Family Justice Center

Archive for July 17th, 2010

Two laws that are the same are criminal law and penal law. Punishment under these laws is often harsh. Penalties differ between jurisdictions and offenses. General penalties include: probation, parole, fines, execution or imprisonment.

The first society to write their criminal codes was the Sumarians. Criminal and civil laws were not divided at the time.

Criminal laws have strict punishments when the laws are not followed. A person can be imprisoned, even at home. The term of imprisonment in the prison system can be life. With house arrest, probation and parole departments set requirements that must be followed. Convicted persons may also loose property and money.

Restitution, retribution, deterrence, incapacitation and punishment are five methods to punish criminals. Jurisdictions have different laws regarding punishment.

Public International Law goes into effect when a heinous crime involves an entire area and society. These laws came about after World War 2 with the Nuremburg Trials. Sovereign immunity does not apply because the individuals were found guilty for their roles, even though it was ordered by their government.

Creating a fear of punishment is how most laws are enforced.

Detrimental behaviors may be prohibited by criminal law. A physical element, the act of carrying out the crime, must be present for a crime to have happened. Lack of intervention, threatening behavior or committing a crime has to happen. Guilty act, or actus reus, is the legal terminology. Neglect can be considered an actus reus if an individual is entrusted with the safekeeping of another. Good Samaritan Laws apply for certain situations that a person may cause.

A guilty mind or mens rea is needed for strict liability crimes such as a regulatory offense. Reason being is these crimes have harsh punishments.

Actus reus and mens rea are necessary for certain crimes. Both have to be present at the exact same time.

If an individual would have been hurt regardless of a person’s actions, then actus reus is does not apply. If an individual runs a red light and injures person, actus reus does apply because the injury was a result of an intentional act.

Motive and intention are different. With a guilty mind, or mens rea, the intentional violation of the law applies. Criminal acts are not voided by good intentions.

If an individual recognizes the risk of a behavior but continues anyway, mens rea is established. This is called recklessness. Courts usually take into account if the individual ought to have known the risk or not. Intent is voided when an individual ought to have known the risk but did not. This situation has resulted in mens rea being reduced in some areas of the law.

Intent affects the gravity of an act. If the intent is to kill or inflict bodily harm that may cause death, it is murder. Recklessness that results in death may be manslaughter. Who is injured does not matter. If the intent is to strike someone but, someone else is struck, intent is reassigned to that person. Transferred malice is established.

Civil law employs strict liability. It is damage caused by an individual regardless of mens rea or intent. Precise intent is not necessary for all crimes.

Penal law is primarily applicable to murder. Jurisdictions can have several types of murder. If intent and malice are there then it is first degree murder. Without malice it is manslaughter. Mental problems or irritation are the cause in many cases. Negligence that causes death is involuntary manslaughter in some states.

Settled insanity is a probably defense.

Criminal responsibility may result from assault and battery. One form of battery is rape.

Trespassing, conversion, embezzlement, theft and robbery are covered under penal law.

Charges can be file if a crime is known about or if there is a conspiracy. Completion of the act does not have to happen. Conspiracy, attempt, abetting and aiding fall into this category.

The Lasting Power of Attorney was introduced by The Mental Capacity Act 2005 and came into effect on the 1st October 2007. It replaces the Enduring Power of Attorney although EPA’s made prior to the 1st October 2007 will continue to be valid.  You may make two types of LPA – the Property and affairs LPA and the Welfare LPA.  As the name suggests, the Property and Affairs LPA deals with financial matters whereas the Welfare LPA covers personal and healthcare decisions.

Choice of Attorney

The person making the LPA (the Donor) should appoint an Attorney they trust and in whom they have complete confidence. The Attorney must be over 18 and must not be an un-discharged or interim bankrupt person.  More than one Attorney can be appointed to act either together, independently or together in respect of some matters and independently in respect of others. If the LPA is silent on how two or more Attorneys are to act they must act together. Under LPA’s it is possible for the person making the LPA to appoint a replacement Attorney.

Role of Attorney

An Attorney’s role to make all the decisions (subject to any restrictions or conditions contained in the LPA) that the Donor would have made himself and in reaching these decisions the Attorney must comply with The Mental Capacity Act 2005 and the Code of Practice. Under a Property and Affairs LPA the Attorney will commonly be able to pay bills and expenses, collect income and benefits, manage Bank and Building Society Accounts, buy and sell property, complete and submit Tax Returns and make gifts within the statutory limits. Under a Welfare LPA the Attorney is likely to be given power to consent or refuse particular types of healthcare, including medical treatment and may even be able to consent to or refuse life sustaining treatment on behalf of the person that has made the LPA.  The Attorney may also be able to decide whether the Donor remains in his own home or moves into residential or nursing care and also more day to day decisions such as the Donor’s diet, dress or daily routine.  LPA’s can be restricted or contain conditions limiting the Attorney’s authority.  The Donor can also, if he wishes, include guidance for the Attorney in the LPA.  This guidance is not legally binding but could be invaluable to the Attorney.

The Certificate Provider

Not only must LPA’s be signed by the Donor and Attorneys and witnessed, a Certificate must also be given by a third party, the “Certificate Provider”. A Certificate Provider is an independent person chosen by the Donor to complete a Certificate contained in the LPA to confirm that in his or her opinion the Donor:-

understands the purpose and content of the LPA; understands the extent of the powers he is giving to the Attorney; is not being pressurised, tricked or placed under duress by a third party to make the LPA; and that there is nothing else that would prevent the LPA being created.

The Certificate is vital and without it the LPA is invalid and cannot be registered. The Certificate Provider can either be someone who knows the Donor personally and has done so for at least two years or a person with the relevant professional skills and expertise to certify the LPA eg. a Solicitor, Barrister, Doctor or Social Worker.

Registering the LPA

An LPA, whether it is a Property and Affairs LPA or a Welfare LPA must be registered with the Office of the Public Guardian (OPG) before it can be used.  The registration fee is £150 and the registration process is likely to take between 6 and 8 weeks. Once registered, a Property and Affairs LPA can be used immediately but a Welfare LPA can only be used once it is registered and the Donor has lost his mental capacity to make decisions. When making the LPA the Donor can nominate up to 5 people to be notified of the application to register.  Those notified will have an opportunity to object to registration if they have concerns for example regarding the integrity of the Attorney.  It is not a requirement that persons are nominated but it is advisable. A registered LPA will be added to the OPG database and searches can be made by third parties to see whether an LPA is in existence.

Revoking an LPA

An LPA can be revoked by the Donor at any time provided he has mental capacity.  The Attorney can also disclaim the appointment.  There are also circumstances when an LPA will be revoked.  These are:-

when the sole Attorney dies or is made bankrupt.  If two or more Attorneys are appointed, the appointment of the surviving or non bankrupt Attorney will continue; when the Donor dies; when the Donor is made bankrupt (NB this rule does not apply to a Welfare LPA); when the Attorney is a spouse or civil partner and the marriage ends in divorce or the civil partnership is dissolved.  The LPA may, however, specify that the appointment continues notwithstanding such divorce or dissolution.

However, a decision to give someone authority to manage your financial affairs is not one that should be entered into lightly.

It is therefore advisable to consult a Solicitor who is a Registered Trust and Estate Practitioner with considerable experience of dealing with these types of matters if you are considering granting a Lasting Power of Attorney.