LPAs and mental capacity query

[Langdon66]

Apologies for long post, but it’s a complicated situation!
My MIL has been diagnosed with Alzheimers and is currently in the ‘mild’ stage. Her social worker has carried out capacity assessments for both her general mental capacity and her financial capacity. My MIL did not pass the financial capacity assessment, but did pass the general mental capacity assessment. My MIL has registered LPAs in place from 2018 for both finance & property and health and welfare, both set up to only be used once she has lost mental capacity (originally with her husband as her attorney and their respective eldest sons from each of their previous marriages, as replacement attorneys). However, following an investigation in late 2023 by social services (and the OPG) into my MIL’s husband (and possibly his daughter) potentially mismanaging her money (large sums in cash withdrawn from their joint account without my MIL’s knowledge and with no valid explanation by him) and social services’ concerns that she has been subject to both financial abuse and general neglect by him, he voluntarily stood down from both LPAs.
These existing LPAs are basically unworkable as they have the replacement attorneys set up as ‘joint attorneys’ and my MIL’s stepson does not wish to be involved at all in anything to do with them - we cannot understand why he originally agreed to be a replacement attorney as he feels this way, but it is what it is.
An added potential complication is that my MIL’s husband’s daughter recently physically assaulted my MIL (social services are aware but my MIL does not want to report it to the police as she is frightened of repercussions from her husband and his daughter) and social services have advised that we need to get her out of the marital home asap and into residential care - my MIL has stated she is in agreement with this plan as she does not feel safe at home.
My questions are:
1. As my MIL has passed the general mental capacity assessment (but not the financial assessment) can she still apply for new LPAs for both finance & property and health & welfare, (to be immediately valid and usable rather than only when she has lost mental capacity) appointing her new attorneys to act ‘jointly & severally’, i.e. her eldest son (who is currently one of her replacement attorneys) together with his brother, and
2. If she applies for new LPAs do the existing ones remain in place until the new ones are registered? Or does she need to revoke the existing LPAs and get confirmation from the OPG that this has been actioned before she can apply for the new LPAs?
3. If the latter, as she has been deemed to still have general mental capacity, can she set up a General (Ordinary) Power of Attorney to allow her sons to manage her finances whilst waiting for the new LPAs to be registered by the OPG?
Thank you for your help.

 

[SeaSwallow]

Hello @Langdon66 This is quite a complicated issue and I am so sorry for what you are going through.

I really do not know enough to advise you with any degree of certainty. It might be an idea to contact the society helpline for advice. Contact details below. You could also discuss the issue with the OPG.

Dementia Support Line

If you need dementia support, we’re here for you. Get personalised information, support and advice by calling us on 0333 150 3456.

www.alzheimers.org.uk

Hopefully other members will come along with some advice for you.

 

[Veritas]

Apologies for long post, but it’s a complicated situation!
My MIL has been diagnosed with Alzheimers and is currently in the ‘mild’ stage. Her social worker has carried out capacity assessments for both her general mental capacity and her financial capacity. My MIL did not pass the financial capacity assessment, but did pass the general mental capacity assessment. My MIL has registered LPAs in place from 2018 for both finance & property and health and welfare, both set up to only be used once she has lost mental capacity (originally with her husband as her attorney and their respective eldest sons from each of their previous marriages, as replacement attorneys). However, following an investigation in late 2023 by social services (and the OPG) into my MIL’s husband (and possibly his daughter) potentially mismanaging her money (large sums in cash withdrawn from their joint account without my MIL’s knowledge and with no valid explanation by him) and social services’ concerns that she has been subject to both financial abuse and general neglect by him, he voluntarily stood down from both LPAs.
These existing LPAs are basically unworkable as they have the replacement attorneys set up as ‘joint attorneys’ and my MIL’s stepson does not wish to be involved at all in anything to do with them - we cannot understand why he originally agreed to be a replacement attorney as he feels this way, but it is what it is.
An added potential complication is that my MIL’s husband’s daughter recently physically assaulted my MIL (social services are aware but my MIL does not want to report it to the police as she is frightened of repercussions from her husband and his daughter) and social services have advised that we need to get her out of the marital home asap and into residential care - my MIL has stated she is in agreement with this plan as she does not feel safe at home.
My questions are:
1. As my MIL has passed the general mental capacity assessment (but not the financial assessment) can she still apply for new LPAs for both finance & property and health & welfare, (to be immediately valid and usable rather than only when she has lost mental capacity) appointing her new attorneys to act ‘jointly & severally’, i.e. her eldest son (who is currently one of her replacement attorneys) together with his brother, and
2. If she applies for new LPAs do the existing ones remain in place until the new ones are registered? Or does she need to revoke the existing LPAs and get confirmation from the OPG that this has been actioned before she can apply for the new LPAs?
3. If the latter, as she has been deemed to still have general mental capacity, can she set up a General (Ordinary) Power of Attorney to allow her sons to manage her finances whilst waiting for the new LPAs to be registered by the OPG?
Thank you for your help.

