Gosh - the meeting with SS did not go at all well. The SS maintained that my mother was still mentally capable and still had mental capacity. They went to see her and even though she doesn't know anything about her money, how much she has and how much is being spent, she is OK enough to have mental capacity
My mother wrote last month that she was being locked in bed and couldn't get out and the nurses wouldn't help her. According to SS the fact that she was able to compose a letter meant that she was mentally OK!
I said ' are you telling me that an old lady who thinks she is locked in bed and no-one will help her out still has mental capacity to manage her finances and is mentally OK?' she said yes....
This SW knew nothing about LPA's and got muddled over the registration process. She said something about as soon as my mother was mentally incapable then the attorneys would have to follow the guidelines for attorneys fiduciary duties - but until then they can do as they wish. That process will be decided by a court and the attorney would have to go to the court of protection for the additional powers. Have I got it wrong?
The LPA has been registered
I am a bit depressed and seem to be going round in circles and no one will listen.
I found this - this lady is mildly demented. It is exactly my situation
My elderly mother named me as her attorney several years ago when together we set up an Enduring Power of Attorney so that I could manage her financial affairs.
My brother now tells me that he is in charge of my mother's finances as a result of setting up a new Lasting Power of Attorney arrangement last month without my knowledge. He claims that the old EPA has no validity as it was never registered.
My brother has a record of bad debts, partly due to failed business ventures, and I am worried that my mother's money is no longer safe. She is 84 and suffering from a mild form of dementia. Is there anything I can do to stop this? Mrs P.M., Preston, Lancs
Peter Walker is a partner and head of the trusts and probate department at London law firm Anthony Gold. He is also a Property and Affairs Deputy appointed by the Court of Protection. He replied:
You need to immediately instruct solicitors to contact the Court of Protection investigation section on your behalf. The solicitor can explain your concerns and ask them to investigate. This can also be done without the services of a solicitor if you feel confident to explain the position clearly
You can challenge the Lasting Power of Attorney on the basis that your brother is not a suitable person to act as the attorney due to his financial history. There also appears to be some question as to whether your mother had capacity to create the Lasting Power of Attorney.
Your brother is saying the Enduring Power of Attorney has no effect as it was not registered with the Court. Registration only becomes necessary if your mother was close to or has lost mental capacity. If your mother has lost mental capacity it is doubtful whether she had mental capacity to create the Lasting Power of Attorney. If she did, then the Lasting Power of Attorney does not override the old Enduring Power of Attorney unless it expressly contains a statement cancelling the earlier document.
The Lasting Power of Attorney must contain a statement by a professional with experience in assessing capacity, such as a solicitor, barrister or doctor or two independent people who have known her for years and are prepared to vouch that at the time the document was signed by your mother, she fully understood what she was signing. Arguably in this case, she was giving power to her son having given previous authority to you.
A Lasting Power of Attorney does not come into legal effect until it is registered with the Court of Protection, which takes the Court at least 10 weeks to complete. When lodging, your brother has to confirm he has served notice on up to four close relatives or other persons interested in his mother's care. Your mother could have decided she did not want you to be served which would be suspicious in itself, and in which case additional formalities would have been completed when the document was signed.
You should ask your brother for a copy of the court sealed document, which you are entitled to see, from which the situation regarding apparent service of the application and who completed the certificate of capacity, will be clear. Further enquires can then be raised with those providers and whoever oversaw the application to the Court or any solicitor involved in the original preparation, as to whether the existence of the EPA was disclosed.
Sorry to have gone on
Emma