Power of Attorney/Charges for Home Care

Discussion in 'ARCHIVE FORUM: Support discussions' started by Kath TN, Nov 19, 2006.

  1. Kath TN

    Kath TN Registered User

    May 5, 2006
    32
    Can anybody offer me some advice please. A couple of weeks ago Dad agreed to grant POA to me and my sister. I sought advice from the Guardianship Office, downloaded and completed the forms but then Dad changed his mind and refused to sign it. No problem - it had to be his decision.

    Last week he asked me to read a letter that he had received from a solicitor. After changing his mind about signing he had sought advice from the solicitor. Following the discussion the solicitor has prepared a POA naming me and my sister. The POA has two conditions, first that my sister and I are not informed about the POA and secondly that it only comes into force if/when Dad loses mental capacity. The letter to Dad asked him to go to the solicitors to sign the POA and pay a bill for £68.

    My question is (if anybody can answer it) if my sister and I aren't supposed to know about the POA then we can't sign it so is it still an effective document?

    I have also pondered about if/when Dad loses mental capacity how will the solicitor know? If Dad hadn't shown me the letter how would me or my sister have known that the POA existed?

    I am confused and am inclined to advise Dad from paying the bill until I am satisfied that the POA that the solicitor has prepared is actually an effective document.

    Sorry to be rambiling on but this has got me stumped.

    Dad went into respite care two weeks ago for four weeks. It was a last minute arrangement and his domiciliary care was cancelled the day before he went into respite. I have since received bills for the full amount as if Dad had been at home - the domiciliary care company say that we have to pay full costs because we didn't give two weeks notice. Has anybody else encountered this situation.

    I'd be grateful if anybody can offer advice on either of these two issues.

    Kath
     
  2. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    #2 jenniferpa, Nov 19, 2006
    Last edited: Nov 19, 2006
    Well off the top of my head - this solicitor is a moron (and I say that with all due respect). A power of attorney (not an enduring power of attorney) becomes invalid at the point the grantor becomes mentally incapacitated. How this "professional" can think this is going to work is beyond me.

    I'll search out the appropriate references and repost

    Jennifer

    Edited to add
    look here
    http://www.adviceguide.org.uk/n6m/index/family_parent/family/managing_financial_affairs.htm

    Relevant portion
    "You should not use an ordinary power of attorney if you have been diagnosed as having, or if you think that you may develop, any mental illness or degenerative disease that can lead to mental incapacity. This is because an ordinary power of attorney automatically comes to an end if you lose your mental capacity."
     
  3. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    And here's another one with the relevant acts

    An ordinary power of attorney, whether granted under the Trustee Act 1925 (TA1925) or as a short form power under the Powers or attorney Act 1971, ceases to have effect when the donor of the power loses his mental capacity. This means that the attorney appointed by the power is no longer able to act at just the moment when the power is most needed.


    Regarding the second issue (I was so incensed I failed to read your whole post) I suppose it does depend on your contract, but with 2 spearate care groups, I have fouind this not to be enforced. Doesn't help you much - you'd have to see the precise language.

    Jennifer
     
  4. Kath TN

    Kath TN Registered User

    May 5, 2006
    32
    Thank you

    Thanks Jennifer - I will contact the solicitor tomorrow. On the Home Care charges issue - when the carer made the last visit before Dad went into respite she took Dad's care record folder with her - the contract was inside the folder! I'm going to cantact them tomorrow to ask for a copy of the contract that Dad and I signed.

    Thanks for you advice - what a wonderful place this is!!:)
     
  5. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    #5 jenniferpa, Nov 19, 2006
    Last edited: Nov 19, 2006
    Well they're not supposed to do that (take the care folder with them). That's supposed to stay with the client, so they've failed in their responsibilites right there.

    Incdentally, looking back at your original post, are you certain that the solicitor hasn't prepared an EPA? I can't believe that they would make such an elementary error (well I can, but it's hard).

    Jennifer
     
  6. Kath TN

    Kath TN Registered User

    May 5, 2006
    32
    Poa

    Hi Jennifer - thanks for your replies. The letter from the solicitor does say POA but after pondering on what you said last night I did wonder if it is an EPA - I tried phoning today to check but couldn't speak to the solicitor. If it as an EPA do you think it would still stand if my sister and I haven't been asked to sign it?

