Lasting Power of Attorney worries

twinklybongle

Registered User
Jul 28, 2014
5
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My father has been diagnosed with mixed dementia, and we have no Lasting Powers of Attorney in place for either him or my mother. My mother, me and one of my siblings want to get LPAs in place as soon as possible, but my other sibling does not want this to happen, feeling that LPAs are simply a device for solicitors to make money, and that if the three of us are in agreement about what we want for our parents, the LPAs are unnecessary. My mother doesn’t want the LPAs set up unless all three of her children are Attorneys.

How can we convince my sibling that sorting out LPAs is the right thing to do? Is it actually the right and best thing to do? Could anyone give me examples of how much more difficult things become without the LPAs in place? Is it true that having to go to the Court of Protection is very expensive and time-consuming? If one sibling isn’t an Attorney, can they “block” any decisions that we make? Sorry, questions, questions.

All three of us want the same thing, to look after our parents in the best way possible, we need to be united as a family, but this is already creating so much tension and upset, it’s the last thing my mother needs on top of the difficulties of day-to-day care for my father.
 

CJinUSA

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Jan 20, 2014
1,122
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eastern USA
In our family, there are four daughters, and my mother has dementia. We all are in agreement about things, but only two of us have the financial and health POAs. It's written in such a way that one of the POA people, acting in concert with at least one other of the daughters, will make the decisions. We did it this way so that if one of us POAs dies or is incapacitated, the other can act. In effect, I am the one who uses the POAs in my mother's behalf. The issue with *everyone* having this, here at least, would be that everyone needs to be on board and sign instruments. This is not possible as we are quite distanced from one another, several states intervening. I think one or two POAs in your family could work it out, especially if everyone is - it seems - on board. You DO need this legal coverage, because dementia people can't make good decisions on their own, and without this, you can't handle the finances or assist with medical decisions.
 

Beate

Registered User
May 21, 2014
12,179
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London
You don't need any solicitors to make an LPA. You can fill in the forms entirely yourself, there is an easy online tool. The only fees you will have to pay are the registration fees of £110 per LPA, and if your mother is in receipt of certain benefits it might not cost anything at all. If she gets less than £12,000 a year, it's half price.

And of course it's the right thing to do. LPAs are very necessary as it doesn't matter to a bank whether you are in complete agreement - they won't let you handle her financial affairs without one.
 

WILLIAMR

Account Closed
Apr 12, 2014
1,078
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With regard to going to the court of protection I was told by a lady it cost £2,000 in total a few years ago.This was for an aunt. There were on going fees and the aunt lived for about 2 years.
Members of the family objected to it being issued. The lady was the beneficiary of the aunts will and the other members of the family were not pleased about this.
When they realised it did not give them authority to spend the aunts money as they liked they were not interested.
I don't know if these objections caused more expense.

William
 

Saffie

Registered User
Mar 26, 2011
22,513
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Near Southampton
With regard to going to the court of protection I was told by a lady it cost £2,000 in total a few years ago.
It doesn't have to cost quite this amount though cost do mount up over years.
£2,000 for 2 years sound a lot but a lot depends on the size of the estate.
I paid £400 for the application and another £400 for permission to sell a holiday chalet. Annual supervision fees used to be dependent on the level of supervision which in turn is related to the size of the estate but are now around £320 for all over £21,000, £35 if below.
There is a Bond which one has to buy, mine involved a single payment but I gather others may have to pay annually. It's a type of insurance policy in case the Deputy absconds with the money!
The Deputyship is closely scrutinised though by way of an anuual report which has to be submitted and every penny has to be accounted for. It is pretty onerous.

An LPA is vital if anyone is to have access to your father's capital. A bank can freeze the assets of a dementia sufferer once they become aware of the fact and even a joint account holder may not be able to access their cash. This is to protect the other person.
In these days of internet banking, it is possible to evade dementia being recognised but is it really worth the risk?

If only state pensions are involved then becoming a DWP appointee is sufficient but for everything else, an LPA is necessary.
 

