Expert Q&A: Lasting Power of Attorney (LPA) – Thursday 27 Sept, 3-4pm

[SophieD]

Question via email:

"I have a question which has been difficult to get a proper answer. I am my mother's LPA, sadly she has Alzheimer's, which killed our dad 2 years ago. She is Finnish, but has lived in England for over 60 years now. For 29 years, she had a studio flat, which she eventually rented out to students for 9 months per year and her and my dad stayed there most July's. None of us in England can understand Finnish, but most of our relations live in Finland. Therefore my question is:

Can I get my most trusted Finnish relation to sort out tax , bank and pension problems in her home town in Finland in our behalf and what measures do I need to put in place?

It is my mother's niece. We all trust her implicitly. The Finns get taxed a lot, but we think mum is actually due a small rebate. Basically, there were quarterly taxes on the flat, which mum had inadvertently thought she had paid but never did. Finally, with mum, I managed to speak over the phone (I took her name when she gave me the relevant Iban numbers) to their tax office and settled both payments, one in each of my parent's names. But I never received any acknowledgement/receipt and we still received letters . They then decided to stop mum's small state pension to cover any owed taxes, even though we had told them that the flat was sold in 2016 and she had no income from Finland.

I went there in 2016, on holiday and ended up visiting her bank, pension and tax offices after we had put the property for sale. Mum had also kept the deeds in a safety deposit box in her bank .I cannot afford to go to Finland especially if they do not have it sorted and tell me to return another time. Plus the implications of my mother getting involved will bring up the difficulty and stress we all endured, where she believed she'd lost her independence and right to visit Finland again because she only remembers little things due to her illness.

Any help would be appreciated.

Meanwhile, I have just emailed all the most relevant documents thst I have on file (including a copy of the LPA from the office of the public guardian), to our cousin there and she will see what she can do to put this all to bed. It's hard enough sorting out welfare and financial matters in English, let alone a complex foreign language I can tell you!"

 

[FloraW]

Question via email:

"Can I charge my parents for my travel? Cost me a lot in UK and now from new home in France, even more. Also I'm rubbish at keeping any and all receipts/accounts. Does that matter? Paying the carers loads. As I am the main beneficiary by far it feels ok buying them carers time. But as for my transport, not so sure."

Hi. I am assuming that you have an LPA for property and finance for your parents, hence your questions here.

If so you can only claim expenses for things you must do to carry out your role as an attorney. That could include travel expenses (for example travel to a meeting with the bank) but wouldn’t include travel expenses for an ordinary family visit. With any expenses also you would always need to make sure they were kept to a reasonable level and are only incurred where it is sensible.

You should also keep accounts or some sort of record of what you are spending out of your parents’ money and keep yours and their money separate. The accounts don’t have to be in any particular form but should show what is coming in and going out.

So far as the carers are concerned these can be expensive but it might be an idea to get a few quotes to make sure you are getting value for money. The fact that you are the main beneficiary doesn’t mean that you don’t still have a duty to act in the best interests of your parents in relation to spending their money.

There is some guidance on the OPG website here:-

https://www.gov.uk/lasting-power-attorney-duties/records-expenses

and you can always speak to their Helpline on 0300 456 0300 if you want to discuss particular scenarios.

Hope this helps.

 

[SophieD]

Question via email:

"Can you tell us what to do from day one the power of attorney has helped himself to money £30.000 plus cheques mum has died and it would seem nobody will help we are with the Financial Ombudsman this is our last call. When you go to bank and ask questions they say he had power and can do what he wants. This needs sorting as he has taken advantage."

 

[HelenQ]

Question via email:

"I have completed an up to date Will and Powers of Attorney in Texas before I moved to the UK. Will the UK honor these when my Alzheimer’s progresses or when I die?"

Where you have legal rules from more than one country involved things can get complicated. There are even different legal regimes within the UK (England and Wales being different from Northern Ireland and Scotland).

Your Power of Attorney will apply in Texas in relation to any assets and property you have there. I don’t know if the Power of Attorney survives loss of mental capacity (like an LPA here). You would need to check with a lawyer in Texas. It would also be worth checking if it makes any difference if you live abroad.

