• All threads and posts regarding Coronavirus COVID-19 can be found in our area specifically for Coronavirus COVID-19 discussion.

    You can directly access this area >here<.

Desperate for advice on my family's situation!

Claireyeddy

Registered User
Sep 21, 2020
35
hi @Claireyeddy

I am wary of what MartinWL states ... it appears the LPAs for his parent are the standard LPAs with no particular restrictions added .... that makes it much simpler, on the whole, as the Attorneys themselves are able to assess the state of the donor's capacity and act appropriately in good faith on their sincere understanding of each situation

however, an LPA with restrictions added makes acting on them much trickier and this seems to be the case with the LPAs your grandmother has set out

you are right that if the documents have been registered with the OPG and returned complete with the OPG stamps, then they are 'good to go' but only in accordance with any stipulations set out in each document ... hence your dad's problems, as I understand what you have told us

I think you are wise to ask the OPG for their view, as they are the ones with the responsibility of oversight

members here offer suggestions in line with our own experiences ... we are not professionals, and even if we were we cannot give professional advice on the forums here (T&Cs)

sadly there also can come a point when a person is no longer considered to have capacity, I speak from my experience with my dad ... the intermediate stages between realising something is very wrong, and receiving a diagnosis, and heartbreakingly knowing there is no capacity can be a minefield

I hope the OPG can give you the info and reassurance your dad needs

Thankyou so much for this. It is all very confusing where these restrictions are involved! I think it's also confusing for us because my grandmother on my other side was deemed to have lost complete capacity, which meant my mother took control of the LPAs, so we are under the impression that something similar must have to happen in this scenario too as she is similarly incapacitated. I'm waiting for a response from the OPG and an independant social care lawyer, so hopefully they will be able to shed more light on the situation. Although I'm now unsure I understand it properly enough to have asked the right questions! 😂
 

Jaded'n'faded

Registered User
Jan 23, 2019
1,003
High Peak
The only other thing I can think of is to get mean and sneaky with your nan! You say she won't trust anyone other than family. Could you try something along the lines of, 'Oh nan, your finances are in a right mess! I do wish you'd let us help you sort it and make sure your bills are paid.... otherwise The Council will take over and we'll have no say in anything. I know you'd hate that! You agree? Right - just sign here....'

My mum had a fear/hatred of strangers/officials/busybodies (as she saw it) getting involved in her life and I used 'lies' like these when she wouldn't co-operate. In her case it wasn't LPA but staying in the care home.: 'I know you'd rather be elsewhere but the doctors have said you need to be here . I can't do anything because it's gone through the courts now and the judge has agreed!' Not true of course but it absolutely worked.
 

Claireyeddy

Registered User
Sep 21, 2020
35
The only other thing I can think of is to get mean and sneaky with your nan! You say she won't trust anyone other than family. Could you try something along the lines of, 'Oh nan, your finances are in a right mess! I do wish you'd let us help you sort it and make sure your bills are paid.... otherwise The Council will take over and we'll have no say in anything. I know you'd hate that! You agree? Right - just sign here....'

My mum had a fear/hatred of strangers/officials/busybodies (as she saw it) getting involved in her life and I used 'lies' like these when she wouldn't co-operate. In her case it wasn't LPA but staying in the care home.: 'I know you'd rather be elsewhere but the doctors have said you need to be here . I can't do anything because it's gone through the courts now and the judge has agreed!' Not true of course but it absolutely worked.
This is definitely something I have suggested to my Dad! I would be a lot tougher on her if it was me calling the shots, and try to find ways to convince her to make better decisions. But sadly, my Dad is still very much of the belief that she simply won't have it if asked as she's so stubborn without being able to even think it through! But in my opinion, we've exhausted her wishes and now it comes down to her well-being. He is coming round to other ideas though, and everyone's advice on here is really helping! I think it'd help a lot if we knew what the process is with this LPA restriction... she has unknowingly (or deliberately, knowing her!) caused us an absolute mess!
 

Banjomansmate

Registered User
Jan 13, 2019
2,332
Dorset
Did your Grandmother get her LPA’s done through a solicitor or did she do them herself? As they have been registered with the OPG I think it sounds as though she had them done through her solicitor so I would approach them as to what they consider the requirements to be, or are they the ones saying they cannot do it?
 

