Health and Welfare LPA when the person already has Alzheimers

[spirituscorpus]

My mother took out an LPA over 20 yrs ago-she is now 95 and has Alzheimers.

She currently has a live in carer with her and we can possibly sustain that financially for 10-12 months.

At the time I don't think the POA's were split in two (finance AND health) but as we nudge closer to my mother possibly needing a nursing home in the future then I have started to explore the options in more detail.

I rang the solicitor today and was told that due to her Alzheimers there is no way that we can get a POA for health and welfare for my mother and an application would have to go through the courts and that this process could take 12 months.

I am struggling to understand the complexities of this as what would happen if my mother was in urgent need of care which either couldn't be provided at home OR she simply runs out of savings to pay for her live in care?

Does anyone know what happens in these circumstances? At the moment this is only hypothetical but surely there should be some decisions made in her best interests whether that is from myself or social workers if the needs arise.

 

[Mumlikesflowers]

Hi,

Hmmm.....do you have the Enduring Power of Attorney docs somewhere? If so it says here it takes 8-10 weeks to register them with the Office of the Public Guardian. They should be valid. Yes it's too late to do LPA now she lacks capacity.
https://forum.alzheimers.org.uk/thr...hen-the-person-already-has-alzheimers.145559/
https://www.gov.uk/enduring-power-attorney-duties/register-an-enduring-power-of-attorney

Or speak to the OPG direct on
Email
customerservices@publicguardian.gov.uk
Telephone
0300 456 0300

 

[Kevinl]

Based on my experience with both my wife and my mum being the next of kin still counts for a lot, health-wise at least. The NHS likes to keep it covered so as the NoK I did get asked.
K

 

[SAP]

I’m assuming this is an Enduring Power of Attorney that your mother has. You can still register this to support your mum with managing her finances.
It is too late for a LPA for health and unfortunately as she lack capacity. The following link offers some explanations.

Is an Enduring Power of Attorney still valid today?

Since the 1st October 2007 it has no longer been possible to make an Enduring Power of Attorney, with Lasting Powers of Attorney for Property and Financial Affairs having been brought in as a replacement. However, Enduring Powers of Attorney are still valid if signed before this date. Call...

www.winstonsolicitors.co.uk

 

[spirituscorpus]

I’m assuming this is an Enduring Power of Attorney that your mother has. You can still register this to support your mum with managing her finances.
It is too late for a LPA for health and unfortunately as she lack capacity. The following link offers some explanations.

Is an Enduring Power of Attorney still valid today?

Since the 1st October 2007 it has no longer been possible to make an Enduring Power of Attorney, with Lasting Powers of Attorney for Property and Financial Affairs having been brought in as a replacement. However, Enduring Powers of Attorney are still valid if signed before this date. Call...

www.winstonsolicitors.co.uk

Thank you and yes. It is an enduring POA for financial matters registered a number of years ago.
To be honest, I don't even recall the solicitor telling us at the time that it had to be "activated" as I am pretty sure I would have assumed that the fee we paid WAS enabling the POA to come into force if necessary.

That's water under the bridge now as I now know differently but I would have thought that it would have been good practice for the solicitor to inform us of new legislation once the POA's were split between financial and health.

My question is really what happens if mum does need a care home? Waiting 12 months for a court decision doesn't seem like a viable working solution. Would Social Services step in?

 

[Kevinl]

Social Services legally have a duty of care, you don't, harsh thing to say I know, but legally its their problem not yours. Sometimes doing the right thing saves social services fulfilling their legal responsibilities.
K

 

[Mumlikesflowers]

Yes I see EPAs are finance only. But what @Kevinl is saying is that you still have a lot of status as Next of Kin. My brief search on how long on it takes to set up a deputyship suggests that it's definitely not as much as a year.

https://www.alzheimers.org.uk/get-support/legal-financial/application-process-deputy

I am not expert on this but I'm thinking defo be speaking to social services about Mum's situation now anyway if they have no knowledge of her. I always did this even though we've been totally self-funding throughout. And I'm also thinking they would always give you guidance about options even if that's just sending you lists of them. I agree, 10-12 months left to be able to pay for the live-in carer is the right time to think about what happens next and suggests she will become entitled to funding.

