Mental Capacity but unwilling?

[NellieP]

Hello,

My sister and I would like to get an LPAs sorted for my mother. Sadly family issues are making this complicated.
1. Her partner of many years (but is not married to) is resistant to do it. We are not sure why but he doesn't seem to trust us even though we have explained that he can have power of attorney. We have explained that it could be a very tricky situation if we do not get LPA but he doesn't think it's needed.
2. However he already has all her banks cards and does all the banking/bill paying.
3. He will normally speak for her if there is a decision to be made ( he is a very strong character). He has said that he can do all the thinking and remembering for her! She will defer to all decisions and has always joked that she finds it difficult to make a decision and would prefer someone else to do so.
4. I understand that the 'certificate provider' needs to speak to the person alone. However, I'm not sure how she will respond if she is on her own as she has become so dependant on her partner. i.e. if she is asked if she understands why she is there and what her preferences are regarding the LPA by a solicitor or certificate provider she is likely to respond by saying that they should ask someone else!

Therefore my question is this: what happens if someone potentially has capacity but refuses to state what their wishes or preferences would be and constantly defers to someone else?

If we can't get her partner to agree to organise an LPA and she won't do anything without his support then what happens next? What situations may force involvement of courts or capacity assessments etc?
Thanks in advance

 

[margherita]

Hi @NellieP ,
I'm afraid I can't be helpful, but your situation reminds me of mine.
Here in Italy things might work differently , but the problem to solve is the same.
My OH never wrote an LPA or something similar when he would have been able to , because he was (and is) too selfish, stingy and suspicious . Even though he hasn't been legally deprived of capacity, I think I can't make him sign anything . So I have recently applied to the Court of Protection. to have a deputy appointed. The judge is likely to appoint me as OH's deputy, but I won't accept . In my situation there isn't a " resistant" partner "with strong character", but an invisible stepson I don't trust at all.
Anyway, the whole procedure is going to take long partly because of the delays connected to the epidemic, partly because of the huge amount of bureaucracy involved . Just think I have to notify my request to all of OH's next of kin, up to third removed family members.

Hope someone else on here can give you advice on what to do

 

[NellieP]

Hi @NellieP ,
I'm afraid I can't be helpful, but your situation reminds me of mine.
Here in Italy things might work differently , but the problem to solve is the same.
My OH never wrote an LPA or something similar when he would have been able to , because he was (and is) too selfish, stingy and suspicious . Even though he hasn't been legally deprived of capacity, I think I can't make him sign anything . So I have recently applied to the Court of Protection. to have a deputy appointed. The judge is likely to appoint me as OH's deputy, but I won't accept . In my situation there isn't a " resistant" partner "with strong character", but an invisible stepson I don't trust at all.
Anyway, the whole procedure is going to take long partly because of the delays connected to the epidemic, partly because of the huge amount of bureaucracy involved . Just think I have to notify my request to all of OH's next of kin, up to third removed family members.

Hope someone else on here can give you advice on what to do

Hi, thanks for your message.
Families really do make a difficult situation even more tricky. I hope you manage to get some resolution.

 

[Bod]

2. If the banks get wind of this they should freeze the accounts.
4. This could be construed as lack of capacity, meaning that Deputyship would would be the only answer.

Bod

 

[Shedrech]

hi @NellieP
your mother's partner needs to understand that it is illegal to use someone else's bank cards even if he thinks he has her permission ... as Bod says, cards are issued for use by the named person only and the bank can freeze an account and take further action if they discover the account holder has shared their card and PIN
he may be your mother's partner but no-one else has the legal right to manage an adult's finances ... that's why the LPA is so important; it covers both the donor and Attorneys .... maybe when this is clear to him he will stop making it difficult to make this sensible arrangement
given his need to control, I suggest you, your sister and him are Attorneys to act jointly and severally ... he can then act by himself day to day, but you and your sister can step up if you believe he is not acting in your mum's best interests
if your mother won't/doesn't set up LPAs, then ultimately someone will have to apply for Deputyship which will cost your mother more and the Deputy has to provide an accurate annual account ... would the partner want to do this? ... if LPAs are in place Attorneys pretty much act without supervision, though they can be called to account at any time

 

[MartinWL]

@Bod is quite right, your mother is not allowed to give passwords, PINs, etc to a third party by her contract with the bank and if they find out they will intervene. You need to get mum on her own for a decent amount of time to discuss this and you will need to ascertain whether she fully understands what a POA is and the pros and cons of making one or not doing so.