Claireyeddy

Registered User
Sep 21, 2020
35
Did your Grandmother get her LPA’s done through a solicitor or did she do them herself? As they have been registered with the OPG I think it sounds as though she had them done through her solicitor so I would approach them as to what they consider the requirements to be, or are they the ones saying they cannot do it?
She had them prepared with a solicitor yes! Both her GP surgery and the solicitor have said they cannot perform this capacity test. They were under the impression that it would be outsourced even if we were to find a solicitor who does deal with these issues, likely to medical professional or someone who specialises in care. This has been the problem all the way through - the GP, solicitor, MAS unit and now local dementia charity have all told us completely different things to eachother! It's actually crazy that nobody seems to know what the process is. I feel sorry for families who dont have the resources we do to keep hammering at this because I imagine so many sufferers are getting lost in the system!
 

canary

Registered User
Feb 25, 2014
13,885
South coast
The only other thing that's suddenly occurred to me whilst I've been researching all of this. We have LPAs stamped by the OPG. Is it possible that we've got the wrong end of the stick, thinking we need to somehow 'activate' them with the OPG? Or is it simply that we need the assessment as supporting evidence to go alongside the LPAs as they are, to prove that we've satisfied the requirements when presenting it to banks, care providers etc?

Also, based on @MartinWL point above, have we been advised wrongly in terms of the capacity assessment? I.e. potentially she doesn't need a medical professional to do this generally, and the appointees (my dad and uncle) and make this assessment on a decision by decision basis by testing those 4 questions? If thats the case, we may have massively been overcomplicating this based on poor advice by various people!
I dont know the answer to these questions, Im afraid, but it would seem likely that, given the additional clause in the POA that you would need a professional opinion. Also, when someone suggested you contact the OPG to ask what they would accept, you replied
We already know its the capacity assessment by a professional, but thankyou!
Did you not actually contact the OPG? If not, then this is the first thing to do. Find out exactly what you have to do and who can make the judgement that she has lost capacity.
 

Claireyeddy

Registered User
Sep 21, 2020
35
I dont know the answer to these questions, Im afraid, but it would seem likely that, given the additional clause in the POA that you would need a professional opinion. Also, when someone suggested you contact the OPG to ask what they would accept, you replied

Did you not actually contact the OPG? If not, then this is the first thing to do. Find out exactly what you have to do and who can make the judgement that she has lost capacity.
Thankyou for your reply! I should have been a bit clearer... I have contacted the OPG but couldn't get through by phone, so am waiting for an email response.

I spoke to the Dementia UK helpline last night (after trying multiple other helplines who had no idea what I was talking about with regard to capacity) and they were amazing! They told me that in fact ANYONE can assess capacity, at any given time, as long as there is regard for the Mental Health Act Code of Practice. All attorneys should be familiarising themselves with this when signing the LPA, but essentially, the law says that family, carers, friends etc. can in fact make these assessments as and when needed and act if necessary within the boundaries of the code. It's apparently a complete myth that you need a medical professional to assess capacity for anything other than the more serious decisions, i.e. a decision about a major operation. But for things like having a discussion with my Grandmother's bank to have my Dad added as a signatory, as long as we have a registered LPA stamped by the OPG (which we do - we were just told it's not 'active' by someone in the solicitors officer due to capacity) she said we ourselves as her carers can make an assessment of her capacity, as long as we can evidence that we have addressed her capacity (i.e. asked her on multiple occasions, and found she is unable to explain her reasoning logically or understand the gravity of the decision) and that we are acting in her best interests. This explanation is pretty much what @MartinWL stated earlier. I asked her why so many professionals i.e. the GP, the solicitor and the advisors at the unit hadn't mentioned this before, and she said it boils down to many people still not understanding the MHA properly, still being in a pre-2005 mindset, and being underconfident in making capacity decisions themselves. It is the nature of people to pass responsibility onto someone 'qualified', however the act states family and carers are possibly the best qualified to make that judgement. She herself is a qualified social care professional and said that even social workers often get confused with this. She also confirmed that these 'clauses' are ALWAYS contained in the Health and Welfare LPA, and are fairly standard in the finance one; it's just with the finance one most people usually have it in force immediately without the need for capacity to be questioned. But essentially, my GM's finance one is just set up in the same way as a health and welfare one, but there are no additional constraints that require a £400 independent assessment! She alerted me also to the fact that since 2005, capacity is based per decision (something someone else mentioned on here, so thankyou!) and so a 'private professional' claiming to be able to come into her home and say she no longer has capacity is meaningless beyond the moment that assessment is made.

So it seems ultimately, yes we DO need capacity assessments to allow us to make decisions, but what no one has been able to tell us thus far is that WE can make them! Whilst this advice does match both what is written in the MHA and on Alzheimar's.Org / DementiaUK.Org, I am going to see what the OPG say before acting any further. I hope other's read this thread though, and are very, very wary about believing even what health professionals are advising, as it sounds as though the MHA is a bit of a misinterpreted area. It would also appear that the private hiring of people to perform capacity assessments could be a con, unless in an extreme circumstance where an objective party might be required or in a very serious decision where it would be wise to consult someone else. I will keep this thread updated once I hear from the OPG!