I think you need to contact the OPG for advice on how to deal with this. Although it's expensive, getting a solicitor to draw up the LPAs and be your mother's Certificate Provider would make sense in this situation.

I have found the OPG helpline useful, and they have given good advice. The problem is that it takes them so long to actually do anything!

 

[Rayreadynow]

There are only LPA's or Deputyships that can be applied for., EPA are no longer in use. You can apply for a Third Party Mandate directly to the bank but they will probably want MIL to attend at the local bank with you.

The LPA is either revoked by the person who applied for it or it is revoked by the OPG via the Court of Protection.

 

[Alisongs]

Apologies for long post, but it’s a complicated situation!
My MIL has been diagnosed with Alzheimers and is currently in the ‘mild’ stage. Her social worker has carried out capacity assessments for both her general mental capacity and her financial capacity. My MIL did not pass the financial capacity assessment, but did pass the general mental capacity assessment. My MIL has registered LPAs in place from 2018 for both finance & property and health and welfare, both set up to only be used once she has lost mental capacity (originally with her husband as her attorney and their respective eldest sons from each of their previous marriages, as replacement attorneys). However, following an investigation in late 2023 by social services (and the OPG) into my MIL’s husband (and possibly his daughter) potentially mismanaging her money (large sums in cash withdrawn from their joint account without my MIL’s knowledge and with no valid explanation by him) and social services’ concerns that she has been subject to both financial abuse and general neglect by him, he voluntarily stood down from both LPAs.
These existing LPAs are basically unworkable as they have the replacement attorneys set up as ‘joint attorneys’ and my MIL’s stepson does not wish to be involved at all in anything to do with them - we cannot understand why he originally agreed to be a replacement attorney as he feels this way, but it is what it is.
An added potential complication is that my MIL’s husband’s daughter recently physically assaulted my MIL (social services are aware but my MIL does not want to report it to the police as she is frightened of repercussions from her husband and his daughter) and social services have advised that we need to get her out of the marital home asap and into residential care - my MIL has stated she is in agreement with this plan as she does not feel safe at home.
My questions are:
1. As my MIL has passed the general mental capacity assessment (but not the financial assessment) can she still apply for new LPAs for both finance & property and health & welfare, (to be immediately valid and usable rather than only when she has lost mental capacity) appointing her new attorneys to act ‘jointly & severally’, i.e. her eldest son (who is currently one of her replacement attorneys) together with his brother, and
2. If she applies for new LPAs do the existing ones remain in place until the new ones are registered? Or does she need to revoke the existing LPAs and get confirmation from the OPG that this has been actioned before she can apply for the new LPAs?
3. If the latter, as she has been deemed to still have general mental capacity, can she set up a General (Ordinary) Power of Attorney to allow her sons to manage her finances whilst waiting for the new LPAs to be registered by the OPG?
Thank you for your help.

Very surprised a social worker could would or should carry out financial capacity assessment. That should be up to the bank or other qualified financial advisor.
Legal capacity is to area of expertise of a solicitor or similar.
Medical capacity is dealt by the medical profession.
Mental capacity is dealt by mental health practitioners.
I am new at all this just getting to grips with the vagaries of social services, but I understand that capacity is dealt on a per occasion basis by the relevant practitioner.
I've engaged a specialist solicitor, as hospital and social services are trying to put my husband in a nursing home because his insulin and diabetic needs are not being managed by the community nurses....... The community nurses also cover nursing homes...

 

[My Mum's Daughter]

Very surprised a social worker could would or should carry out financial capacity assessment. That should be up to the bank or other qualified financial advisor.
Legal capacity is to area of expertise of a solicitor or similar.
Medical capacity is dealt by the medical profession.
Mental capacity is dealt by mental health practitioners.
I am new at all this just getting to grips with the vagaries of social services, but I understand that capacity is dealt on a per occasion basis by the relevant practitioner.
I've engaged a specialist solicitor, as hospital and social services are trying to put my husband in a nursing home because his insulin and diabetic needs are not being managed by the community nurses....... The community nurses also cover nursing homes...

A capacity assessment is usually done on all areas and would be completed by a social worker or a doctor. In some cases such as the one mentioned above, a PWD can be found to have capacity in some areas but not in others or may be classed as limited capacity.

Re your query on nurses; a community nurse would if need be, visit a PWD in a care home however, to be classed as a nursing home, there needs to be a qualified nurse on site 24/7.

 

[jugglingmum]

The community nurses also cover nursing homes...

This isn't correct, a nursing home has on site nurses 24/7 and wouldn't use community nurses. Residential homes don't have on site nurses and do use community nurses.

My mum was in a residential EMI home and had to use community nurses, but if moved to the EMI nursing home next door would have used the nursing home nurses.

As for capacity assessments social workers are legally qualified to assess all areas of capacity and have a lot of authority in this area.

