Basic Question: LPA or Deputyship

[nita]

I apologise if this question has been covered before but I am very unclear about it. With my mother it was clear she had lost capacity so I went for Deputyship under the Court of Protection.

I am now asking what to do on behalf of a friend whose husband has memory problems. How does she decide whether she can get Lasting Power of Attorney? She thinks he would agree to it but who has to decide about the capacity issue? Can a solicitor make that decision or does it have to be clarified by a doctor?

 

[Noorza]

A solicitor will be fine.

http://www.lawsociety.org.uk/advice/practice-notes/lasting-powers-attorney/

 

[nita]

Thank you for the quick replies. What concerns me is that the solicitor my friend rang and told her husband has memory problems, said straightaway he couldn't grant PoA. How would she be able to say that without seeing him? She more or less said immediately that my friend would have to go down the Deputyship route.

 

[nita]

I haven't looked at the forms yet so not sure what they ask but, if my friend fills in the forms herself, can she just take the decision that her husband has capacity? Does she need anyone to confirm this?

I thought the solicitor was wrong to immediately jump to the conclusion that he hasn't got capacity to make the decision, just by talking to his relative over the phone. In that case, anyone with early stage dementia would not be able to go down the LPA route.

Do some solicitors think that anyone with signs of dementia or who is assessed as having dementia, does not have capacity?

 

[nmintueo]

Ref Society factsheet:

Lasting Power of Attorney
http://www.alzheimers.org.uk/site/scripts/documents_info.php?documentID=154

Once you have completed the form, you will need to get someone to sign it to state that you have the mental capacity to make an LPA. ... They can be:

• a professional, such as your doctor, social worker or a solicitor
• someone who has known you for two years, but is independent, ie isn't a family member or an attorney and they will not benefit from the LPA (there is more information about this in the guidance notes).

And from the guidance notes:

A certificate provider is someone who you choose, who can confirm that you

• understand your LPA
• have not been put under pressure to make it and that it has not been completed fraudulently.

This is an important safety aspect of your LPA.

Who can be a certificate provider
Either someone who

• has known you for at least two years, or
• has relevant skill or knowledge to be able to form a professional judgement about your understanding.

If you choose someone with relevant professional skills, they must be one of the following:

• a registered healthcare professional (your doctor for example)
• a solicitor, barrister, or advocate
• a registered social worker
• an Independent Mental Capacity Advocate (IMCA)
• someone who considers that they have the relevant professional skills and can specify what they are (in the second box on page 9 of your LPA).

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

Make a lasting power of attorney
https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney

The guidance is hidden away under "download the forms" -

Guidance for people who want to make a lasting power of attorney for property and financial affairs
https://www.gov.uk/government/uploa...PA112_Property_financial_affairs_guidance.pdf

It also says, "Contact the Office of the Public Guardian if you don’t know what you should do", and many people who've posted on the forum have said that the OPG was helpful to them.

Do some solicitors think that anyone with signs of dementia or who is assessed as having dementia, does not have capacity?

There may well be some solicitors who think that, but they'd be wrong. The certificate provider doesn't have to be a solicitor - or indeed any sort of professional - anyway.

 

[nita]

Thank you for this. I will pass all the information on to my friend.

 

[Norfolkgirl]

Thank you for this. I will pass all the information on to my friend.

Let us know what your friend has decided, whether LPA or Deputy. Would be interested to know.

 

[LYN T]

I contacted a solicitor but decided against using him

He wanted to go down the Deputy route (and charge a lot of money)

In the end I went for LPA. The bar is set low for capacity and Pete understood AT THE TIME what he was signing. It was witnessed by his friend of 30 years.

Good luck to your friend

Lyn T

 

[BenT]

Hello

It all comes down to capacity. For an LPA to be valid it requires an independent "certificate provider" to confirm that, in their, opinion:

the donor understands the purpose of the LPA and the scope of the authority conferred under it
no fraud or undue pressure is being used to induce the donor to create the LPA, and
there is nothing else that would prevent the LPA being created.

If the above is confirmed then great the person can complete a valid LPA, if not then a deputyship will be required. In terms of solicitors fees these are fixed by the court at £850 + VAT unless more is agreed with the deputy. Sometimes this can be £1,500 + VAT or more if there a particularly complex issues.

It is difficult to determine whether someone has capacity over the phone. Certainly someone shouldn't be prejudged because they have been diagnosed with alzheimers for example. In any event, capacity may fluctuate so even if the person was confused at times, they could complete the LPA during a lucid moment. To avoid any uncertainty or potential issues in the future it may be best to get a GP to confirm the person's capacity to make an LPA.

Regards

BenT

 

[nita]

My friend has decided to go for LPA and ignored what the solicitor told her. Her husband does still have capacity - he still does plenty of things like gardening and DIY and I believe he is only in the early stages of dementia. He has got a referral to a memory clinic.

The solicitor was obviously wrong to tell her that someone with dementia couldn't give power of attorney.

She is going to fill in the forms herself without using the solicitor. So hopefully, all happily resolved.

Thank you for the advice on here. It helped to clarify it for me.

 

[BenT]

Nita, you will still need somebody independent to confirm in the LPA form they have the necessary capacity to sign the LPA. He can't just sign it and it's ok.

This independent person is called a certificate provider. A certificate provider cannot be:

under 18
a member of the donor's or attorney's family
a business partner or paid employee of the donor or attorney(s)
an attorney appointed in this or another LPA or any EPA made by the donor
the owner, director, manager or an employee of a care home in which the donor lives or their family member
a director or employee of a trust corporation appointed as attorney in this LPA (this only applies to someone certifying a property and financial affairs LPA).

Sometimes it's a solicitor who acts as certificate provider but as i said before it may be best to get a GP to do it. It has to be done for LPA to be valid.

Regards

BenT