Of course, this is also just information that I am being told by various professionals, so please don't take my word as gospel as even we are unsure which advice is the correct advice currently...
 
Last edited:

Shedrech

Volunteer Moderator
Dec 15, 2012
9,415
Yorkshire
Hi @Claireyeddy
I completely take the point of your last post... and that is what I mentioned about 'standard' LPAs

It seemed that you were saying that your grandmother's LPA was set up to require an assessment by a professional ie that was stated in the actual wording (some members have faced this situation)

I assume you read the actual exact wording to the advisor on the support line

The OPG may take some time to reply to your email but it will be useful for your dad to have the reassurance... I called once and waited about half an hour but when I did get through it was well worth the wait
 

silkiest

Registered User
Feb 9, 2017
171
Hi @Claireyeddy is it an enduring power of attorney or a lasting power of attorney.
If it is the old enduring power of attorney the advice on the government website is to register it as soon as the person starts to loose capacity. If the document is kept with her solicitor and they will not act to register them you do not need a solicitor to register it - just get grandma to agree to you collecting the documents. The information on how to do it is on the gov.uk website - https://www.gov.uk/enduring-power-attorney-duties/register-an-enduring-power-of-attorney and my understanding from reading this is that you do not need a capacity test in order to start the registration process as the court will do this.

If it is the newer lasting power of attorney (made after 2007) it can be registered at any time. The government now even advises registering at the start of the process as it can be registered but not acted upon. I would advise you to get it registered ASAP as it can take a while.

I would advise everyone to have a lasting power of attorney in place. Inabilities to deal with anything financial can happen at any stage in life - be it through accident, illness or simply not being physically present. More and more companies are tightening up their procedures so even utility companies will not speak to you if your name is not on the bill - even if you live in the house. My husband complained about a problem on the housephone and I told him to sort it, unfortunately his name was not on the bill for historical reasons and the company would not talk to him!!! So now we both have POA's in place
 

Claireyeddy

Registered User
Sep 21, 2020
35
Hi @Claireyeddy
I completely take the point of your last post... and that is what I mentioned about 'standard' LPAs

It seemed that you were saying that your grandmother's LPA was set up to require an assessment by a professional ie that was stated in the actual wording (some members have faced this situation)

I assume you read the actual exact wording to the advisor on the support line

The OPG may take some time to reply to your email but it will be useful for your dad to have the reassurance... I called once and waited about half an hour but when I did get through it was well worth the wait
Hi @Claireyeddy is it an enduring power of attorney or a lasting power of attorney.
If it is the old enduring power of attorney the advice on the government website is to register it as soon as the person starts to loose capacity. If the document is kept with her solicitor and they will not act to register them you do not need a solicitor to register it - just get grandma to agree to you collecting the documents. The information on how to do it is on the gov.uk website - https://www.gov.uk/enduring-power-attorney-duties/register-an-enduring-power-of-attorney and my understanding from reading this is that you do not need a capacity test in order to start the registration process as the court will do this.

If it is the newer lasting power of attorney (made after 2007) it can be registered at any time. The government now even advises registering at the start of the process as it can be registered but not acted upon. I would advise you to get it registered ASAP as it can take a while.

I would advise everyone to have a lasting power of attorney in place. Inabilities to deal with anything financial can happen at any stage in life - be it through accident, illness or simply not being physically present. More and more companies are tightening up their procedures so even utility companies will not speak to you if your name is not on the bill - even if you live in the house. My husband complained about a problem on the housephone and I told him to sort it, unfortunately his name was not on the bill for historical reasons and the company would not talk to him!!! So now we both have POA's in place
Thankyou both for your replies! It does say in the exact wording that it an only be used upon lack of mental capacity for both of her LPAs but does not specify how this is determined. Our question was, how is this established, because multiple professional bodies had told us we needed an official assessment, but this has turned out not to be the case (it would seem!)

It is a lasting power of attorney and has already been registered with the OPG. It's stamped etc. we just didnt know how exactly we could invoke it.

Having also now spoken to an independent mental capacity assessor, who can step in for more formal decisions or where a family is uncomfortable, she has said that in her experience very few GPs or solicitors, or indeed social workers as suggested to me last night, fully understand capacity, or that families can assess this in order to override decisions using an LPA. It's actually really basic when I look at it now, but for whatever reason, all of the advisors we had spoken to until yesterday had not mentioned how it works to any of us.

