Expert Q&A on "Lasting Power of Attorney with the OPG" 01/02/17

[OPGOfficial]

Another current thread has led me to this question. I have used Dad's health poa for him for 3 years when it was recognised a nd agreed by all professionals dad lacked mental capacity. I am completing my forms neither the health guidance notes or the form state that when it is time for the attorney to take over from the donor do the OPG have to be notified if the LPA has already been registered. Is this requirement hidden in writing within the mental capacity act?The forms only state that if a replacement attorney takes over the OPG must be informed in writing.

OPG don’t need to be informed when you start to use the Lasting Power of Attorney if it is already registered.

 

[OPGOfficial]

Hello,
My husband has Alzheimer's dementia and although physically well, he is totally reliant on me to meet all of his needs.
I have POA (financial) and I would like to know if I am entitled to change our joint will which was made many years ago. After leaving property/savings to each other, following both of our demise, I wanted to change the beneficiaries.
Many thanks,
Bellapais

No, you can’t act on behalf of someone else in a Will, so you won’t be able to change that joint Will. LPAs don’t give authority to change someone’s Will, you will need to consult a Will maker.

 

[OPGOfficial]

Hi,
May I ask a question about Enduring Power of Attorney? It is quite specific. I am going through the EP2PG registration form. Within Part Six it asks for the date that the donor was given notice that I (the attorney) intend to register the EPA with the Court of Protection.

Mum's condition has worsened gradually over the years. I initially got the EPA signed back in 2007. She went into a care home in late 2008.

I have used the EPA in an 'unregistered' form and it has worked OK. Now I need to make some financial arrangements where the entity I am dealing with require registration.

Mum has lost mental capacity now and to advise her of my intentions would not be understood. I couldn't put an exact date on her loss of capacity.

I know it is important to make clear & honest statements on the form.

What date should I use on the form? Any ideas? The date she went into a care home? I can put some notes into Part Twelve on the form for additional notes if needs be.

Any advice welcome.

regards R

You will need to have a conversation with your mother to explain to her, she doesn’t have to understand, but you need to make an attempt to help her to understand. If you think it would cause too much distress to even bring it up, then you will need to apply to the Court of Protection. Use the date you speak to your mother on the form. You don’t need to give the date your mother lost capacity on the form.

 

[OPGOfficial]

Direct question.

Is granting LPAs as important as making a will?

The answer to this question is very personal for the individual. A Will is needed for when you pass away, and an LPA for when you are alive. Creating a Property and Finance LPA is a precaution for when you’re alive to make sure someone can look after you in your best interests if you’re not able to yourself. Creating a Health and Welfare LPA is a precaution if you lose your mental capacity and would like someone to act according to your wishes. If you don’t have an LPA in place and you lose your mental capacity, anyone can apply to the Court of Protection to gain this authority. This is a lengthier and more expensive process.

 

[Rootshalle]

You will need to have a conversation with your mother to explain to her, she doesn’t have to understand, but you need to make an attempt to help her to understand. If you think it would cause too much distress to even bring it up, then you will need to apply to the Court of Protection. Use the date you speak to your mother on the form. You don’t need to give the date your mother lost capacity on the form.

Thanks Helen, much appreciated.
And thanks to Talking Point for organising the session.
Very helpful. No it won't cause distress, it was more the point she wouldn't undertstand.

Best Regards

 

[OPGOfficial]

Great questions so far, keep them coming!

 

[OPGOfficial]

We have POA for my MiL who has Alzheimer's but live 300 miles away. MiL is currently in hospital but medical staff are not involving us with her care plan. What is the point of having a POA for health & welfare if we aren't being consulted about anything?

Have the medical staff seen your LPA? Does your mother in law have mental capacity to make these decisions about her care?

If she does, then it is her choice who is consulted about her care as health and welfare LPAs are only enabled once the donor has lost capacity. The hospital should be consulting you if your mother in law has lost her mental capacity.

 

[OPGOfficial]

Were I to go the OPG in confidence over concerns over a parent's capacity how confidential is this likely to be? Hoping GP will be the one to raise the alert on capacity.

I have a challenging sibling who is causing enormous stress all round (residential home, carers, siblings). This sibling is determined to be in total control. However, there are 3 of us and we all have LPOA for health and Welfare. I am scared of a nuclear war were it known I had gone behind backs.

All contact with OPG is confidential. Callers can also ask to remain anonymous.

Contact the Office of the Public Guardian if you have concerns about an attorney or a deputy, e.g. the misuse of money or decisions that aren’t in the best interests of the person they’re responsible for.
Telephone: 0115 934 2777

 

[Katrine]

Scotland

Why is the OPG system for E&W and Scotland so different? For example, no standard format for LPA in Scotland, necessitating solicitor to draw up documents. Guardianship only awarded for 3 years, highly intensive scrutiny, whereas deputyship is 'permanent' etc. I know it's a different legal system but why can't OPG procedures be more streamlined?

