Do I have to have a deputyship?

Discussion in 'Legal and financial issues' started by Misstep, Jan 19, 2016.

  1. Misstep

    Misstep Registered User

    Oct 7, 2015
    57
    South Wales
    I have third party access to my mother's accounts and have had for a number of years because of her blindness. She has now developed dementia and lacks capacity. She is in a home, but all her expenses are covered and I do not want to sell her house within the next couple of years, so is there any reason why I would have to apply for a deputyship?
     
  2. Katrine

    Katrine Registered User

    Jan 20, 2011
    2,839
    England
    Hi Misstep. I thought you already had joint POA? See your previous thread: http://forum.alzheimers.org.uk/showthread.php?88436-Dispute-over-Mums-house

    Are you considering applying for deputyship in order to have the existing POA extinguished, thereby removing your step relative from the situation? The Court would not necessarily grant this. Have you spoken to a solicitor yet? Members of TP can express opinions, but we can't give definitive legal advice.
     
  3. Misstep

    Misstep Registered User

    Oct 7, 2015
    57
    South Wales
    Life took an unexpected turn. We'd applied for the PoA to be registered and it's been refused. My instinct is to leave things be for the time being. I spoke to a solicitor, who advised that I could move into the house so long as I can show that it's in Mum's financial interests, which I can. Her advice was based on the PoA being granted, so we're now in a different situation. I've only just found out, so haven't been able to get further advice yet. Mum is also much more 'with it' than she was and is adamant she doesn't want the house sold, because she wants to be able to visit there. I really don't want to apply for a deputyship, as we (I mean Mum & I) can carry on as we are for two or three years, bar something unexpected. I'm just wondering whether I actually have to apply for one.
     
  4. Beate

    Beate Registered User

    May 21, 2014
    11,746
    Female
    London
    Why was it refused? If you made an error in the application you can resubmit a new application. Or are you saying your Mum has lost capacity in the meantime? Really, LPA would save you a whole lot of trouble in the future. I don't see how you can sell her house without any kind of authority, and you never know what tomorrow will bring.
     
  5. Misstep

    Misstep Registered User

    Oct 7, 2015
    57
    South Wales
    PoA

    Mum has lost capacity to make a new one, although she has a level of capacity (hope that makes sense. She can talk about what's going on, but can't remember what we've talked about). I don't want the house sold, which is why I don't want to apply for deputyship if I don't have to. Both she and I would like things to continue as they are.
     
  6. Beate

    Beate Registered User

    May 21, 2014
    11,746
    Female
    London
    If she understands in the moment what she is signing, she can still sign an LPA.
    You might not want to sell now, but you might have to at some point. And when you do, you'll need some kind of authority. An LPA is cheaper and you'll have much less hassle with it.
     
  7. Misstep

    Misstep Registered User

    Oct 7, 2015
    57
    South Wales
    Unfortunately, she has been assessed as not having capacity, so a new PoA is out of the question. That just leaves a choice between "do nothing", which is my preferred option if it's allowable, or applying for deputyship, which I don't want to do if I can avoid it. I'm just not sure whether I'm obliged to apply for one, given that she does lack capacity.
     
  8. Katrine

    Katrine Registered User

    Jan 20, 2011
    2,839
    England
    #8 Katrine, Jan 19, 2016
    Last edited: Jan 19, 2016
    I can understand your reluctance to embark on extra administration, but without it you have no legal authority to manage your mum's affairs. Your access to her bank account is based on permission from the account holder, which is only effective while she has capacity. The Court takes a dim view of anyone informally operating the bank account of someone who has lost capacity, and it is probably against the rules of the bank also.

    If the application has been refused by OPG then they will be aware that your mum has lost (or may soon lose) mental capacity. I would have thought that without a valid LPA then OPG would recommend to the Court of Protection (COP) that a deputyship is required? Once the COP has been made aware that someone has lost capacity and has no-one authorised to manage their affairs, then the Court has a statutory responsibility to put delegated legal authority in place. Check with your solicitor of course, but I don't think an informal arrangement is an option any more.

    I hope your solicitor can explain why the OPG has rejected the POA application. It may be because it has conditional arrangements in it, e.g. decisions about expenditure over £5K. They don't like these, and sometimes such provisions are struck out. If too much of it has to be deleted then it may make the whole POA document invalid.

    Alternatively, it could be that you sent in a LPA in the old format, which had to be completed and signed before 1st Jan 2016 in order to be valid for registration. If this is the case and your mum can be deemed to have capacity in the moment, as others have said it would be much easier for you to get a new and simple LPA form signed and sent off for registration.

    Being assessed as not having mental capacity can mean many things. In terms of her welfare and living arrangements this may have been the conclusion of best interests meetings, supported by reports from various professionals. However, a solicitor may decide that she does have capacity to give instructions for a POA because in the moment she is clear and consistent about her wishes. My mum's solicitor took this view because when she visited my mum in hospital on two occasions the instructions were consistent and clearly expressed. My mum was quite frankly away with the fairies at that time but she was very clear about who she wanted to be her attorneys, and who she did not (me! and that's another story). Talk to your solicitor.
    It may not be too late for POA.
     
  9. Misstep

    Misstep Registered User

    Oct 7, 2015
    57
    South Wales
    #9 Misstep, Jan 19, 2016
    Last edited: Jan 19, 2016
    Thank you for your help with this. I've emailed my solicitor tonight, so hope to hear back from her soon. Sorry to hear about the "other story". There's nothing easy about this. OPG want the replacement attorneys deleted, so actually, we could still get the original one registered, thinking about it. Mum definitely has enough capacity to authorise that. She wanted one person to replace me if I died & a different one to replace my step-brother. They said that was inconsistent with us acting jointly and severally. I can't understand why, but there we are. I know she'd prefer to re-do it completely, because she didn't really want my step-brother to be involved in the first place, but I'm not at all sure that would be possible now.
     

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