If you have property and assets here that need managing in the future then your Texas Power of Attorney won’t automatically be accepted here (and may not be accepted at all). You should think about putting in place an LPA here (or similar if you are in Northern Ireland or Scotland).

The rules about wills are even more complicated and if you have property/assets in both Texas and here it would make sense to get advice from a lawyer here who can talk to your lawyer in Texas and hopefully join everything up (both in relation to powers of attorney and the will). Solicitors for the Elderly would be a starting point though make sure you get clear costs information up front:-

https://sfe.legal/

 

[FloraW]

Question via email:

"My father passed away very recently and my mother’s mental state has fallen apart. Over the past few years she has had all the symptoms of dementia, specifically Parkinson’s mixed with dementia. Agoraphobia, extreme anxiety, paranoia, audio hallucinations, jumping to noises that are small or not there at all. She is confused and unable to make decisions. She mutters under her breath all her paranoid thoughts. She is very depressed. She wont clean herself, change her clothes or brush her hair. These things have been getting worse over many years gradually. Now it has become so bad she thinks the house is bugged and that she is being monitored all the time. We both are executers to my dad’s will, to make sure his wishes are carried out. I do not believe she is able to do this. (I personally do not really get that much from the Will, which is fine as I have a good job.) Ideally she and dad should have gone to a solicitor and made it so I could have LPOA. I managed to get her to a doctor who was unhelpful and just gave her tranquilizers (which she refuses to take). Not sure what to do about getting LPOA now."

Before we get onto the LPA side of things it sounds like you have a lot going on here and none of it easy. It might help you to have a chat with one of the advisers on our National Helpline so that they can suggest ways that you might be able to get some support for your mum and yourself. There is information about them here:-

https://www.alzheimers.org.uk/get-support/national-dementia-helpline

If your mum is now unable to make an LPA then a deputyship application to the Court of Protection is the only option if she has assets (such as bank accounts or property) that need to be accessed e.g. to pay for care. If she has no assets and her only income is state benefits there is something called an appointeeship that you can set up through the DWP that allows those benefits to be paid to someone else to use on her behalf and in her best interests.

There is information about deputyships and appointeeships in our factsheet here:-

https://www.alzheimers.org.uk/sites/default/files/2018-06/6485%20AS%20Factsheet%20530%28web%29_0.pdf

So far as being an executor for your dad’s will is concerned if you believe that your mum lacks the mental capacity to be able to carry out that role you should speak to a solicitor (is there one acting in relation to your dad’s estate?) about her stepping down /being replaced as there is a procedure. Even if you had been appointed as her LPA attorney that would not in itself enable you to carry out her role as executor.

 

[HelenQ]

Question via email:

"My husband (who is 65) and I moved in with my dad in early June to care for him permanently as his behaviours were becoming increasingly bizarre. The turning point was when he turned up at our local hotel with a knife saying people were attacking him in his home. He would probably have been sectioned had we not moved in.

My sister took out LPA for his property and wealth in December when he started behaving strangely but didn’t bother with his welfare. I now have LPA for his health and welfare which I took out when I returned from Spain in January to help with dad. I have suggested that we are both named on both LPAs but she had refused.

Initially my sister thought that we should pay rent as we were moving in “for free” but I managed to compromise and agree to pay all the bills and all the food as well as pay for any improvements and decorating. I also have to let her know if I’m going to use his debit card to buy him clothes or anything and kind of get permission to do so.

It has been 4 months now and to say it is completely draining and incredibly hard work is an understatement. We are unable to leave dad alone at all on advice from the social worker and dementia team. We both feel that dad should be contributing to the household bills but are apprehensive about approaching my sister as she will just say move out and sell the house and dad can go into a home. She seems unable to see beyond the fact that we are living here “rent free” and doesn’t seem to understand that we are caring for him and technically saving him a lot of money as no carers are involved. Our lives have been turned upside down.

Sorry for the rambling email but I need to know where we stand legally and whether she can ask us to move out and sell the house. I have read somewhere that as my husband is over 60 the house can’t be sold to pay for dad’s care but as she has LPA for his property can she ask us to leave, despite dad needing care."

I am sorry that you are in this difficult situation. It can be really tricky where family members have different views about the way forward.

