Power Of Attorney info

Discussion in 'Legal and financial issues' started by MillyP, Mar 29, 2007.

  1. MillyP

    MillyP Registered User

    Jan 5, 2007
    108
    London
    My Mum has been advised to see a Solicitor to organise power of attorney seeing as my Dad is very bad now with demetia...is this a good idea and why does she need to do this? Any advice would be greatly appreciated.:)
     
  2. #2 Brianj, Mar 29, 2007
    Last edited: Mar 29, 2007
    PA and EPA

    Hi MillyP

    It is very important to have power of attorney and there has been discussion on this site concerning this. Look at this thread http://www.alzheimers.org.uk/talkingpoint/discuss/showthread.php?t=5986.

    Someone (forgotten who) may come in and mention Lasting power of attorney which is linked to the new Mental Capacity Act which comes into full operation October 2007 I think but partially this April 1.

    Here is one link specifically on what an enduring power of attorney is, how to do it and what you can do. You can save it on your computer and is a pdf file http://www.guardianship.gov.uk/downloads/epa.pdf

    Best wishes

    Brianj
     
  3. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,438
    Milly: this is the appropriate fact sheet

    http://www.alzheimers.org.uk/After_diagnosis/Sorting_out_your_money/info_epa.htm

    The problem you might encounter is "is your father still capable enough to make this"? An enduring power of attorney (soon to become a lasting power of attorney) is a power of attorney that does not lose validity once your fatehr loses capacity, but to make one, you need to have capacity. You do not, however, need a solicitor, as the appropriate forms are on the guardianship website.
     
  4. Natashalou

    Natashalou Registered User

    Mar 22, 2007
    426
    london
    a tip!

    having recently registered my mothers already longstanding EPA, a tip for anyone IMO, is, if possible, get several certified copies. We were only given one when my mother first made it, but now I have actually taken over her affairs en masse, everyone needs to see the certified copy, NOT a photocopy of it.
    the trouble is because organisations hold on to it for weks, only one thing is being dealt with at a time!
    First the solicitor had it for weeks to complete on her bunglaow as the date kept changing, then her bank had it for about three weeks to issue me with a cheque book for her account, and now its with the DWP who have had it for at least a month!
    I do of course have the origonal for emergencies but the advice was never to let this go to anyone.
     
  5. sue38

    sue38 Registered User

    Mar 6, 2007
    10,854
    Wigan, Lancs
  6. Nebiroth

    Nebiroth Registered User

    Aug 20, 2006
    3,511
    It sounds as though it might be too late. The person giving the power, known as the donor, must be mentally competent at the time they do this, enough to understand what they are doing. This is because an Enduring Power of Attorney is very powerful and grants almost complete control of their finances to someone else.

    Ordinary Power of Attorney is used for persons who are physically incapable, and POAs become invalid if they lose ental capacity.

    Both POA and EPA are shortly being replaced by LPA, Lasting Power, which is even more powerful in that it can optionally grant the Attorney the power to make healthcare decisions which EPA does not.

    If someone is already mentally incapable, and there is no existing EPA, then you will need to apply to the Court of Protection. This is more complex and expensive.

    It is not necessary to use a Solicitor to do these things.

    There is a lot of inromation on the Public Guradianship website.

    http://www.guardianship.gov.uk/index.html
     
  7. Do you know what the procedure is, if there is one, to move from an existing EPA to an LPA if the donor who was able to give permission for the original EPA is now seriously incapacitated?

    Thanks in advance

    Brianj
     
  8. sue38

    sue38 Registered User

    Mar 6, 2007
    10,854
    Wigan, Lancs
    There isn't one! Any one with an EPA, who wants an LPA has to have mental capacity and execute a new LPA.

    If they do not have mental capacity the EPA will continue in force. An EPA only covers financial affairs and therefore if someone wants the power to make decisions with regard to healthcare and welfare it seems that under the new Act they will have to apply to the Court to be appointed as a 'deputy'.

