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Desperate for advice on my family's situation!

Claireyeddy

Registered User
Sep 21, 2020
35
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.
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.
Hi thanks for your reply!

That's because we had been told by someone within the solicitors office (incorrectly) and someone at the MAS unit (again incorrectly), as well as the GP surgery that the 'clauses' in her LPAs required such a medical assessment, because they did not understand that the MCA allows us to make those judgements. But now that we've spoken to more professionals, it turns out they are the standard ones that anybody can select to have in place! They still require her to have lost capacity in order to override her decisions, but there's nothing additional in her LPAs to state she must be assessed by a medical professional and therefore under the MCA 2005 we as her family can make that assessment. It's just how we'd been poorly advised. Having spoken now to an independent metal capacity advisor, and Dementia UK, and the lead GP at her surgery, we now know that all of these people were incorrect and clearly don't understand how LPAs or capacity works themselves! Apparently this is common. And very unhelpful for carers and families. We are going to keep a log of how we came to decide whether she'd lost capacity on each decision we have to make on her behalf just incase it's contested, but it sounds as though you've been led to believe potentially wrongly too. It would be worth you checking I think! When I think about it now, this does make sense, as we were baffled as to how we could possibly obtain a medial capacity assessment every time a decision needed to be made. The doctor did also say though that for any major decisions she needs to make it is advised to have someone assess her capacity, but this is rare and for times when it would be more prudent to have someone independent decide i.e. with Will issues or life threatening operations. She has also now agreed to do this for us if we ever require it, finally. I hope this helps as judging by the mixed responses on this thread, lots of people could have been told different things!
 
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canary

Registered User
Feb 25, 2014
13,894
South coast
Yes, I understand what you are saying @Claireyeddy and this is how the "regular" POAs work. It certainly sounds like you have, actually, just got the "regular" type of POA

But, if its the same when additional clauses are added, Im wondering what the point of these additional clauses is.
 

Claireyeddy

Registered User
Sep 21, 2020
35
Yes, I understand what you are saying @Claireyeddy and this is how the "regular" POAs work. It certainly sounds like you have, actually, just got the "regular" type of POA

But, if its the same when additional clauses are added, Im wondering what the point of these additional clauses is.
I have been told it is just an extra test attorney's need to apply in making decisions and preventing attorneys from taking over until its absolutely necessary. We have been told that the Health and Welfare LPA will always contain this, and my Nan just asked for this to be included on the Finance and Property one too. For example, when my Nan first made the LPAs, my Dad would not have been able to make decisions or override her on anything, because she was still lucid enough to understand and make them for herself, as the 4 points in the MCA 2005 would have demonstrated if we'd applied them. It basically prevents attorneys from being able to use finances from the get go, for example. It's a safety measure. If for example, my Dad had tried to make decisions without taking notice of the capacity points, and it had been contested and she was then found to have good capacity (hypothetically) then the LPA could be cancelled and my Dad could be banned from being an Attorney. If however my Nan suddenly decided she wanted to change her Will, or sell the house, then a major decision would require an independant assessment, according the people I have spoken to over the last couple of days, because its the most responsible thing to do in such a scenario and alleviates responsibility of the family in something so drastic. I guess the capacity phrasing is there as an extra measure to establish best interests and a way of ensuring relatives are being prudent. It is all a bit baffling though, I agree!
 
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Claireyeddy

Registered User
Sep 21, 2020
35
With all of this information that I'm relaying, I can't stress enough that until two days ago I had no clue either and so can only go on the advice I'm being given personally, so it's always worth checking your individual circumstances! Although we are now fairly confident in this advice, we are still waiting to hear from the OPG to confirm. The best helpline I found after ringing 7 or 8 was through Dementia UK, run by specialist nurses, so I highly recommend them if anyone is similarly confused as we were. We were also lucky to come across an independent capacity assessor, who is not only a trained social care occupational therapist but also a lawyer, so other areas may have someone similar, who confirmed that, frustratingly, there is much confusion about the MCA 2005 and LPAs in general amongst both GPs and solicitors.
 

Whisperer

Registered User
Mar 27, 2017
231
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...
Dear @Claireyeddy

Thank you for this informative post. Please do advise of comments from the OPG when you receive them. Carers seem to get poor advice, support and help from to many professional sources. Not every time it would be wrong to say that but to many times. I appreciate your efforts to seek clarity on this point and helpful comments posted by others. This really sums up why to many carers end up thinking it is them and their loved one against the system, rather than seeing it as the positive partnership it should be. Look forward to you posting again on this point.
 

Claireyeddy

Registered User
Sep 21, 2020
35
Dear @Claireyeddy

Thank you for this informative post. Please do advise of comments from the OPG when you receive them. Carers seem to get poor advice, support and help from to many professional sources. Not every time it would be wrong to say that but to many times. I appreciate your efforts to seek clarity on this point and helpful comments posted by others. This really sums up why to many carers end up thinking it is them and their loved one against the system, rather than seeing it as the positive partnership it should be. Look forward to you posting again on this point.
Thankyou @Whisperer ! I will certainly confirm once we hear back from the OPG. We are happy now that we have the correct advice given the people we have now spoken to. It's crazy to think there is so much misinterpretation even between professional bodies which is causing much confusion. I agree it isn't every time, the last two days have seen us receive the best advice in this process so far! We've just been misfortunate, I now think, with who we have been advised by up to this point. Scary for carers and families. I only hope this thread can help!