The main thing to focus on is what is in your dad’s best interests (if he can’t decide for himself-if he can then he should).That is what your sister has a duty to do as his financial attorney and the same for you as his health and welfare one. Obviously there is crossover between the two and if you can’t agree that is hard. You might want to consider setting up a best interests meeting with the two of you and everyone involved in your dad’s care (it looks like social services are involved). Sometimes a formal (ish) setting can take the heat out of family acrimony. Or you could consider some sort of family mediation. Your dad should still be involved as much as possible.

Have social services done a needs assessment? Do they think that your dad’s needs are best met at home as opposed to in residential care? If so that will carry a lot of weight and as his LPA attorney for welfare you will decide where your dad should live (subject to finances). If your sister wants to sell the house and move your dad into residential care then she would need to justify that on best interests grounds. Otherwise you could refer her decision to the OPG/Court of Protection on the basis she is not acting in your dad’s best interests.

You could prepare a financial analysis to put to your sister to show the relative costs involved in caring for your dad at home and him moving into residential care. Financially it isn’t just about the rental issue. Sometimes the Court of Protection will allow “family care payments” i.e. payments to family members to provide care to a person if that is in the person’s best interests all things considered. You’d need to look at the whole picture here but you might be able to argue that instead of getting such a payment you are living there without paying rent but you’d need to seek guidance from the OPG on that (0300 456 0300 ). Your sister would need to look at the costs of the different options and act in your dad’s best interests as I have said.

You need to be careful about your dad’s bank card being used if he lacks capacity to decide about payments. If your sister has an LPA then she should be making any payments needed for your dad’s welfare via whatever arrangement she has set up with the bank (or she could reimburse you).

What you have heard about the house not needing to be sold to pay for residential care if there is a close relative over 60 living there is from the rules about local authority financial assessment and there is more about those in the Society factsheet here:-



but it may depend why they moved in and anyway that’s a different point. The driver should be your dad’s best interests.

 

[HelenQ]

Question via email:

"Mother in law has recently been diagnosed with dementia. She is in a nursing home. Before she was diagnosed she had one of her sons added onto her bank account so he can do bank transfers to pay for her care home when payments are needed. There is also property and land and was wondering about how executors and poa worked as the family are all suggesting maybe selling everything off to bank that money as they are no longer needed by the family. 1 sister in america, 1 in st kitts and 4 brothers in uk. We take it in turns to go over for visits but we have found out that even though she has family there, because of her financial status were trying to fleece her of her money, hence why one of the brother's set up the bank system so we can keep an eye on her account from this side of the pond. Any advice would be greatly appreciated as we as a family are finding it very hard to trust the so called family members over in barbados. She made a will nearly 10 yrs ago just after the father in law died. All children and lawyer has a copy."

Hi. It’s really difficult to deal with this one as I am confused about who is where and where the money/property is.


Certainly if you have concerns about your mother in law being “fleeced” that is something you can raise with the local social services team as a safeguarding issue here (or possibly in Barbados if there is a similar system there and if your mother in law is in Barbados which she seems to be) and also with the police.


I can only give you information about the position in England, Wales or Northern Ireland.

As regards the bank account again I am not clear where that is but if it was in England Wales or Northern Ireland a joint bank account only helps so far where there is a likelihood of someone losing mental capacity to deal with their financial affairs. The bank can freeze the account when someone loses such capacity (to protect that person) until an LPA attorney or deputy steps in so if there is no attorney or deputy that can create problems. It makes sense therefore for the person to think about setting up an LPA while they are able to do that. I don’t know what the position is in Barbados.


There is a Barbados Alzheimer’s Association:-

Barbados Alzheimers Association

The Orchid, Strathclyde Crescent, St Michael, Barbados

Tel: +1 246 429 8007

Fax: +1 246 427 4256

They may be able to offer some assistance.


Otherwise you are welcome to contact our National Helpline ( 0300 222 11 22 ) to provide some more information and we can then give you a better steer from there.

 

[FloraW]

Question via email:

"Is there any limit that GPs can charge for signing the forms for a PoA? My previous GP wanted £165 which I couldn't afford and wouldn't have paid if I could. I have since moved area 2yrs ago can I ask my new GP to sign or do they have to know you for a certain time?"

