Advice re Lack of mental capacity, banking, pension and deputyship

[James Vardy]

This forum has significantly enhanced my understanding of how life changes for all involved when a close relative/friend becomes affected by alzheimer's. Thank you to those who support and have contributed to the website.

My father-in-law moved to a care home mid November 23. Following several GP visits to the care home and an MRI brain scan at local hospital, FIL received a dementia diagnosis end of March (advanced alzheimer's). He is self funding and thankfully in an excellent care home.

FIL's GP provided an official 'to whom it may concern...has lost mental capacity' letter for my mother-in-law's use. LPA is not in place, primarily because FIL's long term friends felt uneasy about being certificate provider, due to his obvious deterioration.

My understanding is that MIL (or MIL and others) can apply for deputyship, in order to manage FIL's financial affairs and I'm hoping for some advice in that area.

Is there a legal obligation to apply for deputyship in this scenario, or is it simply an option?

If deputyship is sought, would we need an appropriate professional to complete the COP3 mental capacity form or will the 'to whom it may concern' letter from the GP suffice?

If an independent 'professional' is required to complete COP3 / carry out mental capacity assessment, how do we find such an individual? Are they regulated by a government scheme or approved by local authority or similar?

Is there a legal obligation to inform FIL's banks, building societies, private pension provider, state pension provider that he has lost mental capacity?

Under LPA, my MIL is currently a donor. Due to the pressures MIL faced caring for FIL for several month prior to his transfer to a care home, my wife applied to be her financial affairs LPA (at MIL's request). The LPA was approved end of January - however, by this time MIL had recovered from the physical, mental and emotional stresses of being plunged into being a full time carer and as such, the LPA hasn't been activated, as it hasn't been needed. If MIL is named as a prospective deputy on the application form, will the fact that she's an LPA donor adversely affect the deputyship application? I guess if it does, the LPA could be cancelled before she applies for FIL's deputyship?

 

[SAP]

Hi @James Vardy and welcome. I can answer some of your questions.
Yes your MIL can apply for deputyship and no it is not a legal obligation for her to do so. However if she does not then someone has to and that could be social services. If she does not wish to go through this process, is there another family member who can. It is a lengthy process and can be very time consuming for the deputy with the regular reports to the COP etc. How is she managing to currently pay for his fees ?
I can also let you know that being a donor does not prevent you from applying for anything. I am attorney for my mum and my husband and children are attorneys for me ( when/ if the time comes)
With regards the COP questions there will be others along soon I hope who have a vast amount of expertise and knowledge in this area.

 

[thistlejak]

Hi @James Vardy - sorry to hear you find yourselves in this situation.

As @SAP says 'someone' will have to apply for deputyship - We - husband and I - applied for his parents who both had dementia. I would advise more than just MIL as Deputy and do it 'joint and several' so you can act independently and it would future proof the Court order if MIL wanted to sell house/downsize at some point as she can't act for herself and FIL in that situation - also ask to be able to sell the house in the initial application as it saves having to submit another one later on for an additional fee.

With regards to COP3 - I would suggest you contact the COP and ask if the GP's letter will suffice - if it won't we used an independent social worker that we found on the internet - we just chose the one that was most local to us.

We didn't tell the in-laws banks etc until we had the Deputyship Order - in fact we had to get an interim order to find out where they had money as we didn't know much about their finances. We did inform DWP for State pension and AA as they changed address. With regards to State pension you can apply for Appointeeship from DWP - this gives control just over state benefits - but only one person can do this - they don't do joint applications.

Another thing that we did was split any joint monies from the date FIL went into care ( he went into care 6 months before MIL ) - we took a note of balances on that date and retrospectively split the money into individual accounts.

Hope this helps a bit - the forms look daunting and the thought of doing the annual report and account for every last penny is scary but doable.

 

[James Vardy]

Hi @James Vardy and welcome. I can answer some of your questions.
Yes your MIL can apply for deputyship and no it is not a legal obligation for her to do so. However if she does not then someone has to and that could be social services. If she does not wish to go through this process, is there another family member who can. It is a lengthy process and can be very time consuming for the deputy with the regular reports to the COP etc. How is she managing to currently pay for his fees ?
I can also let you know that being a donor does not prevent you from applying for anything. I am attorney for my mum and my husband and children are attorneys for me ( when/ if the time comes)
With regards the COP questions there will be others along soon I hope who have a vast amount of expertise and knowledge in this area.

Hi SAP and thanks for taking the time to reply. Just to clarify, MIL is currently an LPA donor, in that my wife applied to be MIL's financial LPA with immediate effect, as opposed to ticking the 'on losing capacity' box. The LPA hasn't been digitally activated or physically used. I'm wondering whether this fact will have an impact on a deputyship application should MIL make one for FIL. She'd prefer to make the application solely, as she says there are joint savings and investments she wants to keep full control of (which is fair enough). My wife has offered to be joint deputy with MIL, although it's not something she'd relish and she has a demanding full time job too. We have to respect MIL's wishes, but offered her support all the same.

