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Power of attorney complications

Fl0J0

Registered User
Mar 7, 2022
12
0
Hi everyone. My mum has fairly recently been diagnosed with a rare form of dementia that seems to have accelerated. A little while ago, my dad got power of attorney but didn't realise it had to be registered. My parents are moving house because they need to be somewhere more suitable for my mum as she gets worse. However, my dad is now facing an issue with his unregistered power of attorney - essentially, the solicitors are going through that process now, but need both my mum and dad to go in to sort it out. Unfortunately, this means that my mum, who doesn't really realise she has dementia, will have to face that conversation all over again which will really upset her. My dad also fears that she'll object to moving at that point, even though the move is specifically to help her and that they won't therefore allow it to happen. Can anyone offer any advice please?
 

Bod

Registered User
Aug 30, 2013
1,543
0
If the POA is unregistered then it is essentially useless.
Is the current house owned in both names?
If only in his, then he can sell without mums consent.
If persuasion on mum doesn't work (most likely) then the POA will have to be registered for both health and finance. When that comes through, a "Trustee" may have to appointed to oversee mothers interests. (Father cannot do this as the move is in both interests.)
However all of this will take a lot of time, during which mother will not improve.

Bod
 

MartinWL

Registered User
Jun 12, 2020
2,029
0
65
London
If I have this right the POA was signed by your mum a while ago, and witnessed ( and a certifier has signed) but not sent to the office of the Public Guardian for registration. I don't see why another meeting with the solicitor in his office is needed.

Perhaps it has not been signed and certified and witnessed? If so the solicitor would want a meeting.

If the change of address is the issue can it not be registered before the move?

If you do need to meet the solicitor you could ask for a home visit.
 

Fl0J0

Registered User
Mar 7, 2022
12
0
If the POA is unregistered then it is essentially useless.
Is the current house owned in both names?
If only in his, then he can sell without mums consent.
If persuasion on mum doesn't work (most likely) then the POA will have to be registered for both health and finance. When that comes through, a "Trustee" may have to appointed to oversee mothers interests. (Father cannot do this as the move is in both interests.)
However all of this will take a lot of time, during which mother will not improve.

Bod
Thank you - this is what I suspected. The house is in both names. The EPA was signed in 2006 but never registered, and LPAs have come into action since then, so I wondered if this might be the reason for the meeting. The time is one of the issues, as the house sale/purchase is going through now!
 

Fl0J0

Registered User
Mar 7, 2022
12
0
If I have this right the POA was signed by your mum a while ago, and witnessed ( and a certifier has signed) but not sent to the office of the Public Guardian for registration. I don't see why another meeting with the solicitor in his office is needed.

Perhaps it has not been signed and certified and witnessed? If so the solicitor would want a meeting.

If the change of address is the issue can it not be registered before the move?

If you do need to meet the solicitor you could ask for a home visit.
Thank you - I'm checking with dad on the witness and certifier as you're right, this might be the reason. Otherwise, I'll ask him to ask the solicitor why a meeting is necessary if all the paperwork is essentially in place. It's not my mum going to meet the solicitor that's an issue, it's that, when having the conversation about why they're meeting, mum could get really upset and essentially kibosh the whole thing!
 

canary

Registered User
Feb 25, 2014
18,448
0
South coast
I may be wrong here, but I seem to remember that the old EPA could only be registered once capacity was lost (unlike POAs now which can be registered immediately). If Im right (and Im sure someone will say if Im wrong) then the solicitor will need to see her again to find out whether she has lost capacity.
 

Wildflowerlady

Registered User
Sep 30, 2019
939
0
Only EPAs made and signed before October 1, 2007 can still be used. After that date donors had to make a lasting power of attorney (LPA) instead. As the paperwork was done in 2006 provided it was witnessed and signed it should be valid to register with the OPG now.
 

Wildflowerlady

Registered User
Sep 30, 2019
939
0
I may be wrong here, but I seem to remember that the old EPA could only be registered once capacity was lost (unlike POAs now which can be registered immediately). If Im right (and Im sure someone will say if Im wrong) then the solicitor will need to see her again to find out whether she has lost capacity.
You must register the enduring power of attorney (EPA) as soon as the donor starts to lose mental capacity. I have just looked on the Government site and yes @canary it looks like capacity has to considered lost before registering a EPA unlike a LPA the documents that replaced it.
 

Shedrech

Volunteer Moderator
Dec 15, 2012
12,147
0
Yorkshire
Hi @Fl0J0
Are there 2 separate issues ... ie 1) your parents are moving house and both need to sign documents ... 2) LPAs have been completed but not actually sent off to be registered

If your dad and the solicitor do not consider that your mum no longer has capacity to make decisions then the house sale can simply go ahead as 'normal', no-one need mention dementia

if your mum would be upset by discussion of the dementia, maybe leave off discussing the LPAs until the move is sorted out, postpone the meeting with the solicitor ... yes, there would be more of a delay in registering with the OPG but the move would be complete with less upset to your mum
 

Fl0J0

Registered User
Mar 7, 2022
12
0
I may be wrong here, but I seem to remember that the old EPA could only be registered once capacity was lost (unlike POAs now which can be registered immediately). If Im right (and Im sure someone will say if Im wrong) then the solicitor will need to see her again to find out whether she has lost capacity.
Thank you for this helpful info, I'll look into this further.
 