PeggySmith

Registered User
Apr 16, 2012
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BANES
You don't need any solicitors to make an LPA. You can fill in the forms entirely yourself, there is an easy online tool. The only fees you will have to pay are the registration fees of £110 per LPA, and if your mother is in receipt of certain benefits it might not cost anything at all. If she gets less than £12,000 a year, it's half price.

And of course it's the right thing to do. LPAs are very necessary as it doesn't matter to a bank whether you are in complete agreement - they won't let you handle her financial affairs without one.
MIL has two sons both attorneys. I got the form and filled it in for them all and talked MIL through it. It's quite easy if you take your time and the OPG people will answer questions if you get stuck.

Without LPA, you have no access to your mum's finances if it gets to the point where she can't cope for herself. That means that you can't pay any bills or, well, do anything to help her financially at all. If it does get to that stage you have to go through the court of protection which is more expensive and takes a lot of time.
 

Nebiroth

Registered User
Aug 20, 2006
3,510
0
My father has been diagnosed with mixed dementia, and we have no Lasting Powers of Attorney in place for either him or my mother. My mother, me and one of my siblings want to get LPAs in place as soon as possible, but my other sibling does not want this to happen, feeling that LPAs are simply a device for solicitors to make money, and that if the three of us are in agreement about what we want for our parents, the LPAs are unnecessary. My mother doesn’t want the LPAs set up unless all three of her children are Attorneys.

How can we convince my sibling that sorting out LPAs is the right thing to do? Is it actually the right and best thing to do? Could anyone give me examples of how much more difficult things become without the LPAs in place? Is it true that having to go to the Court of Protection is very expensive and time-consuming? If one sibling isn’t an Attorney, can they “block” any decisions that we make? Sorry, questions, questions.

All three of us want the same thing, to look after our parents in the best way possible, we need to be united as a family, but this is already creating so much tension and upset, it’s the last thing my mother needs on top of the difficulties of day-to-day care for my father.

First, there are two sorts of LPA; one is Financial (for financial affairs), the other is Health and Welfare (which covers health matters mainly)

If no one has a financial LPA for your dad then no one has a legal right to manage his finances for him. Basically, you would have no access to his bank accounts, pensions, be able to pay bills for him, receive/apply for benefits on his behalf, or anything else like that. Some of this may be possible if he has say a joint account, or someone arranges to be an appointee with the DWP, etc, but if you are an attorney it is all very easy and simple. A financial LPA can come into force at any time, although it is possible to include a condition in it where it only does so when the person loses mental competence to manage their own affairs. Basically, a Financial attorney can do anything he can himself in money matters, unless the LPA itself places restrictions.

Likewise, a health and welfare attorney has a legal right to be involved in decisions about his health and can under certain circumstances make legally enforcable decisions for him - this might mean, for example, giving permission for certain procedures, issuing a Do Not Resuscitate instruction, being able to find out more about his medical condition. Many people think relatives and "next of kin" have these legal rights...they don't! This sort of LPA can only come into force once the person is no longer able to make decisions for themselves.

Neither of these has to be set up via a solicitor. However, usually this is a good idea if the LPA's are to include, for example complicated conditions. But most people do not have those.

Both of these LPA's can name anyone as an attorney. It does not have to be a family member. There can be different attorneys for each one if that is what the person wishes. There can be more than one attorney for either type; most LPA documents with more than one attorney enable them to act "jointly and severally". This means they can act either together or individually, and each have the same authority. If they are joint only, then all attorneys must jointly agree before they can perform any action. This can be very inconvenient. If I recall correctly, if it is joint only and one attorney ceases (for example they pass away) then the LPA itself become void. If they are "severally" named the other can simply carry on.

A non-attorney cannot block decisions made by an attorney. They can only lodge a complaint with the Court of Protection. This complaint could for example claim that an attorney was taking advantage to benefit themselves or failing in their duties in some way.