    I've also asked the Dom Care company if I can see the contract that dad and I signed in April - I didn't know they were supposed to leave his care file with him - I'll ask for that back too.

    What a wonderful source of information you are - thank you.
     
  7. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    Ok, I've checked the Law Society's site (aka the horse's mouth) and this is what they say about executing an EPA (i.e. signing) bolding is mine.

    Extract from Enduring powers of attorney – guidelines for solicitors
    Revised September 1999
    http://www.lawsociety.org.uk/documents/downloads/Profethics_EPA.pdf

    "An EPA must be executed by both the donor and the attorney(s). The donor must execute Part B of the prescribed form. The attorney must execute Part C. Where more than one attorney is appointed, each of them must complete a separate Part C, the additional sheets having been added and secured to the EPA document beforehand. One Part C cannot be "shared" by more than one attorney.

    The donor must execute the EPA before the attorney(s), because the attorney(s) cannot accept a power which has not yet been conferred. However, execution by the donor and attorney(s) need not take place simultaneously. There is no reason why execution by the attorney(s) should not occur at a later date, provided it happens before the donor loses capacity. It is often advisable for the attorney(s) to sign as soon as possible after the donor.

    Execution by the donor and the attorney(s) must take place in the presence of a witness, but not necessarily the same witness, who must sign Part B or Part C of the prescribed form, as the case may be, and give his or her full name and address.
    There are various restrictions as to who can act as a witness, and in particular:
    • the donor and attorney must not witness each other's signature;
    • one attorney cannot witness the signature of another attorney;
    • the marginal notes to Part B of the prescribed form warn that it is not advisable for the donor's spouse to witness his or her signature - this is because of the rules of evidence relating to compellability; and
    • at common law, a blind person cannot witness another person's signature."

    and further down the page

    "Although the Enduring Powers of Attorney (Prescribed Form) Regulations 1990 do not expressly state that, where someone executes the EPA at the direction of the donor or attorney, he or she must do so in the presence of the donor or attorney, it is essential that the power be executed in their presence in order to comply with section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989. "

    So, once you've ploughed through that, the answer is NO - if you and you sister do not sign the EPA (if EPA it is) until after your father has lost mental capacity, it has not been executed and is therefore not valid and it would not be possible to register it.

    Honestly, you've got this solicitor coming and going - if it's not an EPA it's no good if your father loses mental capacity, and if it is an EPA it's no good if you and your sister as attorneys haven't signed it and your father loses mental capacity.

    Jennifer
     
  8. Helena

    Helena Registered User

    May 24, 2006
    715
    I would simply wait for your Father to have an "ameneable day " Alzheimers and VD sufferers have good and bad days

    I am siure on a good day the EPA forms can be signed with a minimum of fuss

    Fill in everything you can and simply ask him to sighn it in front of a witness / friend
     
  9. Kath TN

    Kath TN Registered User

    May 5, 2006
    32
    Once again thank you - solicitor hasn't returned my calls yet - perhaps I've caught him on the hop. I am going to tell dad to refuse to pay his bill.

    On the issue of the Dom Care Co charging in full for cancelled visits for two weeks - they can't trace a copy of the contract that Dad signed so I'm refusing to pay them too until the contract materialises - if the contract includes the condition in the terms and conditions I'll pay it no problem but I still thinks it's a bit over the top!!

    I do worry about people of dad's age and condition who haven't got any body to sort things out for them - how on earth do they manage??
     
  10. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    Good for you - they've probably lost it, perhaps along with his care folder. You know it's possible that solicitor never will call you back. If he has a professional relationship with anyone it's your father, and as such shouldn't really discuss your father's business with you.

    Jennifer
     
  11. ludwig

    ludwig Registered User

    Feb 8, 2006
    28
    Sorry to chuck a spanner in the works but I dont see that an unregistered EPA becomes invalid when the donor loses mental capacity. Who decides and who enforces?

    Certainly you ought to register the EPA when this occurs (so the rules say) but frankly why bother unless you have to or there's some sort of family hassle?

    I agree that the solicitor's a plonker however!

