory
>admission to hospital, and on what basis they can exercise this
>sanction. Whether forcible treatment and restraint are permitted in the
>community (except under common law powers in an emergency) I really
>don't know.
http://www.mentalhealthcare.org.uk/mental_health_act
"Guardianship
Section 7 of the Mental Health Act allows for people who have a 'mental
disorder' to be given a guardian in the interests of their own welfare
or to protect other people. A guardian helps someone live as
independently as possible within the community.
If a patient is currently detained in hospital under the Mental Health
Act, they may be discharged to receive care and treatment in the
community under guardianship. In most cases there will be other options,
such as the use of a community treatment order (CTO). The updated Mental
Health Act Code of Practice gives guidance (in Chapter 30) about when to
use guardianship rather than a CTO.
The guardian is most commonly the local authority, but may be an
individual (such as a relative or friend) who is approved by the local
authority (called a 'private guardian'). A guardian must always act in a
person's best interests.
Medical recommendations from two doctors (one of whom must be approved
under Section 12 of the Mental Health Act) are needed and then an
approved mental health professional (AMHP) or the person's nearest
relative can apply to the local authority for a guardianship order to be
made. If a nearest relative objects to the making of a guardianship
order, it cannot proceed.
A court can also make a guardianship order (under Section 37 of the
Mental Health Act).
Section 8 of the Act gives a guardian legal powers: to require a person
to live in a certain place (and to return them to that place if they
leave it); to require a person to attend appointments for 'medical
treatment, occupation, education or training'; to require a doctor, AMHP
or other person access to visit. Guardianship does not allow treatment
to be given without a person's consent.
A guardianship order lasts for up to six months initially, but can be
renewed for a further six months, and again for a further year at a
time. The local authority will ask a doctor (called the responsible
clinician) to say if someone still needs a guardian. (If someone has a
private guardian, the doctor is called the 'nominated medical attendant'
instead).
People can ask to stop have a guardian by writing to the local authority
or the First-tier Tribunal (Mental Health). Someone's nearest relative
can also apply to end a Section 7 guardianship order by writing to the
local authority."
--
Les
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