advice on power of attorney

[frances2]

hi, my dad has just been diagnosed with alzheimers and we have been told by the doctor that we need to get a lasting power of attorney in place asap, but that also there could be problems because my mum & dad have a joint bank account, that this may need to be seperated. my dad is struggling to come to terms with everything and at the moment is refusing to accept any of this or speak to a solicitor and he does not want any changes made to his bank accounts, does anybody know if he agrees to put the lasting power of attorney document in place is that enough?

thanks

 

[Vonny]

Hi Frances, and welcome to Talking Point

A Lasting Power of Attorney will give your dad control over the finances, but I don't think it will help if assets need to be taken into account for care purposes.

We have just got an LPA drawn up for my sister and I to be dad's attorneys, should anything happen to him, but mum is too poorly to agree to an LPA for dad.

Our solicitor explained to him that because they held the savings and house as joint tenants, that mum's assets would form half the savings/house. To that end, she has advised dad to split out half the joint accounts into his name only, and we have served mum with a notice of severence, ie they are now tenants in common and own half a share each of the house in effect. This has meant that dad can put a codicil in his Will so that his half of the savings and house is willed directly to my sister and I, so if he dies before mum, the local authority doesnt snap the whole lot up for fees if she goes into a home.

If your mum and dad keep the house as joint tenants, there is no problem for your dad as even if your mum goes into a care home, he is still entitled to live in the house.

There are probably others on the forum who have better legal heads than me, and who can explain more succinctly. It is pretty much a minefield and you do right to start considering things now. My dad has only recently realised how much a toll on his health caring for mum has been. He has been in denial for some time...give your dad time, it is a huge thing to have to accept. If you can get all your research done now, you will be ready for your dad when he is ready to accept what needs to be done.

Good luck and please let us know how you get on

Vonny xx

 

[frances2]

thanks



thanks Vonny, that really helps, it is a real minefield!

i will let you know how i get on,

Thanks,

Frances
xxx

 

[BeckyJan]

Hello:

Years ago way before dementia my husband and I set up EPAs with a solicitor. It was in case anything happened to either of us the other would have power.
Could you use that argument with your Dad? In other words if anything happened to either him or your Mum it would be good to have this in place.

I only registered the Power last year when my husband had seriously deteriorted and at that time hospital bound. At no stage have I altered any of his assets and the joint account is still joint. I think if these things can be emphasised to your Dad he will not feel the 'loss of control' he probably fears.

Good Luck Jan

 

[jenniferpa]

I really don't think there is any need at this point to separate the assets. Absolutely he should draw up an LPA (both a finance one and a welfare one) as should your mother and puts wills in order etc but hopefully it will be sometime before the issue of splitting assets will arise. Vonny's point about the house is worthwhile considering, but if he won't consider it I would try not to worry too much.

 

[frances2]

thank you for the advice, that's good to know as we don't want him to feel like things are being taken out of his control, so if we can set the LPA up without having to seperate the assets thats much better, we thought you had to do it all together from what the doctor said,

thanks again,

Frances
xxx

 

[jenniferpa]

I'm afraid the doctor mislead you. After all, a lot of well people make these out as a matter of course when they make a will. In fact, I think everyone should have at the very least a welfare one so that the person you feel is most in tune with your wishes can make decisions for you if needed while if you have any assets at all a financial LPA is advisable.

 

[Vonny]

Hi Frances,

Good point raised here...everyone should have one! I drew up an EPA (which can't be done anymore, you have to have an LPA) when I was 44 and as fit as a fiddle so my sister could take control if anything happened to me. So far she has fortunately had no reason to invoke it, but it gives me peace of mind as my son is still under 18.

Hopefully it will be some time before you need to consider the splitting of assets, just be aware that at some stage your dad may need to. (Don't hammer that point home to him though)

Vonny xxx

 

[sue38]

Hi Frances,

I'm not sure why the doctor thought things would be more complicated if your mum and dad had joint assets.

If bank accounts are joint, your mum can operate them without a power of attorney.

That said, as others have advised, it is important that both your mum and dad get their affairs in order. Have they made wills? A lot of people assume that their spouse will inherit everthing, but that is not necessariy the case. Could this be a lever to persuade you dad to go to see a solicitor?

 

[Nebiroth]

I think that everyone should have a Power of Attorney drawn up. It can save so much trouble in the future.

I think you need to take advice as your Dad has been diagnosed with Alzheimer's already. It is unlikely, but possible, that this could invalidate an LPA since you have to be considered "mentally competent" to create one. I think the definition is that you understand what the LPA is and what it does. Having Alzheimer's doesn;t automatically mean you can't create one, but it might be well to have advice on the matter. It could, for example, strengthen the hand of anyone who wished to dispute it should the need arise to activate the LPA. Again, this is unlikely, but I believe in covering things like that.

I also believe that dealing with the assets as far in advance as possible is a good idea. It can become difficult if you wait until the actual need arises. For example, if you wished to change the home ownership to tenancy in common, that might be difficult if your dad wasn;t capable of doing it and your mum tried to do it using her LPA powers, it might be seen as her using them to her advantage.