Care home fees are paid from MIL+FIL joint bank account. Significant funds were moved into it as a precaution around xmas, before FIL's diagnosis. FIL was able to sign cheques (and understand what they were for) for the first two months of residential care. MIL has been signing the cheques since.

 

[SAP]

A person can be a LPA donor at any point in their lives and not have the mental capacity box ticked. It just means that once it is registered , it can be used if and when needed. Both my husband and I have ours done and registered to be used if needed. This would not stop us being a deputy if needs be for someone else , only a lack of capacity would prevent this.

Who can act as a Deputy?​

Deputies are usually relatives or close friends of the person lacking capacity, but this isn’t a legal requirement.
A Deputy must be:

• A person aged 18 or over who has mental capacity; or
• A professional deputy appointed by the court; or
• A holder of a specified office or position such as a director of adult social services.

Applying to the Court of Protection to be a Deputy - Your Questions Answered

If someone loses mental capacity and can no longer make their own decisions, the Court of Protection can appoint a Deputy to manage their affairs. In this detailed guide we look at how a Deputyship application works in England and Wales and how you can make an application to the Court of...

www.backhouse-solicitors.co.uk

How to apply to become a deputy for a person with dementia

Find out about the deputyship application process and what happens after you become a deputy.

www.alzheimers.org.uk

 

[James Vardy]

Hi @James Vardy - sorry to hear you find yourselves in this situation.

As @SAP says 'someone' will have to apply for deputyship - We - husband and I - applied for his parents who both had dementia. I would advise more than just MIL as Deputy and do it 'joint and several' so you can act independently and it would future proof the Court order if MIL wanted to sell house/downsize at some point as she can't act for herself and FIL in that situation - also ask to be able to sell the house in the initial application as it saves having to submit another one later on for an additional fee.

With regards to COP3 - I would suggest you contact the COP and ask if the GP's letter will suffice - if it won't we used an independent social worker that we found on the internet - we just chose the one that was most local to us.

We didn't tell the in-laws banks etc until we had the Deputyship Order - in fact we had to get an interim order to find out where they had money as we didn't know much about their finances. We did inform DWP for State pension and AA as they changed address. With regards to State pension you can apply for Appointeeship from DWP - this gives control just over state benefits - but only one person can do this - they don't do joint applications.

Another thing that we did was split any joint monies from the date FIL went into care ( he went into care 6 months before MIL ) - we took a note of balances on that date and retrospectively split the money into individual accounts.

Hope this helps a bit - the forms look daunting and the thought of doing the annual report and account for every last penny is scary but doable.

Hi thistlejack, Thanks for replying and for the sympathetic words. This thread must appear rather cold and business-like, actually MIL in particular and wife have been through the wringer autumn and winter. The dust has settled now and all have come to terms with the situation, meaning practical aspects are being addressed.

Good tip re 'joint and several' on deputyship application, I'll feed back that reasoning to MIL.

I had suggested to my wife that MIL informing banks might make things even more difficult for her. Personally I would take your approach, just that I was unsure whether there was a legal obligation to inform banks about loss of mental capacity. Internet searches reveal ambiguity in this area. - eg some banks freeze even joint accounts while others are more flexible.

 

[James Vardy]

A person can be a LPA donor at any point in their lives and not have the mental capacity box ticked. It just means that once it is registered , it can be used if and when needed. Both my husband and I have ours done and registered to be used if needed. This would not stop us being a deputy if needs be for someone else , only a lack of capacity would prevent this.

Who can act as a Deputy?​

Deputies are usually relatives or close friends of the person lacking capacity, but this isn’t a legal requirement.
A Deputy must be:

• A person aged 18 or over who has mental capacity; or
• A professional deputy appointed by the court; or
• A holder of a specified office or position such as a director of adult social services.

Hi Sap, I had searched high and low for this 'donor being deputy' scenario but nothing forthcoming. However, you have highlighted to me the key attribute of a deputy 'must be a person aged over 18 or over who has mental capacity'. So...as MIL has mental capacity and is over 18 she meets the criteria, irrespective of the fact she's already registered at OPG as a donor. That makes sense - thanks!

In conversations with my wife, I had argued 'how can your mum (the donor) be a deputy, as surely the appointed attorney has the legal right to make financial decisions for everything the donor is responsible for, therefore the attorney also has a legal right to control the deputyship granted to the donor'. Maybe I'm over thinking this somewhat.

 

[SAP]

Maybe you are. These things are fraught with misinformation and complexities. Whilst some people like you and I go over every possible scenario to ensure we do the right thing, others just use the law to take advantage. All the best.