 

[SAP]

Very surprised a social worker could would or should carry out financial capacity assessment. That should be up to the bank or other qualified financial advisor.
Legal capacity is to area of expertise of a solicitor or similar.
Medical capacity is dealt by the medical profession.
Mental capacity is dealt by mental health practitioners.

Both of my mums capacity assessments were done by social workers.
The financial assessment was done by the LA finance department.
This link explains it all . See pg 4 about who can do a mental capacity assessment as set out in the Mental Capacity Act 2005.

https://www.cqc.org.uk/sites/default/files/documents/rp_poc1b2b_100563_20111223_v4_00_guidance_for_providers_mca_for_external_publication.pdf

 

[Alisongs]

This isn't correct, a nursing home has on site nurses 24/7 and wouldn't use community nurses. Residential homes don't have on site nurses and do use community nurses.

My mum was in a residential EMI home and had to use community nurses, but if moved to the EMI nursing home next door would have used the nursing home nurses.

As for capacity assessments social workers are legally qualified to assess all areas of capacity and have a lot of authority in this area.

Not quite what seems to be happening locally, but I have discovered a lot of things recently that don't seem to happen as they should. Thank you

 

[Alisongs]

Both of my mums capacity assessments were done by social workers.
The financial assessment was done by the LA finance department.
This link explains it all . See pg 4 about who can do a mental capacity assessment as set out in the Mental Capacity Act 2005.

https://www.cqc.org.uk/sites/default/files/documents/rp_poc1b2b_100563_20111223_v4_00_guidance_for_providers_mca_for_external_publication.pdf

Thank you. Round here it's often a case of doing it differently!

 

[SAP]

Thank you. Round here it's often a case of doing it differently!

It’s a good job you have a solicitor then because the MCA is a legal requirement. It is ridiculous that carers are expected to not only know the law but uphold it when professionals don’t . Life is difficult enough and dementia is traumatic enough with out having to manage further responsibility.

 

[SAP]

@Langdon66 ,as others have said this is quite complex and you need good legal advice regarding your MILs situation. Please keep us posted if you can.

 

[Tabitha2]

I really don't see how social workers, solicitors, financial departments., can possible judge whether someone has capacity or not. They simply don't have the in-depth training and knowledge of dementia to do so. Even medical staff and, indeed, dementia specialists have difficulty in this area, since capacity can vary hugely from hour to hour and day to day. My partner, for example, was sometimes able to have completely normal conversations in the morning, with absolute recall and memory but by evening he had forgotten how to use the TV remote. You could never be sure what each day (or hour) would bring.

I always involved him in any discussions which concerned him, and then tried to make my own judgement of whether, at that particular time, he had really understood what was going on. I probably knew him better than anyone, including medical specialists, since I was with him 24/7, and not just an hour on a particular day. I would, and did, therefore fight long and hard for whatever I had decided was best for him. It may not have been the right decision, who knows, but better than some complete stranger doing what? Going with a gut feeling at the time - unless the PWD is clearly seriously affected, which would be obvious to anyone on the street, they can't really go on anything else. I had no POA for him, but must admit that the medical professionals and SS staff I came across included me in all areas, although I know this is not always the case for others.

 

[Langdon66]

I think you need to contact the OPG for advice on how to deal with this. Although it's expensive, getting a solicitor to draw up the LPAs and be your mother's Certificate Provider would make sense in this situation.

I have found the OPG helpline useful, and they have given good advice. The problem is that it takes them so long to actually do anything!

Unfortunately the OPG refused to discuss anything with my MIL’s son who is one of her replacement attorneys so we have not found them to be very helpful at all, particularly in respect of the suspected financial abuse of my MIL.

 

[Langdon66]

There are only LPA's or Deputyships that can be applied for., EPA are no longer in use. You can apply for a Third Party Mandate directly to the bank but they will probably want MIL to attend at the local bank with you.

The LPA is either revoked by the person who applied for it or it is revoked by the OPG via the Court of Protection.

We have since consulted a solicitor and an Ordinary Power of Attorney is still very much a thing and anyone who has mental capacity can create an OPA and once it has been signed by the donor and witnessed, it is usable immediately. It does not have to be registered with the OPG or any other govt body. An OPA can only be used in respect of finances & property ( not health & welfare) and cannot be used once the donor has lost mental capacity. It can be put in place to enable an attorney to assist a donor with financial matters on a temporary basis whilst an LPA application is being processed & registered by the OPG.
In order to set up an OPA, the donor must be considered to have ‘testamentary capacity’ at the time of its creation and mental capacity during the period it is used. Note: Testamentary capacity primarily relates to a person’s capacity to make a legal Will, but can also be applicable to a donor’s capability to create LPAs.

 

[Rayreadynow]

OPA is outside the OPG and is only temporary? I suppose third party mandate is very similar and wont cost anything as you don't need a solicitor.