Unfortunately there is no guidance about what GPs should charge in this case (unlike in some others). Being a certificate provider for an LPA is outside the scope of the GP NHS contract so that means they can charge. If they were unreasonable a complaint could be made.

It is up to the individual GP whether, in their professional opinion, they feel they can give the certificate .There is no requirement for professional providers that they have to have known you for a certain period of time.

It is also possible for a non- professional to be a certificate provider. They must have known you well for at least two years (well enough to have an honest conversation about what you are doing , to make sure you are not being forced into making an LPA and understand the consequences). They should not be a member of your family or of your attorney’s family .Examples might be a friend or neighbour or a work colleague. In cases of doubt you can speak to the OPG and there is guidance on their website here:-

https://www.gov.uk/power-of-attorney

 

[FloraW]

Question via email:

"Do we have to wait for the person with Dementia/Alzheimer’s to have been assessed as lacking in mental capacity to enforce the LPA?"

There is no rule that there has to be a formal assessment. In most cases it will be a judgement for the attorney/s. If they are not sure it is open to them to take professional advice if they want.


Remember that a property and finance LPA can be used (unless it says otherwise) whilst the person still has capacity to make the relevant decision but with their consent. This can be useful if the person just needs some extra help.


A health and welfare LPA can only be used where the person cannot make the decision for themselves (having been given as much support as possible to do so).


In practical terms different organisations with whom you might need to deal in relation to an LPA will have different requirements (and in some individual cases might require a capacity assessment) but the law says that capacity should be assumed unless the contrary is shown.


You might find our factsheets on LPAs and also on the Mental Capacity Act (which deals with decision making) helpful:-


https://www.alzheimers.org.uk/sites/default/files/migrate/downloads/factsheet_lasting_power_of_attorney.pdf


https://www.alzheimers.org.uk/sites/default/files/migrate/downloads/factsheet_mental_capacity_act_2005.pdf

 

[HelenQ]

Question via email:

"My partner has just been diagnosed with Alzheimers and I'm getting LPA set up by a professional adviser while he still has capacity. My question is: once the LPAs are registered with the OPG, when and how do I use them? Will guidance be issued by the OPG with them? Or do you know of a good information source on how and when to use them please?"

Many thanks for raising this. To be honest there could be more guidance out there for attorneys in terms of the practicalities of being an attorney and that is something that we are having a think about.

We have the following factsheet on LPAs:-

https://www.alzheimers.org.uk/sites...loads/factsheet_lasting_power_of_attorney.pdf

The OPG are always there via their Helpline ( 0300 456 0300 ) for you to raise questions and they have produced the following general guidance for attorneys (which links to some specific guidance they have produced about gifts):

https://www.gov.uk/lasting-power-attorney-duties



I hope this helps.

 

[FloraW]

Question via email:

"I have a question which has been difficult to get a proper answer. I am my mother's LPA, sadly she has Alzheimer's, which killed our dad 2 years ago. She is Finnish, but has lived in England for over 60 years now. For 29 years, she had a studio flat, which she eventually rented out to students for 9 months per year and her and my dad stayed there most July's. None of us in England can understand Finnish, but most of our relations live in Finland. Therefore my question is:

Can I get my most trusted Finnish relation to sort out tax , bank and pension problems in her home town in Finland in our behalf and what measures do I need to put in place?

It is my mother's niece. We all trust her implicitly. The Finns get taxed a lot, but we think mum is actually due a small rebate. Basically, there were quarterly taxes on the flat, which mum had inadvertently thought she had paid but never did. Finally, with mum, I managed to speak over the phone (I took her name when she gave me the relevant Iban numbers) to their tax office and settled both payments, one in each of my parent's names. But I never received any acknowledgement/receipt and we still received letters . They then decided to stop mum's small state pension to cover any owed taxes, even though we had told them that the flat was sold in 2016 and she had no income from Finland.

I went there in 2016, on holiday and ended up visiting her bank, pension and tax offices after we had put the property for sale. Mum had also kept the deeds in a safety deposit box in her bank .I cannot afford to go to Finland especially if they do not have it sorted and tell me to return another time. Plus the implications of my mother getting involved will bring up the difficulty and stress we all endured, where she believed she'd lost her independence and right to visit Finland again because she only remembers little things due to her illness.