If there is no LPA set up and one or more of you needed to take control of your dad's affairs you would need to apply for Deputyship via the Court of Protection. This is a much more complicated, lengthy and expensive process because the Court is giving control of someone's affairs without their permission (and often without their knowledge). I have never heard of the Court making someone a Deputy for anything other than Financial.

I would say this: everyone I have ever seen on here who has had an LPA set up and has then needed it has been very glad indeed of it. Likewise, everyone who has needed to take control of someone else's affairs but where there ie not LPA set up has bitterly regretted it.

It is my opinion that everyone should set up and LPA if they possibly can. I would very strongly recommend that you set up one with your dad whilst it is still possible. Note that his three children being in agreement about anything has very little significance in the law. Certainly it would not give you any access at all to his finances for example.
 
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turmoil

Registered User
Feb 3, 2013
239
0
West Yorkshire
I Applied for poa for both financial and health and welfare, on line £110 for each, for my Dad. I added two siblings to be told of this, they were given 4 week to object, there was no desire of objection. Certificate provider is a friend of Dads. It took 4 month to come through, but £220 total and Dad had been diagnosed 3yr.

It is not hard to do it yourself.

Turmoil


Sent from my iPad using Talking Point
 

Katrine

Registered User
Jan 20, 2011
2,837
0
England
Warning, a very long reply!

You asked for examples of how things would be difficult without POA. Here are some examples, based on my own experience, of situations that could be very difficult for you children to manage without registered financial and property POA:

  • Parent draws out large amounts of cash on a regular basis and loses it or gives it away

    Parent uses their credit/debit card to pay for unnecessary goods and services, and scams

    Parent's house needs repairs or adaptations

    You need to purchase or hire goods or equipment to assist a disabled parent with daily living

    You need to contact utility and insurance companies where the contract is in the parent's name, including renewal of agreements and making claims

    You need to contact the Inland Revenue or DWP regarding parent's tax or benefits

    You need/want to change parent's bank accounts or investments

    You need to set up bank approved access for online banking

    You need to draw cash, write cheques, or pay bills on behalf of the parent

    You want to sell parent's car

    You need to sell or otherwise dispose of parent's goods and moveable property

    You need to sell or rent out parent's home or other real property

    You need to pay for care services, both at home and in a residential setting


All of the above have applied in our family with regard to either my husband's mum or my mum.

OH has financial POA for his mum (not welfare). Things have therefore been straightforward. He has a whiny sister who was very put out when, after 10 years of acting as their mum's attorney, the time came for OH to register the POA. This is the old Enduring Power of Attorney that could be activated without registration, and then you register it when the adult loses mental capacity. The new LPA system is a bit different. His sister saw it as a power thing, that all the children should have equal say, and the right of veto. Of course she didn't want any of the hard work of being an attorney, she just wanted to pick up the phone to raise objections and issue instructions.

Once SIL understood that she could only object to OH's registration as attorney on very specific legal grounds, and that the alternative was for an expensive solicitor to become her mother's Deputy, she shut up about it. She had a good moan on the phone to OPG first though, and they just confirmed what we had already told her and shown her in the EPA guidance notes. She is someone who usually gets her own way by nagging, but fortunately this is a situation where nagging and "but it's not fair to me" has no effect!

IMO this is a jolly good reason to have sole POA, otherwise you could have conflict between attorneys. Your mum needs to be warned about the danger of joint attorneys pulling in different directions. She probably thinks appointing you all gives her and your dad protection from any one child making unwise choices. However, the law is clear that if you make someone your attorney then you trust them. Individuals have attempted to hedge their POA with restrictions and ifs, buts and maybes. These just get overruled by the COP, and all the embroidery is ripped out!

Your parents must not set you up for a fall. If one attorney complains to OPG about the actions of another one, there is a risk that the powers that be might deem this to be an unworkable situation. In extreme cases a solicitor could then apply to be Financial Deputy and the local authority to be Welfare Deputy. How expensive would all that be, and how much would it NOT benefit your parents and their children!


