do I have to now register an enduring power of attorney

[JPG1]

as a matter of principle she didn't think it was a good idea for a person to hand over that amount of control to another person.

Well, JamesT, I wonder whether we have both met the same solicitor.

Because when I very recently asked the same question of my solicitor, she said exactly the same to me.

She said that she has never advised anyone to consider LPA for personal welfare, and that she would not consider doing so.

In a nutshell, she said ... when pushed ... that she felt it unwise to give to anyone else a blank cheque in the ability to "pull the plug". Her exact words. And no, I didn't bother following it up that same day, because there were other more pressing matters to deal with. And, at £200 per hour, I was in no mood to waste time!!

And I didn't feel at the time that she was imposing her own personal views on me, merely that she was advising me in her capacity as a solicitor. Giving me food for thought. Which may give further pause for thought about any solicitor that we consult.

It may only be years later that we discover that a solicitor who advised us years earlier ... got it wrong. And maybe got it completely wrong. And, like anyone else, solicitors make mistakes.

But then again, a solicitor may do whatever his/her client instructs that solicitor to do. Just as any other professional may do. As long as they have explained their own reservations about the consequences of X, Y or Z decision. I wouldn't argue with that, as long as it's all been explained, in advance, and recorded as such.

So, thanks JamesT. For evidence that I didn't find the only solicitor who has advised against LPA for welfare decision-making.

However, my solicitor did explain that it is possible to place 'limits' on the powers of the LPA. Meaning, that there would be a chance to define the powers donated under the LPA.

I am still contemplating those definable powers, but I think I now understand what she meant.

So, I accept the 'thinking considerations and reasonings' of my own solicitor.

.

 

[jenniferpa]

But that's the point - she gave you the advice but she at least gave you the option, which is not what happened to JamesT. Further - I think (and have seen no evidence to the contrary) that the welfare LPA does NOT give another person "plug pulling" power - that decision currently rests firmly with the doctor. Advising someone not to make a welfare LPA because of misgivings about the power it gives (no matter if those misgivings are based on inaccurate information) is entirely different to deliberately keeping a client in the dark about the option.

 

[JamesT]

Yes I now feel a bit bemused

It may well be that the solicitor said something to this effect when we met 2 years ago, I just can't remember to be honest. It was all in the flow of a conversation, I was very new to the issues involved and may well have just accepted the expert advice without thinking too much about it.

On reflection, I wish I had investigated the issues in more detail.

Perhaps I should seek a different solicitor now and see if that LPA can be set up. Though I am not certain whether Mum has sufficient capacity to make that LPA now.

 

[JamesT]

Ps

Yes, concern about a person having the power to pull the plug (not necessarilt the exact words) on someone else was the issue.

 

[JPG1]

The EPA was fine then and is still fine now. It has been replaced by the LPA, but an ‘old’ EPA is still fine, registered or to-be-registered in the future.

And the EPA was only ever designed to cover financial matters, and has no real clout in the decision-making process about welfare, medications, where to live, etc. Yes, in theory it gives an indication of trust. That’s all. It can be ignored at will by any authority.

But, and it is a big BUT:

As long as there is no such thing as next-of-kin having powers about anything at all, then no medic is obliged to obey next-of-kin desires. Consider them, yes. But not necessarily to adhere to them. The docs always retain the ultimate power which gives them the right to make decisions “ in the best interests” of their patient.

It does not mean that they always do make decisions “in the best interests of their patient” – it is a cloak behind which they can shelter if they wish to do so.

And JamesT wasn’t the client. His mother was the client. His mother was at the early stages of dementia.

Was there an LPA available 3 years ago, when you consulted your mother’s solicitor, James? I can’t remember the timescale now, but I don’t think there was.

In any case, the welfare LPA does have within it the possibility to restrict the powers donated, or even to enhance the powers donated. And that is important to remember.

And there are alternatives to the welfare LPA, which might also be worth considering.

So, i personally don’t feel that your mother’s solicitor did anything untoward, then.

But I may be wrong. Which is why it is important to GET IT IN WRITING, as any decent solicitor should/will do. Namely, to send an upsum of whatever conversation you have had with him/her.

Yes, it's all within the final costing, but better in writing than not at all. Because, like you JamesT, I can't remember the precise wording used throughout our one-hour meeting.

 

[jenniferpa]

I do think it's a pity that the solicitor should have given advice to her client (actually your mother) based on a misapprehension. There is nothing (and there was nothing 2 years ago) to indicate that giving such an LPA would give the anyone more rights over another person's body than they would have themselves. While assisted suicide is still illegal in the UK, while you can't ask a doctor to end your life, then an LPA has no more power than the individual would have. Frankly, I would (if I was in the UK) appoint a welfare LPA to make the "tough" decisions if that option existed. I have a living will, personally, but this is more "guidance" than "compulsion" in the UK.

However, it does sound like it's too late for you mother to make one of these, so, no matter how outraged I am, you have to go with the hand you have been dealt.

There is a PDF file on the court of protection's website which covers when and how an attorney should be consulted. However, that only applies if the EPA has been registered. I'm not sure why you haven't registered it yet: this should be done when the donor has started to lose capacity, according to the COP and it sounds like you have reached that point.

 

[JamesT]

Thanks for the thoughts

I think it's likely that in the conversation with the solicitor, I quickly accepted a recommendation not to seek power over medical/care decisions - probably feeling that doctors would "know best" and would involve me anyway in discussions as next of kin.

By the way, these conversations happened a few months before Oct 2007 when the two types of LPA came into effect.

Anyway, I think you're right that I probably now have to go with the hand dealt, and will register the EPA.