Expert Q&A: Lasting Power of Attorney (LPA) – Thursday 27 Sept, 3-4pm

[HelenQ]

Hypothetical question for experts:
My Welfare POA registered and the registration doc states that I have been appointed as Attorney. The full documentation states that if I fail to act my wife can step in.
Does the Registration document have to be modified in any way as it only mentions me not the alternative if I fail to act? How is it determined that principle Attorney has failed to act?

Hello

Without seeing the document it is not possible to give an answer to this I am afraid.

Can I suggest that you contact the OPG Helpline on 0300 456 0300 to check this point. You will be able to give them the information they need over the phone.

 

[FloraW]

Interesting as so far I have had no problems with activation of finance POA.
Dealing with Scottish situation which is fundamentally the same. Bank (Clydesdale) just insisted on typical multiple confirmation of my identity and certified copy of the POA. Then very helpful through call centre got full access to phone and internet banking. Has been in honesty incredibly easy to manage and operate. Even allowed me to sign a cheque from MIL printed chequebook without any problem.
Accesed and used bank to pay traders etc without issue for last 3 years.
Might be useful to realise that using automated phone and internet banking avoids the biggest problem.....staff in banks who don't understand POA.
Have just had to transfer all finance dealings contact address from MIL to me. Without exception has been a very simple though long winded process. Yes some have asked for certified POA but all have been very helpful.
As for Welfare POA...have only just started to have to use as a result of incapacity. Will wait and see if there are issues. My only problems were in getting the incapacity confirmed as,a result of Welfare POA document clause stipulating Dr with mental health expertise doing the assessment. In remote Scottish highlands they are not always available....But that's another story.
You really shouldn't need a book. You need to just complain if the organisation fails to deal with you, if you have the correct documentation in place and you can prove who you are.

I hold both types of LPA in respect of my mother who is in the early stages of Vascular Dementia. My mother is becoming more confused as time passes but with my help and support financial matters can be got through. I live with mum and care for her without outside help at this time. I guess mum is in the relatively early stages of her dementia path. I have two questions.
A) I want to hold off using the LPAs for as long as possible. My mum does not recognise herself as having any problems and advice I have received is allow her the belief she is in charge of her affairs for as long as possible to aid her well being. Dementia and capacity are not straightforwardbed fellows. Is it ultimately me who has to decide when the LPAs are actioned? They are registered and have no conditions on them, mum effectively trusting me to use them when should a time come it is required. I am in no rush to do so in fact part of me dreads that day coming. I fully understand my duties once I take direct charge of financial matters. I will always act in her best interests having gone into part time work to care for her more adequately. I just want to get matters right. Uncertainty seems my new companion in life in the caring role. Please can you guide me here?
B) Do both LPAs have to be acted on at the same time. I think the financial one might be needed before the health one as I will be doing all of the caring until we reach the point I will have to seek out some external help.

You are right that none of this is straightforward but the fact that you recognise this is half the battle!

It’s great that you are giving your mum support with financial matters and the way most financial LPAs are set up is designed to achieve just that i.e. they can be used even before the person loses capacity to manage their financial affairs (unless the document says not which doesn’t seem to be the case with you).That would be with the person’s consent so they should still be involved but they might just need some extra support which is what you can give.

Even if the person lacks capacity to make a particular financial decision you should still try and involve them as much as you can in terms of asking them about their wishes and preferences and thinking about decisions they have made in the past.

It’s really down to you to judge how much your mum can or can’t decide though in some cases you might want to get advice from a professional. It’s worth remembering that your mum might be able to make one decision (such as to pay a bill) and not another (such as to decide between possible investments) and her decision making abilities might vary from day to day or at different times of day.

A health and welfare power can only be used when your mum loses the ability to make the relevant decisions herself but again it’s up to you to decide (subject to professional advice if you feel you need it)

It seems that you have registered both powers with the OPG. It’s a judgement for you and your mum but you could think about making her bank /s aware of the financial LPA even if you aren’t going to make any decisions quite yet on your own. Banks are (or should be) aware that an LPA can be used whilst someone has capacity to manage their affairs and shouldn’t stop your mum having direct access just because you are recorded as LPA for support purposes. It can sometimes take a while to get an LPA set up on account so it’s worth thinking about a bit ahead. Your mum may find it easier to accept if it is done to offer her additional support rather than as you “taking over”.