Any help would be appreciated.

Meanwhile, I have just emailed all the most relevant documents thst I have on file (including a copy of the LPA from the office of the public guardian), to our cousin there and she will see what she can do to put this all to bed. It's hard enough sorting out welfare and financial matters in English, let alone a complex foreign language I can tell you!"

This sounds like a very difficult situation. Unfortunately this enquiry is a little out of our of remit since we our knowledge base is centred on law in England and Wales.

You need to act in your mum’s best interests but if you are happy for your cousin to help with your mother’s situation in Finland, the first step could be for her to seek advice from her local Alzheimers Society office on the next steps for sorting out this matter. The Alzheimers Society in Finland is called: Muistiliitto and the website is here: https://www.muistiliitto.fi/fi/etusivu.

Another option would be to seek legal advice from someone aware of Finnish law. The Finnish Bar Association has an English translation button for the website and from there you can use their ‘Find a Lawyer’ tool to search for a lawyer who speaks English and has knowledge of the appropriate legal area https://www.asianajajaliitto.fi/. Be aware that getting advice from a lawyer may require a fee.

You could also try to use the Finnish Legal Aid website to seek further information. This has an online chat in English for 2 hours every Wednesday morning and can be found at: https://oikeus.fi/en/index.html.

 

[HelenQ]

Question via email:

"Can you tell us what to do from day one the power of attorney has helped himself to money £30.000 plus cheques mum has died and it would seem nobody will help we are with the Financial Ombudsman this is our last call. When you go to bank and ask questions they say he had power and can do what he wants. This needs sorting as he has taken advantage."

Even though your mum has died now and therefore the LPA no longer stands, it may still be useful to get in touch with the Office of the Public Guardian to report the actions you believe the attorney has engaged in and get a response from them about it. The information around reporting attorneys can be found on their website here: https://www.gov.uk/report-concern-about-attorney-deputy.


You may also find it helpful to talk to Action on Elder abuse who will be familiar with situations like your own. They offer a helpline which is 080 8808 8141. If you want to take a look at their website it can be found at: https://www.elderabuse.org.uk.

Another route to follow would be to seek legal advice. A lawyer can offer your more in-depth advice on the nature of your particular case. However they are likely to charge for this service. To find a Lawyer you could visit The Solicitors for the Elderly: https://sfe.legal. You can also take a look at the to seek a lawyer:


Finally as financial abuse is a crime it is also something you can report it to your local police department. You can search for your local department details here at https://www.police.uk/


Before pursuing any of these routes it can be useful to put together all the information and evidence you have that leads you to believe this has happened to your mum so you have a clear picture to explain to others.

 

[SophieD]

Question via email:

"My dad set up an Enduring Power of Attorney several years ago when he retired. I was able to start using this about 4 years ago, just to assist him. Then when he was diagnosed with dementia I registered it. I was told by a consultant that it was too late to apply for a Lasting Power of Attorney for health and welfare decisions. Since then on several occasions I've been asked if I have LPA for Health and Welfare and have come to the conclusion it was probably too late.

However, when the issue came up again when changing care companies for live in care, I was told my dad would have to sign his care plan (which he won't) and the Care Manager in the company said he didn't have the capacity to sign it. I wouldn't be able to sign it because I didn't have the LPA.

I then asked a solicitor for advice about Court of Protection Deputyship for health and welfare. It was discussed with colleagues at the firm and they came back to me and said it would cost thousands to go down this route, there would have to be an actual court case and it's almost impossible to do it. They recommended a Consultant Psychiatrist in the NHS who would do a mental capacity assessment privately and they got my permission to write to them and request this, it would be an agreement between us and the doctor and the doctor would invoice us.

The doctor came and because mental capacity is assessed on a decision specific basis, she decided that my dad was quite consistent in his answers and in her opinion he did have the capacity to decide that myself and my mum could make his health and welfare decisions if he was unable to do so. She signed the form as certificate provider.

I am about to register this LPA and now I'm concerned as to whether I should be registering it or if I should get my dad to. And would it flag up that he already has an Enduring Power of Attorney set up and registered as regards finance and property and am I likely to get into trouble??

