Solicitor requesting medical info

[Spiro]

Haven't posted on this forum for a while, but the situation that I'm dealing with is as follows:-

Relation moves into a home and shows signs of short term memory loss. Referred to CMT and MMSE score is 30/30. Diagnosis is short term memory loss. They seem to settle in to home quite well. In the interim they appoint me as Attorney for H & W, but solicitor has LPA for P & F. They then say they want me to find a new solicitor - I suggested someone from Solicitors for the Elderly- to revoke the current LPA and appoint me instead.

The next thing I know the care home manager informs me that they have told the solicitor that my relation has dementia and that they have been talking about a will! I contact GP and am told that current solicitor has written to them asking questions. As I have LPA for H&W, can the solicitor request this information?

AS helpline advisor informs me that the manager should have asked my relative for permission prior to contacting the solicitor and before speaking to me about the will. My relation was furious that this had happened, but went on to explain the situation.

I've never encountered a care home manager like this in the past.

I want to act in my relation's best interests, but at the moment it seems like an uphill struggle. Your thoughts would be appreciated.

 

[Beate]

I'm guessing the solicitor is asking the medical questions to ascertain whether she has lost capacity, something he needs to know if she was to make or change a will or revoke the LPA. If she still has capacity which you seem to think then she can make a will and revoke the LPA but you cannot act as health attorney yet, as that can only be acted upon once capacity is lost. If she no longer wants to deal with this solicitor, she should be able to tell him herself to back off.

Why does she need a solicitor to revoke her LPA anyway? There is a process but I believe it only involves writing a letter to the OPG revoking it. Then she can draw up a new one, which also does not require a solicitor. If you are already attorney for health, it would make sense you became attorney for finances as well.

https://www.gov.uk/power-of-attorney/end

 

[Raggedrobin]

Beate, the solicitor was being asked to prepare a will, if I understand the post correctly. Changing the LPA being a separate issue. I don't know about the righrs and wrongs of the situation but it does seem odd for the care home manager to contact a solicitor directly. I presume the resident had been requesting this.

I agree the solicitor had done nothing wrong, he is presumably just doing his job checking if the resident had capacity. I'm not sure what has been done comes under health and welfare LPA, as that is more to do with actual health and the comfort of the person. It strikes me that wills would come under the finance LPA but I am sure someone will come along who knows more about it.

I'm not sure who 'they' is that you refer to who want to change solicitor and appoint you with LPA for finance? Are they closer relations to the resident? I would be interested to know if one can change LPA if someone (and she may not yet) be considered not to have capacity. Who is allowed to make that change. Sorry Spior, more questions than answers!

 

[Spiro]

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[Spiro]

My relation did not ask the manager to contact the solicitor, so they don't know this has happened. They do not have an assertive personality and have placed great trust in the solicitor.

Beate, the solicitor was being asked to prepare a will, if I understand the post correctly. Changing the LPA being a separate issue. I don't know about the righrs and wrongs of the situation but it does seem odd for the care home manager to contact a solicitor directly. I presume the resident had been requesting this.

I agree the solicitor had done nothing wrong, he is presumably just doing his job checking if the resident had capacity. I'm not sure what has been done comes under health and welfare LPA, as that is more to do with actual health and the comfort of the person. It strikes me that wills would come under the finance LPA but I am sure someone will come along who knows more about it.

My relation did not ask the manager to contact the solicitor, so they don't know this has happened. They do not have an assertive personality and have placed great trust in the solicitor.

I'm not sure who 'they' is that you refer to who want to change solicitor and appoint you with LPA for finance? Are they closer relations to the resident? I would be interested to know if one can change LPA if someone (and she may not yet) be considered not to have capacity. Who is allowed to make that change. Sorry Spior, more questions than answers!

Beate, the solicitor was being asked to prepare a will, if I understand the post correctly. Changing the LPA being a separate issue. I don't know about the righrs and wrongs of the situation but it does seem odd for the care home manager to contact a solicitor directly. I presume the resident had been requesting this.

I agree the solicitor had done nothing wrong, he is presumably just doing his job checking if the resident had capacity. I'm not sure what has been done comes under health and welfare LPA, as that is more to do with actual health and the comfort of the person. It strikes me that wills would come under the finance LPA but I am sure someone will come along who knows more about it.