I hope this helps. You might find our factsheets on LPAs and on the Mental Capacity Act useful:-

https://www.alzheimers.org.uk/sites...loads/factsheet_lasting_power_of_attorney.pdf

https://www.alzheimers.org.uk/sites...nloads/factsheet_mental_capacity_act_2005.pdf

There is also some useful guidance on the OPG website here:-

https://www.gov.uk/lasting-power-attorney-duties

 

[FloraW]

My partner suffers from Alzheimers and as it was unexpected we did not get an LPA in place in good time. Gina would not now pass a mental capacity test so would not be able to grant a POA to myself. From the information I have seen it would appear that our only option now would be to set up a deputyship, is this true or could we still get a POA in place. We would be interested in both financial and health and welfare POA. The attorney would be myself or Gina's daughter who is 25 years old.

You are probably best placed to judge but it’s worth remembering that capacity is time and decision specific so your partner could lack capacity to make one decision but not another. In other words, depending on what sort of test the fact that she “wouldn’t pass a mental capacity test” doesn’t necessarily mean that she lacks capacity to make an LPA and capacity should always be assumed until the contrary is shown.

Any decision to make an LPA should be hers and not anyone else’s.

That said, if your partner is now unable to make an LPA you are right that a deputyship application to the Court of Protection is the only option if your partner has assets (such as bank accounts or property) that need to be accessed e.g. to pay for care. If she has no assets and her only income is state benefits there is something called an appointeeship that you can set up through the DWP that allows those benefits to be paid to someone else to use on her behalf and in her best interests.

There is information about deputyships and appointeeships in our factsheet here:-

https://www.alzheimers.org.uk/sites/default/files/2018-06/6485 AS Factsheet 530(web)_0.pdf

So far as health and welfare goes it’s rare to have a general health and welfare deputyship (as opposed to an LPA) though they are possible in theory. You would normally get a one off order for a particular decision.

It’s worth remembering that even without an LPA or deputyship, under section 4 of the Mental Capacity Act anyone (such as a medical professional) who is making a best interests decision on your partner’s behalf should take into account the views of those close to her where possible.

 

[HelenQ]

Another hypothetical question.
I have Scottish Power of Attorney. Had no problems with using in England so far as it is accepted by the relevant organisations. I was told that if there was any queries that I should refer the questioner to the Scottish Public Guardians Office who would confirm the POA status and intent. What else could I do if that problem arose. Seems perverse that inter country POA have legal effect for some European jurisdictions and there not being reciprocity between England and Scotland.

You are absolutely right that this seems perverse.This is an issue with all jurisdictions and in fact there is more reciprocity between England and Scotland than between England and other places. It is all very arcane (and grey) legally. All I can suggest is that you continue as you are are. If you encounter insurmountable problems it might be necessary to involve the Court of Protection here.

 

[FloraW]

Hi;
I live with mother in the house she shared (tennants in common) with my dad. She has dementia and I have POA over her financial affairs.
When dad died recently he willed me half of the house; which has not yet been registered by the solicitor/registry as they said it's complicated and better to wait until mum dies and inherit both at the same time.
However, should mum have to go into a nursing home I will need to sell this house as it's too big/expensive to run, split the proceeds between us half/half and inform the tax office for IHT purposes (if relevant).
How do I go on with my half not "registered" but with POA over mum, would I have to have my half registered first?
Thanks!

It sounds like the legal title is now registered in the name of your mum alone if your dad has died. There is a difference between what is called the legal title and the beneficial title. If half the beneficial title has passed to you by your dad’s will you should check with the solicitors that it is clear from the Land Registry entries that the property is held beneficially by way of a tenancy in common (you having the half share that was your dad’s). There should be what is called a restriction on the title at the Land Registry to show this and I suggest you check the position with the solicitors.

You should also make clear to them that you may need to sell the house before your mum dies so they can let you know how that will be dealt with. Because you are an attorney for your mum and also a part owner it may be necessary to appoint someone else to deal with the sale proceeds but that is not insurmountable and is something that the solicitors will be able to advise you about.


In terms of paying care /nursing home fees and how the house would be treated in any local authority financial assessment you may find the following factsheet helpful:-

https://www.alzheimers.org.uk/sites...et_paying_for_care_and_support_in_england.pdf

 

[SophieD]

Now onto the questions we received via email!

"My husband has short term memory loss which is deteriorating but he is still completely able to understand what he is doing. I believe it would be wise to put Lasting Powers of Attorney in place for both of us. Would it be OK do it on line or preferable to use a solicitor, which I believe is more expensive."