 

[Shedrech]

hello Helen
I'm wondering about the position of an Attorney, where the POAs have been registered with the OPG, (actually maybe even if they have been completed but not yet registered) then someone else appears to speak with the donor and the Attorney discovers that the donor is making moves to revoke the existing POAs and instead give powers to this new person - especially where the existing Attorney is next of kin eg a son, and the new person is either another family member eg a brother or a new 'friend' - can the existing Attorney influence the situation? would the OPG listen to their concerns and take them into account?
thanks

 

[OPGOfficial]

Why is the OPG system for E&W and Scotland so different? For example, no standard format for LPA in Scotland, necessitating solicitor to draw up documents. Guardianship only awarded for 3 years, highly intensive scrutiny, whereas deputyship is 'permanent' etc. I know it's a different legal system but why can't OPG procedures be more streamlined?

We are constantly working with users to improve our services and the process. We are constrained by the legislation but we do use the feedback from users to propose changes to this legislation for example we have removed the necessity to have a person to notify and have reduced the statutory waiting period from 6 to 4 weeks. The Mental Capacity Act only applies to England and Wales.

 

[OPGOfficial]

hello Helen
I'm wondering about the position of an Attorney, where the POAs have been registered with the OPG, (actually maybe even if they have been completed but not yet registered) then someone else appears to speak with the donor and the Attorney discovers that the donor is making moves to revoke the existing POAs and instead give powers to this new person - especially where the existing Attorney is next of kin eg a son, and the new person is either another family member eg a brother or a new 'friend' - can the existing Attorney influence the situation? would the OPG listen to their concerns and take them into account?
thanks

OPG will listen to their concerns.
Does the donor have capacity? If the donor has capacity then they have the right to make their own decisions about revoking or making a new LPA.

If the donor revokes the original LPA, OPG will notify the attorney who can then raise any concerns. If the donor has capacity they can contact OPG and we will advise them.

We only have jurisdiction to investigate concerns if the LPA is registered and the donor has lost their capacity.

 

[Saun_A]

That's all we have time for on this Q&A.

I would like to take this opportunity to thank Helen from the OPG for answering our questions and taking time out from her busy schedule to do so.

We will soon be adding an FAQ document on LPA created by the OPG on Talking Point so everyone can benefit from it.

Remember you can ask any further questions in the Legal and financial issues section of Talking Point and the community will be able to contribute to the discussion as always.

Thank you everyone for joining us today and I would like to say thank you to Helen in particular for this.

Kind regards,

S.

 

[OPGOfficial]

Thank you very much for all your questions!

 

[AngelaM]

The hospital staff need proof that you have POA, you would not be happy if A N Other rang in saying that had POA and the staff co-operated.

You could offer to email/FAX them a copy.

As a longer term provision you could try and get it noted in her health records by her GP in a way that any hospital would have access.

Setting up a password with the hospital is another way but unfortunately any password may only be valid for a discrete admission.

Hi Nitram, the hospital have already been provided with access to the POA as the care home my MiL lives in already hold a certified copy in the medical notes they provided to the hospital on a previous admission. This is what is so frustrating.

 

[nitram]

Hi AngelaM

You could try contacting PALS (Patient advice and liaison services) and see if they can help you. You can find the local contact using http://www.nhs.uk/Service-Search/Patient advice and liaison services (PALS)/LocationSearch/363

If they consider your MIL has capacity she could be asked to give permission for you to know details, hopefully she will agree and this consent can be recorded in her notes.

If they consider she lacks capacity the assistance of the POA should be recorded.

It would also be useful to agree and record a password so that you can identify yourself when calling.

 

[tigerlady]

Hi,
May I ask a question about Enduring Power of Attorney? It is quite specific. I am going through the EP2PG registration form. Within Part Six it asks for the date that the donor was given notice that I (the attorney) intend to register the EPA with the Court of Protection.

Mum's condition has worsened gradually over the years. I initially got the EPA signed back in 2007. She went into a care home in late 2008.

I have used the EPA in an 'unregistered' form and it has worked OK. Now I need to make some financial arrangements where the entity I am dealing with require registration.

Mum has lost mental capacity now and to advise her of my intentions would not be understood. I couldn't put an exact date on her loss of capacity.

I know it is important to make clear & honest statements on the form.

What date should I use on the form? Any ideas? The date she went into a care home? I can put some notes into Part Twelve on the form for additional notes if needs be.

Any advice welcome.

regards R

If you have the old EPA form, it should have been signed by you and your mother at the time, ie before the end of September 2007, and witnessed by an independent witness. My husband and I did one for each of us at that time "just in case" and he did develop alzheimers and eventually had to go into care in 2014. I then registered the EPA. It didnt need any more input from my husband for it to be registered. I think I just put on the form that he had been sectioned in June 2014 and that he had to go into care after that.