Hopefully we have finally got to the bottom of it now. Essentially it feels like we've been sent in a circle that doesn't even exist because none of them understand it themselves! Still waiting for the OPG.
 

nita

Registered User
Dec 30, 2011
1,971
Essex
I don't know if this helps but I recently registered LPAs for my brother with the OPG. They are the standard type and I have now registered them with the banks so I can start using them on his behalf while he still retains his cards, etc. and the ability to operate the accounts himself as he is still 'in compos mentis' thankfully - he has other difficulties, not dementia.

When I went into the building society to register the LPA, they said there was a clause in the form I had to fill in, asking if he had lost capacity. I hadn't noticed it but the employee scoured through the document and there was, in small print a section asking this. In the case that the person had lost capacity it had to be marked with an 'x'. Presumably, I could have done this - no question of a test for capacity. I am unsure though, if I had marked it thus, whether the building society would have gone into this further or whether this would just have meant only I could operate the account.

Have you actually talked to the financial institutions your Nan banks with - sorry if I missed this somewhere in your thread.
 

imthedaughter

Registered User
Apr 3, 2019
518
Ah yes that sounds a lot more like how we use the LPAs, so I have been able to speak to the dr about dad but also if a GP sees him and thinks he can understand the situation at that time they will speak with him. Dad actually gave me his blessing to help with his bank so I felt much more comfortable with that as he clearly was very confused by it all. Capacity is so variable, I hope this means you have a way forward now.
 

Just me

Registered User
Nov 17, 2013
488
Thankyou for your reply! I should have been a bit clearer... I have contacted the OPG but couldn't get through by phone, so am waiting for an email response.

I spoke to the Dementia UK helpline last night (after trying multiple other helplines who had no idea what I was talking about with regard to capacity) and they were amazing! They told me that in fact ANYONE can assess capacity, at any given time, as long as there is regard for the Mental Health Act Code of Practice. All attorneys should be familiarising themselves with this when signing the LPA, but essentially, the law says that family, carers, friends etc. can in fact make these assessments as and when needed and act if necessary within the boundaries of the code. It's apparently a complete myth that you need a medical professional to assess capacity for anything other than the more serious decisions, i.e. a decision about a major operation. But for things like having a discussion with my Grandmother's bank to have my Dad added as a signatory, as long as we have a registered LPA stamped by the OPG (which we do - we were just told it's not 'active' by someone in the solicitors officer due to capacity) she said we ourselves as her carers can make an assessment of her capacity, as long as we can evidence that we have addressed her capacity (i.e. asked her on multiple occasions, and found she is unable to explain her reasoning logically or understand the gravity of the decision) and that we are acting in her best interests. This explanation is pretty much what @MartinWL stated earlier. I asked her why so many professionals i.e. the GP, the solicitor and the advisors at the unit hadn't mentioned this before, and she said it boils down to many people still not understanding the MHA properly, still being in a pre-2005 mindset, and being underconfident in making capacity decisions themselves. It is the nature of people to pass responsibility onto someone 'qualified', however the act states family and carers are possibly the best qualified to make that judgement. She herself is a qualified social care professional and said that even social workers often get confused with this. She also confirmed that these 'clauses' are ALWAYS contained in the Health and Welfare LPA, and are fairly standard in the finance one; it's just with the finance one most people usually have it in force immediately without the need for capacity to be questioned. But essentially, my GM's finance one is just set up in the same way as a health and welfare one, but there are no additional constraints that require a £400 independent assessment! She alerted me also to the fact that since 2005, capacity is based per decision (something someone else mentioned on here, so thankyou!) and so a 'private professional' claiming to be able to come into her home and say she no longer has capacity is meaningless beyond the moment that assessment is made.

So it seems ultimately, yes we DO need capacity assessments to allow us to make decisions, but what no one has been able to tell us thus far is that WE can make them! Whilst this advice does match both what is written in the MHA and on Alzheimar's.Org / DementiaUK.Org, I am going to see what the OPG say before acting any further. I hope other's read this thread though, and are very, very wary about believing even what health professionals are advising, as it sounds as though the MHA is a bit of a misinterpreted area. It would also appear that the private hiring of people to perform capacity assessments could be a con, unless in an extreme circumstance where an objective party might be required or in a very serious decision where it would be wise to consult someone else. I will keep this thread updated once I hear from the OPG!

Of course, this is also just information that I am being told by various professionals, so please don't take my word as gospel as even we are unsure which advice is the correct advice currently...
Thanks for the update @Claireyeddy, I’ll look out for your update when the OPG respond.
 