 

[SophieD]

Question via email:

"Mum has FTD & in a care home, since Feb 2017, she never completed a LPA & Dad is really struggling financially. They own their house, no mortgage, Mum & Dad took out £5000 loan for a boiler Jan 2017. Dad would like to sell house to downsize & pay off debts. What can be done, if anything."

 

[SophieD]

Question via email:

"I have have mild cognitive imparment my wife is helping me with this , I really have to think most days now what I'm doing. I sent my forms off to lasting power of haterny and they sent them back forgot to put witness address , did that and it came back dates different we didn't all sign Same day I really wanted this sorting before it's too late . Now to do it all again they want to charge me £11 I am on disability benefits and quite poorly just doesn't seem to want to sort it for me they are useless."

 

[SophieD]

Question via email:

"Can I charge my parents for my travel? Cost me a lot in UK and now from new home in France, even more. Also I'm rubbish at keeping any and all receipts/accounts. Does that matter? Paying the carers loads. As I am the main beneficiary by far it feels ok buying them carers time. But as for my transport, not so sure."

 

[SophieD]

Question via email:

"I have completed an up to date Will and Powers of Attorney in Texas before I moved to the UK. Will the UK honor these when my Alzheimer’s progresses or when I die?"

 

[SophieD]

Question via email:

"My father passed away very recently and my mother’s mental state has fallen apart. Over the past few years she has had all the symptoms of dementia, specifically Parkinson’s mixed with dementia. Agoraphobia, extreme anxiety, paranoia, audio hallucinations, jumping to noises that are small or not there at all. She is confused and unable to make decisions. She mutters under her breath all her paranoid thoughts. She is very depressed. She wont clean herself, change her clothes or brush her hair. These things have been getting worse over many years gradually. Now it has become so bad she thinks the house is bugged and that she is being monitored all the time. We both are executers to my dad’s will, to make sure his wishes are carried out. I do not believe she is able to do this. (I personally do not really get that much from the Will, which is fine as I have a good job.) Ideally she and dad should have gone to a solicitor and made it so I could have LPOA. I managed to get her to a doctor who was unhelpful and just gave her tranquilizers (which she refuses to take). Not sure what to do about getting LPOA now."

 

[SophieD]

Question via email:

"I have been trying to put together a document which I can then take to a solicitor to make it official. I know what I want but I’m unable to complete it due to my Alzheimer's and Posterior Cortical Atrophy deterioration. I would like to either come to one of the talks or can someone come to my home? I live in Belfast."

 

[HelenQ]

Now onto the questions we received via email!

"My husband has short term memory loss which is deteriorating but he is still completely able to understand what he is doing. I believe it would be wise to put Lasting Powers of Attorney in place for both of us. Would it be OK do it on line or preferable to use a solicitor, which I believe is more expensive."

It’s entirely up to you. You don’t have to use a solicitor but some people find it helps. You could try having a look at the online process which is on the website of the Office of the Public Guardian (OPG) here:-

https://www.lastingpowerofattorney.service.gov.uk/home

It is quite user friendly and you can see how you get on. Alternatively you can print off and complete paper copies on the OPG website here and there is some guidance there too:-

https://www.gov.uk/power-of-attorney/make-lasting-power

You can always speak to the OPG on their Helpline which is : 0300 456 0300 or if you still feel you or your husband need some extra help you can get support with completing the online forms from an Alzheimer’s Society volunteer through our LPA digital assistance service. You can call the National Helpline on 0300 222 1122 to make an appointment. The service is free though you have to pay the fee to the OPG which is £82 per LPA (though there are some discounts if you are on a low income or benefits)

 

[SophieD]

Question via email:

"My husband (who is 65) and I moved in with my dad in early June to care for him permanently as his behaviours were becoming increasingly bizarre. The turning point was when he turned up at our local hotel with a knife saying people were attacking him in his home. He would probably have been sectioned had we not moved in.

My sister took out LPA for his property and wealth in December when he started behaving strangely but didn’t bother with his welfare. I now have LPA for his health and welfare which I took out when I returned from Spain in January to help with dad. I have suggested that we are both named on both LPAs but she had refused.

Initially my sister thought that we should pay rent as we were moving in “for free” but I managed to compromise and agree to pay all the bills and all the food as well as pay for any improvements and decorating. I also have to let her know if I’m going to use his debit card to buy him clothes or anything and kind of get permission to do so.