With my mum, she granted her POAs to people who were unwilling and eventually unable, for practical reasons to be her attorneys. For 6.5 years I have been doing 95% of the role, but without legal authority. While she still had capacity she authorised my brother to deal with her investments and made her 2 current a/cs joint with me. This has saved our bacon because here in Scotland a joint a/c holder can continue to manage the funds when the other loses capacity. I can pay her bills online and draw cash. Since I live 500 miles away and generally only visit every few weeks, this is essential.

Last winter I began the process of applying for Guardianship, which is the Scottish equivalent of Deputyship in England. This is a length and expensive process, and once I am appointed will involve much more ongoing paperwork and scrutiny by the OPG. I wish I had POA, but my mother would never have given it to me, she favoured my brother and trusted him to take care of all her future wants and needs. Big HA HA to that one!

I decided I needed legal authority to manage my mum's financial and property affairs, and health and welfare, for the following reasons:

She needs grant-aided adaptations to her home and only the home owner or attorney/deputy/guardian can authorise this. Without legal authority you are ineligible to apply for government funding. I applied to have the adaptations in November last year. It took 6 months for her to be 'prioritised' (big HA! to that one too) for OT assessment, without which you cannot get assessed for house adaptations support by the Council. Then I've had meetings about plans, site visits, and finally signed the contract paperwork last week, brandishing my interim Guardianship order (newly arrived). Without this the Application could not go forward to the Council Grants Officer. I reckon we still won't get works started until October, which means it will have been nigh on a year before an 89 year old disabled woman gets the adaptations she needs for safety and personal care. If I had been her attorney I would have stamped my feet and got things moving faster, but I have been waiting 7 months to get Guardianship as far as the local court (delay caused by another part of the Council's SS deciding that it was not a priority, but that's another story and is specific to the Scottish system).

My mum's house also needed minor works to create more living space and for this a Building Warrant was needed from the Council (which I applied for in my name). Luckily my interim Guardianship order arrived just before I had to send in the completion of works form, otherwise they would not have been able to issue the completion certificate to me.

My mum might need to go into nursing care in the future and lacks capacity to make decisions or to contract for residential care services. She might also need medical treatment to be authorised. So far I have got away with brandishing the existing welfare POA but now the Attorney has said he doesn't want to do it any more someone else has to take over.

OH will be joint Guardian with me, but I will still be doing the majority of the work, with advice and support from him. However, he will be authorised to do anything that I would do, should it be necessary for any practical reason.


A very long saga, but I hope it gives you plenty of ideas to share with your family. Plan for the worst, hope for the best. Crossing your fingers and hoping to get by without legal authority is not a sensible strategy. It is technically possible to get legal authority granted in emergency by the courts for specific time-limited actions, but that would cost a lot more than just getting the POA set up in a timely manner.
 
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Canadian Joanne

Registered User
Apr 8, 2005
17,710
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70
Toronto, Canada
It is possible for two or more attorneys to agree. My sister and I have been the PoAs for my mother for ove 13 years now. We are in agreement that Mum's money is for Mum's care and haven't had any disagreements. I handle basically everything on a day-to-day basis as my sister lives over 300 miles away.

But I have heard horror stories about attorneys at cross purposes.
 

edwardbs

Registered User
Jul 30, 2014
19
0
Lichfield Staffs
Not a solicitor

My father has been diagnosed with mixed dementia, and we have no Lasting Powers of Attorney in place for either him or my mother. My mother, me and one of my siblings want to get LPAs in place as soon as possible, but my other sibling does not want this to happen, feeling that LPAs are simply a device for solicitors to make money, and that if the three of us are in agreement about what we want for our parents, the LPAs are unnecessary. My mother doesn’t want the LPAs set up unless all three of her children are Attorneys.

How can we convince my sibling that sorting out LPAs is the right thing to do? Is it actually the right and best thing to do? Could anyone give me examples of how much more difficult things become without the LPAs in place? Is it true that having to go to the Court of Protection is very expensive and time-consuming? If one sibling isn’t an Attorney, can they “block” any decisions that we make? Sorry, questions, questions.