 

[nitram]

H&W deputyships are extremely rare.
The COP much prefer dealing with events as they occur, usually as a result of a contentious best interests meeting which can happen with an H&W LPA in place.

 

[SAP]

Firstly you are highly unlikely to get deputyship for health and welfare so I’m not sure what your solicitor is talking about.
Social services and health depts should consult with you as next of kin as to your mums and the family’s wishes and they should keep you updated informed. Big decisions like going into a home need to be made in accordance with the law if your mum no longer has capacity but this is true if the family hold LPA for health and welfare.
From what you have said, your mum will be needing funding in the coming months as her savings fall below the £23,500 ( England) , social services will do an assessment of her needs and her finances. They will not pay for full time home care and having LPA for H&W makes no difference to this. If the assessment suggests that your mum will be better in a care home , then as the funders, the local authority will find a placement that they can fund but they should consult with you.

 

[Collywobbles]

I tried to help get a Court of Protection Deputyship sorted for my Granny, as she’d always refused to set up a POA. The COP have massive backlogs and have had for a couple of years now. It wouldn’t surprise me to know it’s 12 months and more now.

 

[Scarlet Lady]

I think you may be making this unnecessarily complicated, @spirituscorpus . Enduring Powers of Attorney were replaced by Lasting Powers of Attorney in 2007 partly because the wording of EPA didn’t clearly cover all eventualities. However, in practice, they are still legitimate and will usually be accepted without question. I certainly had no problems with my aunt‘s EPA being accepted (she died in 2022), whether it was for finance or health issues. By the time you get to lack of capacity, most health professionals will accept you as next of kin anyway, as it will be impossible to deal with the PWD On their own.
It‘s true that once lack of capacity is reached, the EPA should be registered with the OPG , but I found in practice, we managed fine without it. I was only ever once asked what the EPA covered ( by a youngster who had never seen one) and I said very firmly ‘it covers everything’, because it was so vague that that could well have been the case. It was accepted without question. If you get to the point that your mum requires care and her self funding runs out, I doubt very much that the LA will raise a stink about whether or not the EPA has been formally registered with the OPG as long as you can produce the appropriate certified copies.
As far as solicitors are concerned, I’m assuming that once your mum had used their services to draw up the EPA (and possibly a will, as doing both together is common), they would have no further involvement in the proceedings, unless you wanted them to register the EPA with the OPG on your behalf. They most certainly wouldn’t notify you of changes to legislation, etc, especially since the change from EPA to LPA didn’t in any way invalidate the EPA. I suspect the person you spoke to at your solicitors hasn’t understood the situation.
My advice would be to proceed with confidence and don’t worry too much about the future. Your mum did the right thing in taking out an EPA in the first place and you are still covered by that.

 

[Pickalily]

Hi,

Hmmm.....do you have the Enduring Power of Attorney docs somewhere? If so it says here it takes 8-10 weeks to register them with the Office of the Public Guardian. They should be valid. Yes it's too late to do LPA now she lacks capacity.
https://forum.alzheimers.org.uk/thr...hen-the-person-already-has-alzheimers.145559/
https://www.gov.uk/enduring-power-attorney-duties/register-an-enduring-power-of-attorney

Or speak to the OPG direct on
Email
customerservices@publicguardian.gov.uk
Telephone
0300 456 0300

Just to cheer you up, We only have enduring POA for finance for my 90yr old husband which we are in the process of registering - something I thought the solicitor did automatically when it was completed in 2007. Not so. So now we are having to go through another solicitor to make sure everything is ok. There was a date error with one signature, and another attorney had moved twice,. Anyway, the new solicitor said there is now a 4 month delay in registering. And they still want £400 + plus VAT, and the registration fee of £82
I think I need to retrain, then maybe I'll become rich!!

 

[nitram]

We only have enduring POA for finance for my 90yr old husband which we are in the process of registering - something I thought the solicitor did automatically when it was completed in 2007. Not so.

The EPA guidance said the power should not be registered with the OPG until an attorney considered the donor had lost or was loosing capacity.

LPA guidance is different, they should be registered as soon as possible giving time for minor errors to be corrected or a new power to be made whilst the donor had capacity.