    Keep smiling
    Ludwig
     
  12. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    I think you must have misread the post. Not an unregistered EPA - an unexecuted EPA. Obviously, most EPA's aren't registered until the donor loses mental capacity. However, the execution (i.e. signing) has to be done before the donor loses capacity, and if it's not signed before that point it isn't valid.

    Jennifer
     
  13. Kath TN

    Kath TN Registered User

    May 5, 2006
    32
    Dear All - thank you so much for your input. I have contacted the Helpline and have been advised that the document prepared by the solicitor is not worth the paper it's written on let alone the fee that the solicitor is going to charge dad. I've still not had a return phone call from the solicitor so I've decided to ignore it for the time being. If the solicitor does get in touch again I will discuss it further with him before making a decision about contacting the Law Society with a view to making a complaint.

    Once again thanks!;)
     
  14. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    If you can bring yourself to do it (and I realise that you've got a lot on your plate at the moment) I really would seriously think about making that complaint - heaven knows how many other vulnerable elderly people he's conned in this fashion. It's a very nasty trick - if the children (or whatever) find out that a POA exists after the person in question has lost their faculties, there's not a thing they can really do about it as a POA wouldn't have any validity in that situation anyway. Not a enough of a fee to really send up red flags, but a nice little money spinner. Have you got any further re getting your rather to agree to a real EPA?

    Jennifer
     
  15. Kelley

    Kelley Registered User

    Nov 30, 2006
    1
    Bexleyheath, Kent
    #15 Kelley, Nov 30, 2006
    Last edited by a moderator: Nov 30, 2006
    Power of Attorney

    Firstly, as mentioned before your father needs an Enduring Power of Attorney. you can print the forms for this yourself and your father can nominate who he wants to act for him. You don't actually need a solicitor to do this.This will enable you to operate his finances etc. whenever he gives you the document i.e. you can go to the bank for him and draw money if you have the EPA with you. On your return you just give it back to him. Alternatively he could set it up to be for mental incapacity only. When your father becomes mentally incapacitated you must then register this EPA with the Court of Protection. Some other issues you need to consider are costs of care homes. Is his home protected against care costs? You don't mention if your mother is still alive. Does he have an appropriate Will. If he is a homeowner - Is your inheritance protected? [further sentences deleted by moderator]
     
  16. Kath TN

    Kath TN Registered User

    May 5, 2006
    32
    Since posting my last reply I have had a change of heart and have actually written to the Law Society to register a complaint - not had a reply yet but feel tons better - I've stood up for my dad - tables are turned he would have done it for me! :)

    I've not broached the subject of a genuine EPA yet - he's just settling quite well into the rest home and I don't want to rock the boat - cowardly I know but I'll bring the subject up again shortly.;)
     
  17. Kath TN

    Kath TN Registered User

    May 5, 2006
    32
    Hi Kelley - I needed to think about answering the points that you raised - specifically care home costs etc. Dad's savings are above the threshold so he is paying for his own care in full. We have been informed by Social Services that when his savings start to approach the threshold we will have to sell his home to pay for his care and that when the proceeds from the sale of his home reach the threshold that we can then apply for local authority grant. My mum died last year and so it's not a problem selling Dad's home in that respect - the only thing is is that my brother died last year leaving three children under the age of 18 and I know this sounds really selfish but I would like them to get an inheritance from Dad rather than using all his hard earned cash on care home fees. But Dad is still in need of care and that has got to be the ultimate outcome. What emotions your comments have invoked - made me put into words what I've been worrying about for a long time and has helped me to focus. Thank you:)
     
  18. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,439
    3 Cheers for Kath! I know it's a hassle complaining, particularly when it's probably going to do no good for you and yours, but I think it's a very worthwhile thing to do.

    Jennifer
     
  19. Helena

    Helena Registered User

    May 24, 2006
    715
    Kath

    Its vital you look at www.************

    Its unlawful for someone who has an illness / health condition which means they cant look after themselves and are a danger to themselves or others to be charged for care

    They are fully entitled to Continuing Care

    Do not be fobbed off .........look at the website ......contact the people who are involved they will all help you

    Had my Mother not died I too would have been fighting to keep her home etc
     

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