Looking forward to receiving some advice on this. I'll be sending the LPA off for registering in the next few days."

 

[SophieD]

Question via email:

"I am supporting a carer whose mother has Frontotemporal dementia but she still has capacity currently. They applied for LPA back in March this year both for Health and for Finances.

The Health one came back in June with no problems, however she has yet to receive the Finances one back, she has chased OPG three times, however they have said it is with the solicitors and they are not able to chase it.

She is concerned as she said she does not know how much longer her mother might have capacity and she doesn't know what will happen if they still have not received the LPA back and her mother is unable to make a decision around her finances.

Are you able to offer any suggestions of a way in which she could find out the progress of the LPA or if she has not received it would it need to go via the Court of Protection if her mother needs to make a decision and it is deemed she does not have capacity?"

 

[HelenQ]

Question via email:

"My dad set up an Enduring Power of Attorney several years ago when he retired. I was able to start using this about 4 years ago, just to assist him. Then when he was diagnosed with dementia I registered it. I was told by a consultant that it was too late to apply for a Lasting Power of Attorney for health and welfare decisions. Since then on several occasions I've been asked if I have LPA for Health and Welfare and have come to the conclusion it was probably too late.

However, when the issue came up again when changing care companies for live in care, I was told my dad would have to sign his care plan (which he won't) and the Care Manager in the company said he didn't have the capacity to sign it. I wouldn't be able to sign it because I didn't have the LPA.

I then asked a solicitor for advice about Court of Protection Deputyship for health and welfare. It was discussed with colleagues at the firm and they came back to me and said it would cost thousands to go down this route, there would have to be an actual court case and it's almost impossible to do it. They recommended a Consultant Psychiatrist in the NHS who would do a mental capacity assessment privately and they got my permission to write to them and request this, it would be an agreement between us and the doctor and the doctor would invoice us.

The doctor came and because mental capacity is assessed on a decision specific basis, she decided that my dad was quite consistent in his answers and in her opinion he did have the capacity to decide that myself and my mum could make his health and welfare decisions if he was unable to do so. She signed the form as certificate provider.

I am about to register this LPA and now I'm concerned as to whether I should be registering it or if I should get my dad to. And would it flag up that he already has an Enduring Power of Attorney set up and registered as regards finance and property and am I likely to get into trouble??

Looking forward to receiving some advice on this. I'll be sending the LPA off for registering in the next few days."

Hello

I am surprised that you were told that a health and welfare LPA or deputyship was needed in order to approve a care plan. If your dad was able to sign it himself (with capacity) he should have done that and if not a best interests decision could be made.

If the psychiatrist has said that he has capacity to make the LPA then I don't see why he can't sign the care plan but if he wants a health and welfare LPA for the future he can apply for one now on the basis that capacity is time and decision specific and the pyschiatrist has signed as certificate provider.

It makes no difference whether you or he make the application to register.

I hope this helps.

 

[HelenQ]

Question via email:

"I am supporting a carer whose mother has Frontotemporal dementia but she still has capacity currently. They applied for LPA back in March this year both for Health and for Finances.

The Health one came back in June with no problems, however she has yet to receive the Finances one back, she has chased OPG three times, however they have said it is with the solicitors and they are not able to chase it.

She is concerned as she said she does not know how much longer her mother might have capacity and she doesn't know what will happen if they still have not received the LPA back and her mother is unable to make a decision around her finances.

Are you able to offer any suggestions of a way in which she could find out the progress of the LPA or if she has not received it would it need to go via the Court of Protection if her mother needs to make a decision and it is deemed she does not have capacity?"

Hi

The mum needs to chase the solicitors if the hold up is with them. If she can't get a response she can make a complaint. They are providing a service to her. She needs to know what the issue is so it can be resolved and if needs be corrected while she still has capacity to do that.

I hope this helps.

 

[HarrietD]

Ok everyone, that brings us to the end of today's Q&A on LPAs. A huge thanks to @HelenQ and @FloraW for giving their time and expertise. Thanks also to @SophieD for sharing the questions that came through via email.

Whatever stage you're at in the process, I hope you all found it helpful