It is correct that the Local Authority cannot touch the house if one spouse/partner goes into care but the other remains resident in it. In this case they MUST disregard the property. Joint accounts will be treated as 50% each.

The difficult would arise is, should your mum be the surviving partner and then she needs to go into care. At that point, the property would be taken into account. Joint properites always become the sole property of the surviving partner, no matter what an Will says.

One way of protecting against this is to make the property ownership a tenancy in common. This also has Inheritance Tax advantages.

I'd advise you to take up legal advice on the matter.

 

[Trying my best]

Just wanted to say that my mum made her EPA about 4 months after she was diagnosed. This was disclosed to the solicitor and was not a problem at all. Our solicitor spent quite a bit of time discussing with mum what the EPA actually meant and what effect it would have. Ultuimately she was satisfied that mum understood all of the implications and therefore the EPA could be made.

I would encourage you to get this done as quickly as possible as it's impossible to predict how quickly your dad will deteriorate and he could become unable to make one much sooner than you think. even if he has the cognitive ability, he might develop speech problems, which could make it difficult for a solicitor to establish whether he really understands.

It may help him to come to terms with it if you explain that you will allow him to continue to manage his own affairs for as long as he is able but that you will just keep a 'second pair of eyes' on things just in case.

 

[Cl13]

Hi, mum put in place LPA in Feb this year and it has just come through.
I imagined that it would be a single piece of paper naming me as the person mum has appointed to take care of her financial affairs.
I received it from the solicitor on Sat, he says ,
I have sent you 2 copies of your LPA for you to use from now.
he has sent 2 copies of the entire application, is this what I will have to carry as and when its needed.
Also mums solicitor told mum it was not necessary to have welfare LPA , he explained that it cost £150 to register + his fee of £460 and this would be double as they are now separate.
Would I be able to apply for LPA welfare and if not what repercushions is this likely to cause.

Sorry to gate crash your thread Frances I hope you dont mind.

Thanks

Love Lynn

 

[jenniferpa]

If you have now registered the LPA it will be too late to get an welfare LPA I think.

Hopefully it will be OK - if you're her only child and/or you have family but they are in agreement most medical personnel, social services etc will take note of what you say. The problem arises if one part of the family say one thing (e.g. grannie should live at home A) and another part of the family say another (e.g. grannie should live at home B). We have had people in that situation and that;'s the sort of thing a welfare LPA could have solved.

 

[sue38]

If you have now registered the LPA it will be too late to get an welfare LPA I think..

An LPA has to be registered before it can be used, its registration does not imply that the donor is no longer capable of dealing with their affairs. This is unlike the old EPA which can be used without registering and can only be registered once the person has become or is becoming mentally incapable of dealing with their affairs.

This is the guidance we follow when asked to complete the cerificate for an LPA, I seem to remember I got it originally from the OPG website:-

Understanding mental capacity

A formal test of mental capacity is not necessary in order to provide a Certificate. However, it is important that you are satisfied that, in your opinion, the Donor understands the LPA they are making, has the mental capacity to make it and that they are not being forced into making it.
It is important that you think about the questions you will need to ask the Donor to establish their capacity and understanding. You may want to consider asking the Donor the following open questions. You may want to keep a record of the questions you asked and the responses the Donor gave, on a separate sheet for your own records.

1. Understand the LPA and the powers they are giving:
• What is an LPA?
• Why do you want to make an LPA?
• Who are you appointing as your Attorney?
• Why have you chosen to appoint x as your Attorney?
• What powers are you giving your Attorney(s)?

2. Have you been put under pressure to make the LPA:
• Has the Attorney given you the answers to certain questions (like those listed above)?
• Do you have any reason to believe that the Attorney is not trustworthy?

3. Are aware of any other reasons why the LPA should not be created.

You will also need to ask questions that are specific to the person and the LPA in front of you. You may want to prepare a checklist to help you with this.
This list is not a formal test of capacity and is only provided as a guide to the types of questions you may want to ask to help you when forming your opinion as to whether or not the Donor understands the LPA and if he or she has been pressured into making it.

 

[Cl13]

Hi Jennifer, thanks for that, I have 2 siblings who are happy to go along with any decision I make regarding mum, they have always left her to me and are happy to visit.
I was thinking more on the meds side of things.
I worked in a CH a lot of years ago and was always upset at the level of psychotic drugs used by night staff, they would give out Largactil like it was going out of fashion, when we " day staff " came on in the morning would find certain residents always doped up and unable to function until afternoon.
I was reading today on the Alzheimer's fact sheet, that these drugs can be very dangerous to DLB sufferers, it brought back the memories of the CH all that time ago.
I wasn't aware these controlling drugs could actually cause death if not monitored closely.
It is a very worrying thought..
Lynn

 

[jenniferpa]

Do make sure you read Sue's post which is more accurate (You both posted at the same time).

 

[frances2]

thanks so much for all the replies, that has really helped, i will let you know how we get on,

thanks

Frances
xxx