If she does fully understand them she is entitled to choose to let her partner decide everything in her life. If not she doesn't have capacity to do so at all. If she has capacity she will have to choose who the attorney or attorneys will be and I don't think an appointment would be valid if made under some sort of pressure or coercion. If she goes ahead and makes an LPA with the partner as the only attorney and you suspect in wasn't her free choice with capacity, you should contact the office of the Public Guardian.

This really is difficult because if she has mental capacity you can't interfere. If she doesn't have capacity your only route is to apply for deputyship and that might be in some ways the best thing as it will avoid having to confront the partner.

I don't envy you this difficult situation, I hope you have lots of diplomatic skills!

 

[NellieP]

Hi @Bod and @MartinWL
Many thanks for your thoughts and suggestions.
My sister this week managed to get them to an appointment with their solicitor, which felt like progress.

However, the solicitor seemed to give advice different to everything else we have heard including what you said.

The solicitor said that the health and welfare LPA doesn't really matter as the family will be consulted anyway. And Financial LPA is useful to have but not to worry as the bank would happily transfer control of the bank account no questions asked'!! The solicitor did not ask to speak to my mum on her own and directed the conversation to her partner.

It now feels like one step forward and two steps back. We are now not sure if they will want to go ahead with it as the solicitor will charge £900 to do it.

We could encourage them to fill in the forms themselves, but not sure about the certificate witness etc?

Thanks again for your thoughts and suggestions.

 

[Shedrech]

hi @NellieP
I really do not understand what the solicitor has said

please call the Support Helpline as it may help to speak with one of the advisors in real time

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

everything about LPAs here

Make, register or end a lasting power of attorney

How to make a lasting power of attorney (LPA): starting an application online, choosing an attorney, certifying a copy, changing an LPA.

www.gov.uk

 

[jaymor]

The bank will not happily transfer control no questions asked. They will only happily do so once the have the appropriate LPA registered with them.

 

[NellieP]

hi @NellieP
I really do not understand what the solicitor has said

please call the Support Helpline as it may help to speak with one of the advisors in real time

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

everything about LPAs here

Make, register or end a lasting power of attorney

How to make a lasting power of attorney (LPA): starting an application online, choosing an attorney, certifying a copy, changing an LPA.

www.gov.uk

Thank you @Shedrech you echo my confusion. I will ring the support line as you suggest.

 

[NellieP]

The bank will not happily transfer control no questions asked. They will only happily do so once the have the appropriate LPA registered with them.

Thanks @jaymor, for confirming what we understood to be the situation. We are so frustrated that they see to have had bad advice.

 

[silkiest]

Hi @NellieP solicitors clearly do not understand the NHS and confidentiality. Gp's will not even say if a person has been to see them let alone discuss treatment plans without a POA for Health. All hospital and GP letters now come to me for my mum as she totally misunderstood one letter and missed an appointment. Mum can make rational decisions at appointments but within hours has forgotten what has been advised and planned. Without POA health I would be floundering and unable to get her the health care she needs including treatment for skin cancer and district nurse visits for eye drops that mum believes she can do.

 

[MartinWL]

The bank will not happily transfer control no questions asked. They will only happily do so once the have the appropriate LPA registered with them.

Like the others, I agree, banks will not lift a finger to help unless you have a registered PO A.

Regarding the health POA you might get consulted anyway, yes. But what you think can be disregarded. With a POA you are the decision maker.