All three of us want the same thing, to look after our parents in the best way possible, we need to be united as a family, but this is already creating so much tension and upset, it’s the last thing my mother needs on top of the difficulties of day-to-day care for my father.

My brother had a bad accident and my mother ended up at the court of protection. There was no mention of either of his brothers being involved and now it will cost several thousands to get her off and my brother on my well brother to administer my ill ones affairs.As far as I know it is nothing to do with anyone not mentioned in the power of atterney what one puts in. Rather like one can put anything in a will. If your father becomes legally incompetant and the court of protection are invilved it WILL be expensive. and ongoing they damand proof of how his money is spent every year and charge you to look at it, a lot. I would just get the power and worry about the sibling later. Get a power for your mother at the same time and see if it can be done as a cheaper deal. Haggle. Afterall it is a solistor and we all know what solistiting is. Really comes from same word. Sorry about spelling how dementia afects me.I understand what I am saying just cant spell.
Edward
 

twinklybongle

Registered User
Jul 28, 2014
5
0
Thank you everyone for your detailed and considered replies, you all have enough problems of your own to deal with, and I really appreciate the time you’ve taken. You’ve given me so much information, it’s really helpful to read about individual real-life experiences. It’s helping me to work out how to have the next conversation with my reluctant sibling.

We have explained setting up the LPA’s to my father. He has been an Attorney himself in the past, and does understand the conversation at the time it is happening, and thinks it’s a good idea, but then we have to have the conversation again from scratch each time it is discussed, is that good enough for him to be a Donor for legal purposes?

If we can’t get my sibling on board, and go ahead with the LPA’s for both parents, could the sibling who isn’t an Attorney go to the COP and say that we weren’t acting in the best interests of my parents?

We’re OK at the moment, because everything my parents own, they own jointly, including their bank account, and my mother is in control and has full mental capacity, and at the moment my father will agree to whatever she wants to do. What my sibling doesn’t seem to understand is that this situation could change in a second if my mother has an accident, or is suddenly taken ill. Every single person we’ve spoken to about LPAs is saying “just do it” and then it’s ready for when the situation arises, but my sibling seems to think it’s an excuse to get my parents into a care home and sell their own home from under their feet as soon as possible, even though we have never even suggested that, it’s the very last thing we would want to do. They’ve been in the same house for over 50 years, it’s the only environment they both feel safe and happy in, and the only environment my father recognises.
 

Jessbow

Registered User
Mar 1, 2013
5,677
0
Midlands
Drawing up the document is only the first stage, nothing changes until its registered, You don't register it until you need to.

Point being, if you don't get it drawn up while your father has capacity, it will be too late.

Maybe you can explain to your sibling that its got to be drawn up now, and wont be registered yet,
 

twinklybongle

Registered User
Jul 28, 2014
5
0
In reply to Jessbow: Yes, we have explained that, which seems to be why my sibling thinks it's a waste of time. My sibling wants to draw up a legal document specific to our needs, which incorporates the LPAs. The trouble is, the rest of us think our specific needs are exactly what the LPA process offers, so we just want to crack on and get it done almost as an insurance policy for the future, and then we can sit down and work out how to help my mother now whilst she still has mental capacity. For example, she wants us to be involved with their healthcare, but their GP will not discuss anything with us, even though he has received a signed letter from both my parents asking him to do this!
 

Nebiroth

Registered User
Aug 20, 2006
3,510
0
We have explained setting up the LPA’s to my father. He has been an Attorney himself in the past, and does understand the conversation at the time it is happening, and thinks it’s a good idea, but then we have to have the conversation again from scratch each time it is discussed, is that good enough for him to be a Donor for legal purposes?


Yes. All that matters is that he understands what he is signing at the time of signing. It is comprehension that matters, not memory. The certificate provider in essence attests to this, that the donor understands and that they are not under duress etc. A certificate provider does not have to be a doctor.