Hopefully I will be able to post the OPG's response soon.
 

Betty65

Registered User
Aug 12, 2020
24
I am going through something similar with my mum. I have been told by her doctor that I can request a care assessment at any time especially if things have changed since the last assessment. You can do through your local council website.
Also, my mum was in hospital with a heart attack in January and whilst there she had a CT scan. When I spoke to mums GP about getting a diagnosis she asked the radiographers to revisit that scan and from that the doctor was able to diagnose that mum has mixed alzeimers and vascular dementia. So your doctor should be able to get the results easily enough. I do find that I get a prompter result if I email the doctor rather than calling.
 

Claireyeddy

Registered User
Sep 21, 2020
35
Hi everyone :)

I promised to update this thread once I had a response from the OPG. We received an email yesterday and they confirmed that the conclusions I had made surrounding capacity are correct. We had indeed been sent in circles by solicitors, the MAS Unit, and even a GP hunting for something that doesn't exist and isn't necessary, when we can make the majority of judgements on my Nan's capacity ourselves on a day by day basis when decisions are necessary.

I really hope this thread assists others in a similarly confusing position, because there is truly a lot of misunderstanding out there even among professionals when it comes to using LPAs and the MCA. I cannot recommend enough the Dementia UK helpline, who seem to be the only people who truly know what they're talking about!

In the meantime, just yesterday, we have been contacted by specialists on the MAS team who have set up a socially distanced meeting with my father and Nan for next week to discuss her test results and diagnosis. After speaking with her on the phone they alerted my Dad to the fact that they feel she is fast approaching 'crisis point' (whatever that means!) So I suspect things will start to happen fairly quickly from now.

I hope everyone is having a good week and thankyou for all your support for my first thread, it truly cracked the 'code' for us and helped a lot! Claire x
 

Veritas

Registered User
Jun 15, 2020
69
@Claireyeddy
Thank you for the update - really useful.

I hope that the wheels now start turning in your family’s favour.
 
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MartinWL

Registered User
Jun 12, 2020
398
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
I registered an Enduring Power of Attorney with the OPG. There is quite a process to go through of giving notice to specified family members which in my case meant finding the addresses of cousins with whom I had long ago lost contact. But you don't need any professional help, and the OPG not a court makes the decision to validate it... eventually. There is no capacity test involved.
 

Just me

Registered User
Nov 17, 2013
488
Hi everyone :)

I promised to update this thread once I had a response from the OPG. We received an email yesterday and they confirmed that the conclusions I had made surrounding capacity are correct. We had indeed been sent in circles by solicitors, the MAS Unit, and even a GP hunting for something that doesn't exist and isn't necessary, when we can make the majority of judgements on my Nan's capacity ourselves on a day by day basis when decisions are necessary.

I really hope this thread assists others in a similarly confusing position, because there is truly a lot of misunderstanding out there even among professionals when it comes to using LPAs and the MCA. I cannot recommend enough the Dementia UK helpline, who seem to be the only people who truly know what they're talking about!

In the meantime, just yesterday, we have been contacted by specialists on the MAS team who have set up a socially distanced meeting with my father and Nan for next week to discuss her test results and diagnosis. After speaking with her on the phone they alerted my Dad to the fact that they feel she is fast approaching 'crisis point' (whatever that means!) So I suspect things will start to happen fairly quickly from now.

I hope everyone is having a good week and thankyou for all your support for my first thread, it truly cracked the 'code' for us and helped a lot! Claire x
Thanks for the update which should make things a little easier for you. Such hard work getting the correct interpretation though.
 

Claireyeddy

Registered User
Sep 21, 2020
35
The Medical Protection Society offer a free online training course on the Mental Capacity Act.


I am part way through it. It is good. It is really aimed at doctors but much of it is also relevant to attorneys and carers.
Thanks for the update which should make things a little easier for you. Such hard work getting the correct interpretation though.
Thankyou so much for your replies! I will refer my Dad and Uncle to that training course as they are the POA, I think it could be really, really useful for them! It was massively hard work getting the correct information but thankgod we are there now!

It also seems that direct contact with the MAS team and understanding the process inside out paid off, as today we received her diagnosis via Zoom with a doctor a lot more quickly than they advised this time two weeks ago! We have learned she has mixed dementia; in her case, a combination of Alzheimar's and Vascular. She seemed to accept the diagnosis initially, but went into denial fairly quickly following the end of the call so we will tread lightly with this and continue to reassure her. We are seeing this as a positive as now though we can finally get her on some medication which will hopefully slow the progress of the condition and get the correct levels of care in place. What an insanely long process for sufferers!