How to write a case note law uk

Definitions[ edit ] The term common law has many connotations. The first three set out here are the most-common usages within the legal community. Other connotations from past centuries are sometimes seen, and are sometimes heard in everyday speech. For example, the law in most Anglo-American jurisdictions includes " statutory law " enacted by a legislature" regulatory law " in the U.

How to write a case note law uk

To view this licence, visit nationalarchives. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at https: The note explains the legal framework to gifting and the approach the Office of the Public Guardian OPG takes when deputies or attorneys go beyond their authority to give gifts.

Scope of this practice note This practice note applies to all attorneys appointed under a registered lasting power of attorney LPA for property and affairs or under an enduring power of attorney EPA. It also applies to deputies appointed by the Court of Protection to manage the property and affairs of someone who lacks capacity to make decisions.

Principles of gifting Deciding whether to make a gift is an important part of being a deputy or attorney. Gifts can help to preserve the relationships with the family and friends of the person whose finances you are helping to look after.

However, deputies and attorneys need to be aware of the strict rules on gift-making. Attorneys acting under EPAs have similar but not identical duties. Before making a gift, you must consider whether the person: Attorneys and deputies have to make each decision considering its own context and timing.

You work out best interests on each occasion, taking into account all the relevant circumstances. In particular, you must follow the steps outlined in section 4 of the act.

OPG produces a general guide to gifting for deputies and attorneys. What does the law mean by a gift? For a deputy or attorney, a gift is when you move ownership of money, property or possessions from the person whose affairs you manage to yourself or to other people, without full payment in return.

A gift can include: The Court of Protection has the power to either approve or refuse your application.

how to write a case note law uk

Capacity to make a gift Before making any decision on gifting, you must try to find out whether the person has the mental capacity to make the decision themselves. If the person has capacity to make a gift, then they should normally make the gift themselves, rather than tell you to make it on their behalf.

To have capacity to make a decision, section 3 of the act says the person has to be able to: You can find more guidance on assessing capacity in chapter 4 of the Mental Capacity Act Code of Practice.

If you consider that the person has capacity to make a gifting decision, you should keep a record of the steps you took to make sure they did. The Public Guardian may ask you at any stage to explain your decision, or others could challenge you later.

Even if the person apparently has capacity to make a gift, you must still use care and caution when they express a desire to make one.

If a substantial gift is involved, you may need to seek advice or arrange for a mental capacity assessment, or both.

Involving the person in the decision Where the person lacks capacity to decide about a gift, you must still either consult them or encourage them to participate in decision-making — or both — as a way of working out their wishes or feelings about the gift.

Even if the person lacks capacity to make the decision, they may have views on it and prefer one choice rather than another. Involving them can help to work out what is in their best interests. It all depends on the decision in question. You must not take advantage of your position as deputy or attorney to benefit yourself.

If you do accept a gift for yourself, the Court of Protection can look carefully at whether the person had capacity and may decide you went beyond your authority. Senior Judge Lush commented that: The general rules about gifts The general rule for deputies and attorneys about giving gifts is simple: For attorneys acting under a registered property and financial affairs LPAthese exceptions are set out in section 12 2 of the act.

To count as an exception, the gift must satisfy all three points below. They are similar to the exceptions for an LPA but slightly narrower in what they allow. For EPA attorneys, an acceptable gift must satisy all three points below.

You would be breaking your authority if you acted against the wishes of a donor with mental capacity. If an attorney wants to make a gift that falls outside the restrictions in the law or in the EPA or LPAthey must apply to the Court of Protection for approval.

For deputies appointed by the court, the power to give gifts is stated in their deputy order.Summary. This practice note gives detailed guidance on how deputies and attorneys should approach giving gifts on behalf of the person they act for (often called ‘the person’ in this practice.

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how to write a case note law uk

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