If we can’t get my sibling on board, and go ahead with the LPA’s for both parents, could the sibling who isn’t an Attorney go to the COP and say that we weren’t acting in the best interests of my parents?

The could, but they would need to have actual evidence of this. The Court would investigate and judge the case on the evidence. They are very unlikely to revoke the LPA simply because someone has lodged a complaint. As in all cases, the Court would not look kindly upon groundless accusations that waste court time and money and which also call into question the integrity of the attorneys.

We’re OK at the moment, because everything my parents own, they own jointly, including their bank account, and my mother is in control and has full mental capacity, and at the moment my father will agree to whatever she wants to do. What my sibling doesn’t seem to understand is that this situation could change in a second if my mother has an accident, or is suddenly taken ill. Every single person we’ve spoken to about LPAs is saying “just do it” and then it’s ready for when the situation arises, but my sibling seems to think it’s an excuse to get my parents into a care home and sell their own home from under their feet as soon as possible, even though we have never even suggested that, it’s the very last thing we would want to do. They’ve been in the same house for over 50 years, it’s the only environment they both feel safe and happy in, and the only environment my father recognises.

Even having a LPA Health and Welfare would not give you the authority to put your parents into a care home. In order to even begin to do that you would need LPA for both of them, be able to prove they had both lost mental capacity etc. Moreover, if one of your parents goes into a care home then the property is protected from sale whilst the other lives there - it is exempted as an asset, this is called the automatic disregard. If both your parents went into permanent care, then potentially the house might have to be sold - but the monies would have to be used to pay for care fees. I am not sure as to why your sibling thinks you would want that to happen since it benefits neither your parents nor you and your siblings as attorneys.

Your sibling appears to think that attorneys can act to benefit themselves. This is strictly forbidden and is in fact one of the things an objection to thre Court can be based upon.

Your sibling should also be aware that if any objection was successful, the most likely outcome would be that the Court would invalidate the LPA and then award powers of attorney to an independent professional - usually a solicitor on a preferred list. They of course charge for their services and those charges would be paid from your parent's assets.
 

Katrine

Registered User
Jan 20, 2011
2,837
0
England
From what you write, your sibling would make a poor joint attorney because s/he doesn't trust the other siblings and this is essential for a good working relationship. Being your parent's attorneys requires you to be grown-ups with each other, to be respectful of each other and to be focused on the best interests of the parent, not the children.

Forgive me, but it sounds as if this sibling is stuck in a childhood rut with regard to the rest of you. If, as you say, you have never given them reason to believe that you want to sell your parents' home or to place them in residential care for your own convenience, then this sibling is deluded or paranoid, or just motivated to make mischief. The story is "Me, me, me" if this person is anything like my SIL.

You asked if a non-attorney sibling could go to the COP and say the attorneys were not acting in the best interests of the donor. Yes, they could do it, but who would take any notice? Provided you can evidence your financial and/or welfare management and decisions, and can explain your approach to determining their best interests (if asked to do so) then your attorneyship would be endorsed by COP. The troublemaker could find that making a vexatious complaint would come back to bite them. It certainly wouldn't convince anyone that they could do a better job as attorney.

I suspect that this is all hot air. While the disgruntled sibling can still have influence, they will continue to take a contrary stance and block attempts at consensus. It's the only power they have.

Naturally your parents, and you, want to come to an amicable decision. Just be warned that this may be the opposite of what your sibling wants. If the other siblings become attorneys then this one loses their power base (in their own mind). In reality, the other members of the family would still take their opinions and feelings into account, unless they acted so unreasonably that you then had to exclude them.

Frankly, it seems that they are forcing your hand because you can see the practical benefits of moving forward straight away and this sibling is determined to block this, to the dis-benefit of all concerned. This is a game you do not wish to play. Perhaps you could arrange for you all to visit a solicitor to get some advice on the pros and cons of POA. This should either get your sibling on board, or prove that you need to move ahead without them.
 
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