Fl0J0

Registered User
Mar 7, 2022
12
0
You must register the enduring power of attorney (EPA) as soon as the donor starts to lose mental capacity. I have just looked on the Government site and yes @canary it looks like capacity has to considered lost before registering a EPA unlike a LPA the documents that replaced it.
Thank you for this, I'll go ahead and look into this further - I think I also need to get my dad to establish what the meeting is actually for, so that it can be avoided if possible.
 

Fl0J0

Registered User
Mar 7, 2022
12
0
Hi @Fl0J0
Are there 2 separate issues ... ie 1) your parents are moving house and both need to sign documents ... 2) LPAs have been completed but not actually sent off to be registered

If your dad and the solicitor do not consider that your mum no longer has capacity to make decisions then the house sale can simply go ahead as 'normal', no-one need mention dementia

if your mum would be upset by discussion of the dementia, maybe leave off discussing the LPAs until the move is sorted out, postpone the meeting with the solicitor ... yes, there would be more of a delay in registering with the OPG but the move would be complete with less upset to your mum
To be honest, I'm not sure anymore - my dad is always a bit unclear about what's happened and ends up getting stressed about some things which aren't as bad as he thought. This is helpful, thank you. I think I need to pop up for a visit so I can take a look at the paperwork and figure out what's going on.
 

MartinWL

Registered User
Jun 12, 2020
2,029
0
65
London
You can still use the original EPA if your mother has lost capacity, as others have said. I did this. I did not involve a solicitor in the process but it was necessary to go through quite a rigmarole of notification of relatives, some of whom had had no contact for many years! They have the opportunity to object although none did. Because my mother had no living siblings her nephews and neices all had to be told and there were a lot of them. I completely forgot about one cousin who had left home never to be heard of again when he was about 20, over 50 years ago. However although there is some paperwork to get right it was perfectly doable so this could be the solution if there is something wrong with the more recent Lasting Power of Attorney, e.g. not fully signed.

I never asked anyone to confirm that she had lost capacity, and nobody ever questioned this. In any case capacity is decision-specific so it could only be one important decision that she was incapable of making that would justify registration of the EPA. From what you have told us it looks clear that she has lost capacity as you imply that she does not understand her diagnosis. The first requirement to have capacity is to understand information given in relation to the decision and the diagnosis will be relevant to many important decisions. She does not have to be beyond choosing what to have for pudding to have lost capacity for other, more important decisions.

My inclination would be, if the LPA is not fully complete, to tear it up and register the EPA if you think your mum has lost cpacity. Incidentally

By the way the Health LPA is another matter - do not tear that up. Register it if you can.
 

Jessbow

Registered User
Mar 1, 2013
4,219
0
Midlands
Another potential blip- I dont think you father can respresent both his AND your mother in a house sale. Someone will correct me if I am wrong
 

Scarlet Lady

Registered User
Apr 6, 2021
213
0
I am wondering if this situation is unnecessarily complicated. If your mum is acquiescent to the house move going ahead, there seems no reason why you would need to have the EPA registered at this point in time. It’s perfectly possible to use the EPA without registration (I did this for over five years with my aunt and had no problems whatsoever). If it’s simply a visit to the solicitor to assess capacity in order to register, would it be possible to present both the appointment and the EPA document to your mum as just routine things relating to the house move. Dementia doesn’t need to be mentioned at all. I do think it would be a good idea to have a look at all the paperwork first so you know exactly what’s going on.
 

MartinWL

Registered User
Jun 12, 2020
2,029
0
65
London
Another potential blip- I dont think you father can respresent both his AND your mother in a house sale. Someone will correct me if I am wrong
I think that's right, an independent advocate has to be found to represent her interests in this situation.
 

MartinWL

Registered User
Jun 12, 2020
2,029
0
65
London
To Reiterate my earlier post you don't need a solicitor to register an EPA and there is nothing in the Act that says loss of capacity has to be verified by some professional or other. I decided that myself, nobody argued.
 

Wildflowerlady

Registered User
Sep 30, 2019
939
0
Another potential blip- I dont think you father can respresent both his AND your mother in a house sale. Someone will correct me if I am wrong
I am an attorney on my partners LPA we own our home as Tenants in common unequal shares. I was aware that should the home need to be sold in the event that partner becomes unable to do that himself that I would not be able to act on my partners behalf for his share of the home. My daughter as his other attorney could act on his behalf she has no financial interest in the home. Partner has a replacement attorney should they be needed if I should die first and my daughter inherits my share.
 

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