MartinWL

Registered User
Jun 12, 2020
397
hi @Claireyeddy

I am wary of what MartinWL states ... it appears the LPAs for his parent are the standard LPAs with no particular restrictions added .... that makes it much simpler, on the whole, as the Attorneys themselves are able to assess the state of the donor's capacity and act appropriately in good faith on their sincere understanding of each situation

however, an LPA with restrictions added makes acting on them much trickier and this seems to be the case with the LPAs your grandmother has set out

you are right that if the documents have been registered with the OPG and returned complete with the OPG stamps, then they are 'good to go' but only in accordance with any stipulations set out in each document ... hence your dad's problems, as I understand what you have told us

I think you are wise to ask the OPG for their view, as they are the ones with the responsibility of oversight

members here offer suggestions in line with our own experiences ... we are not professionals, and even if we were we cannot give professional advice on the forums here (T&Cs)

sadly there also can come a point when a person is no longer considered to have capacity, I speak from my experience with my dad ... the intermediate stages between realising something is very wrong, and receiving a diagnosis, and heartbreakingly knowing there is no capacity can be a minefield

I hope the OPG can give you the info and reassurance your dad needs
Point taken and no my remarks did not factor in the special wording of which we have now learned. The exact wording has not been posted here but in any case it would seem best to get legal advice.
 

MartinWL

Registered User
Jun 12, 2020
397
I wonder if it might be an option here to tear up the LPA and apply to the court of protection for deputyship? I don't have experience of that but in this situation I would want to consider the possibility.
 

Lynmax

Registered User
Nov 1, 2016
590
I'm sure you could find evidence to show loss of capacity, as well as documenting your own observations, the level of support you provide and your questioning, you might have evidence such as unpaid bills, missed appointments due to confusion, buying inappropriate things, lost keys, giving money away etc. I never needed to provide evidence, just ticked any boxes that said mum had lost capacity but I could have founds loads of proof if necessary.
 

canary

Registered User
Feb 25, 2014
13,885
South coast
I wonder if it might be an option here to tear up the LPA and apply to the court of protection for deputyship? I don't have experience of that but in this situation I would want to consider the possibility.
Actually, one of the hardest things about applying for deputyship is that there is a form that has to be filled in and signed by a professional (the OPG gives a list of people who can fill it in) that states that they have lost capacity............
 

Claireyeddy

Registered User
Sep 21, 2020
35
Thanks for all your recent replies!

@MartinWL it appears that your initial advice was exactly what I was after! Since posting last night this has also now been confirmed by my Nan's own GP (finally). So thankyou very much for that! We are checking with the OPG to be on the safe side, but as we have the LPAs in place and it was just a question of establishing her mental capacity upon each decision, we think we were just very badly advised by someone in the first place which sent us on this manic chase for something that we don't even need!

@nita that's really helpful to know about the forms in the bank! We hadn't looked into this yet as until yesterday we believed we needed a medical professional to basically sign our decision off! We are now going to broach the questions with my Nan about the accounts and when we establish she is incapable of understand (100% likely) we'll book the appointment :)

Thankyou @Lynmax that's what we now understand the case to be with her LPAs too! It's incredible how many professionals including doctors and solicitors simply don't understand what the LPA and Mental Capacity Act allows families to do. We've been advised so poorly up to the last couple of days by a range of people who should have definitely known the answers. There's a huge gap in the language professionals seem to use as well. The solicitor told us we'd need to have an assessment to 'activate' the LPA, which was already registered and in place. When speaking to the GP, they took 'activate' to mean 'register' so initially thought we didn't even have the LPAs! Then there's us in the middle of these two professional parties, being pushed from pillar to post and having nothing explained properly! The system is nuts!
 

canary

Registered User
Feb 25, 2014
13,885
South coast
Im still slightly confused, but this quote seems to imply that you do not actually have a POA with additional clauses, just the "regular" one, which you can use straight away.
She also confirmed that these 'clauses' are ALWAYS contained in the Health and Welfare LPA, and are fairly standard in the finance one; it's just with the finance one most people usually have it in force immediately without the need for capacity to be questioned. But essentially, my GM's finance one is just set up in the same way as a health and welfare one, but there are no additional constraints that require a £400 independent assessment! (my bold)
You can get POAs which stipulate that they can only be used once capacity has been lost and I was always led to believe that, in this particular case, the additional clauses mean that you have to get independent verification that capacity has been lost. Im sure thats what the solicitor told me when OH and I did ours (we went for the "regular" ones). I would be interested to know whether this is, in fact, the case.