I'm not sure who 'they' is that you refer to who want to change solicitor and appoint you with LPA for finance? Are they closer relations to the resident? I would be interested to know if one can change LPA if someone (and she may not yet) be considered not to have capacity. Who is allowed to make that change. Sorry Spior, more questions than answers!

 

[Spiro]

My relation did not ask the manager to contact the solicitor, so they don't know this has happened. They do not have an assertive personality and have placed great trust in the solicitor.

 

[Jessbow]

Its possible the care home manger has asked if they have made a will. Maybe she has, but has forgotten, so replied 'no'. ?

I don't think wills come under health and welfare, they would come under finance.

I would expect, under these circumstances, for the solicitor to ask the GP about capacity to make/ change a will. Solicitor is acting correctly.
Why would you/ she want to change solicitor?

 

[Spiro]

After I told her that I had LPA for P & F for my mum, she realised she did not need a solicitor to manage her finances. She has realised that it would be much cheaper if I did it - I don't charge £200 an hour!

I told my relation that the manager had asked about the will, and she then showed some correspondence from the solicitor whom she met with last year. The fact that the manager contacted the solicitor without discussing the situation with my relation first, is a cause for concern.

 

[Shedrech]

hi Spiro
might I ask
does your relation have a diagnosis of dementia, as from your initial description that does not seem to be the case
even if there is a diagnosis, that doesn't necessarily mean that your relation no longer has capacity to manage her own affairs and make her own decisions - indeed you do not seem to think that she no longer has capacity, so your LPA for health & welfare isn't yet active
she may have set up the LPA for property and finance with her solicitor as Attorney and asked the solicitor to deal with her finances, but that doesn't mean, to me, that the solicitor has free rein, they may only follow instructions, I believe
when/why did your relation ask you to find another solicitor
I too would be concerned that the manager contacted the solicitor and that the solicitor contacted the GP without a specific request and authorisation from your aunt - though it's not always easy to be sure of what actual conversations have occurred - might your relation have forgotten a discussion; I appreciate that you don't seem to believe this is the case
did the GP answer the solicitor's enquiry - as I'm not sure even a solicitor/Attorney for finance has the right to such information without your relation's permission, under GP/patient confidentiality
not sure what the next steps are - is it possible to have a conversation with your relation with a neutral person present - then simply ask her what she would like to have happen without any prompting
as it is, she does, finally, have control over what happens as she doesn't have to sign any documents put in front of her unless she wishes to - an Attorney cannot set up and sign a will for a Donor- and only the relative can rescind the Attorneyship

 

[northumbrian_k]

Why does she need a solicitor to revoke her LPA anyway? There is a process but I believe it only involves writing a letter to the OPG revoking it. Then she can draw up a new one, which also does not require a solicitor. If you are already attorney for health, it would make sense you became attorney for finances as well.

Beate is correct @Spiro. Having just done it myself, I can confirm that revoking a LPA is a simple matter of preparing a Deed of Revocation using the form of words prescribed on the OPG website.

This then needs to be signed by the Donor (who must have capacity to do so at that time) and the signature witnessed by someone other than an Attorney. The Deed and original of the Power of Attorney than need to be sent to OPG.

If you then want to remake the Power of Attorney with you as Attorney this is easy to do using the OPG website. It now costs £82 unless the Donor qualifies for reduction of fees. Once again, the Donor must have capacity when signing the form.

 

[Raggedrobin]

Yes I think that is the key to this. Whether or not the Donor has capacity to create a change of attorney. Anyone know how it works if they haven't, out of interest?

 

[Beate]

Simple, if they haven't they can't make any changes or wills etc anymore.

 

[Raggedrobin]

But it must be possible to change attorney?

 

[Beate]

Not after loss of capacity, no.

 

[Pete R]

But it must be possible to change attorney?

I think only the Court of Protection have that power.

 

[Beate]

But they won't do it just because someone suddenly figured that a solicitor as attorney costs too much money. They'd only remove an attorney if there were serious concerns or disputes or something.

 

[Raggedrobin]

Or is an attorney ceased to want to be one, or died?

 

[Beate]

I think then the LPA would cease with them, which is why it's a really good idea to have more than one attorney, or a replacement attorney. That's what they're there for.