It has been 4 months now and to say it is completely draining and incredibly hard work is an understatement. We are unable to leave dad alone at all on advice from the social worker and dementia team. We both feel that dad should be contributing to the household bills but are apprehensive about approaching my sister as she will just say move out and sell the house and dad can go into a home. She seems unable to see beyond the fact that we are living here “rent free” and doesn’t seem to understand that we are caring for him and technically saving him a lot of money as no carers are involved. Our lives have been turned upside down.

Sorry for the rambling email but I need to know where we stand legally and whether she can ask us to move out and sell the house. I have read somewhere that as my husband is over 60 the house can’t be sold to pay for dad’s care but as she has LPA for his property can she ask us to leave, despite dad needing care."

 

[SophieD]

Question via email:

"Is there any limit that GPs can charge for signing the forms for a PoA? My previous GP wanted £165 which I couldn't afford and wouldn't have paid if I could. I have since moved area 2yrs ago can I ask my new GP to sign or do they have to know you for a certain time?"

 

[FloraW]

Question via email:

"Mum has FTD & in a care home, since Feb 2017, she never completed a LPA & Dad is really struggling financially. They own their house, no mortgage, Mum & Dad took out £5000 loan for a boiler Jan 2017. Dad would like to sell house to downsize & pay off debts. What can be done, if anything."

It sounds like maybe it is too late for your mum to make an LPA but we can’t assume she lacks the capacity to do that and capacity can fluctuate.

If she can’t make an LPA and the house is in joint names then an application to the Court of Protection would be needed for a deputy to be appointed and you’d need to say in the application that a jointly owned property needs to be sold. There is a Society factsheet on Deputyship here:

https://www.alzheimers.org.uk/sites/default/files/2018-06/6485%20AS%20Factsheet%20530%28web%29_0.pdf

The process is not that user friendly and many people find they need a solicitor to help them through it. Solicitors for the Elderly might be a good starting point as their members deal with these sorts of things on a regular basis:

https://sfe.legal/

Though make sure you get a costs quote upfront.

It sounds like your dad might also benefit from some specialist financial advice from someone like the Society of Later Life advisers:-

https://societyoflaterlifeadvisers.co.uk/

But again make sure the costs position is clear upfront.

 

[SophieD]

Question via email:

"Mother in law has recently been diagnosed with dementia. She is in a nursing home. Before she was diagnosed she had one of her sons added onto her bank account so he can do bank transfers to pay for her care home when payments are needed. There is also property and land and was wondering about how executors and poa worked as the family are all suggesting maybe selling everything off to bank that money as they are no longer needed by the family. 1 sister in america, 1 in st kitts and 4 brothers in uk. We take it in turns to go over for visits but we have found out that even though she has family there, because of her financial status were trying to fleece her of her money, hence why one of the brother's set up the bank system so we can keep an eye on her account from this side of the pond. Any advice would be greatly appreciated as we as a family are finding it very hard to trust the so called family members over in barbados. She made a will nearly 10 yrs ago just after the father in law died. All children and lawyer has a copy."

 

[SophieD]

Question via email:

"Do we have to wait for the person with Dementia/Alzheimer’s to have been assessed as lacking in mental capacity to enforce the LPA?"

 

[SophieD]

Question via email:

"My partner has just been diagnosed with Alzheimers and I'm getting LPA set up by a professional adviser while he still has capacity. My question is: once the LPAs are registered with the OPG, when and how do I use them? Will guidance be issued by the OPG with them? Or do you know of a good information source on how and when to use them please?"

 

[HelenQ]

Question via email:

"I have have mild cognitive imparment my wife is helping me with this , I really have to think most days now what I'm doing. I sent my forms off to lasting power of haterny and they sent them back forgot to put witness address , did that and it came back dates different we didn't all sign Same day I really wanted this sorting before it's too late . Now to do it all again they want to charge me £11 I am on disability benefits and quite poorly just doesn't seem to want to sort it for me they are useless."

I really understand your frustration here. It is so easy to get the forms wrong and the OPG are very strict. We are trying to work with them to improve the clarity of some of the forms.

It might help you to make an appointment with our LPA digital assistance service so that one of our volunteers can give you some support in trying to get this right. You can call the National Helpline on 0300 222 1122 to make an appointment. The service is free though you still have to pay the fee to the OPG