    Sue
     
  9. Nebiroth

    Nebiroth Registered User

    Aug 20, 2006
    3,511
    None. You would have to make a new LPA which replaces the existing EPA.

    The usual criteria apply - you have to be "competent" to create an LPA.

    There would be very great potential for abuse if someone with an EPA could in effect grant themselves more powers in an LPA.

    That is why existing EPAs will remain in force and unaffected when LPAs replace them.

    The LPA is welcome in that it finally enables the donor to allow the attorney powers to make healthcare decisions, but of course, is too late in many cases.
     
  10. Clive

    Clive Registered User

    Nov 7, 2004
    716
    #10 Clive, Mar 30, 2007
    Last edited: Mar 30, 2007
    Hi MillyP
    Though it will not be your main concern, do remember that there is no recommended retail price for purchasing your EPA. Each solicitor can charge what they want. In a perfect world you would ring round and get the best price. (Last week my Solicitor wanted £30 to do a Certified copy of our existing EPA. I said (politely) no thank you and went to the Solicitor in the next street and he did it free of charge and said he hoped I would use his services next time I wanted a Solicitor). Realistically you may want a solicitor with a car park, or one who comes to the house. As has already been said in this thread you can download the form and do it yourself easily, but this could cause problems later if anyone suspects dishonesty.
    Depending on the amount of understanding your Dad has, and how he is expected to react when asked to sign a form, it is sometimes advisable for other members of the family to do an EPA for themselves at the same time so that it can be passed off as “something everybody does these days in case they get knocked down by a bus” rather than “we are doing this just for you Dad because we want to look after your money.” (You need one for your mum)
    You also need more than one Attorney in case one gets “knocked down by the proverbial bus”.(The Attorneys need to be able to act jointly and severally otherwise the EPA is cancelled when one Attorney dies.)

    Regards Clive
     
  11. sue38

    sue38 Registered User

    Mar 6, 2007
    10,854
    Wigan, Lancs
    There is very little work involved in preparing an EPA and my firm charges a fee of around £40 for one and £70 for a husband and wife. We treat them as 'lost leaders' i.e. they might lead to further work for the firm in the future. We don't charge extra for going out to see the client at their home (provided they don't live at the other end of the country!).

    The value of using a solicitor is not the skill in completing the form, but the solicitor's independence in assessing the wishes of the client, which would give added weight to the validity of the power if undue influence is alleged.

    If the mental capacity to execute an EPA is in question it is worth asking the GP/Consultant to prepare a short report.

    Sue
     
  12. Michael E

    Michael E Registered User

    Apr 14, 2005
    619
    Male
    Ronda Spain
    It is my opinion that the government created the POA system in order to help ordinary people manage their own affairs in a simple way.

    The signature on the form is witnessed by two people - the person to whom the POA is given and a witness... The only requirement is that the two believe that at the moment of signing the POA the patient/donor knows what he is signing.. They need not know 5 minutes before or 2 minutes after what they have signed but merely at the moment of signing.

    Provided you DO NOT involve an outside person like a solicitor or other 'expert' it is just a matter of the two of you doing your best for your dad - the patient.

    Once you register the POA all sorts of 'checks and balances' come into force.. You have to inform the closest relatives who can object or if they think you are misappropriating the assets and demand accounts be shown to the court. You CANNOT make any major sale of assets or property without informing the court... You must then get the courts permission any major transaction.

    A lot of plain common sense went into this bit of legislation.. Clearly the moment someone other than the 'donor' of the POA, starts to think about getting a POA to look after the donor, then the donor is clearly pretty far gone... Probably on the edge of knowing what they are signing...

    This system allows for 'carers' to take control of the day to day running of the donors affairs with perfectly reasonable security. Avoid using a solicitor and as others have pointed out the web site and help lines are fantastic and easy to access and use.

    This is a time when you need to read between the lines and take the personal responsibility of doing what seems best and right... You and the witness only need to 'persuade yourself' that at the moment of signing he knows what he is doing..............
     
  13. Nebiroth

    Nebiroth Registered User

    Aug 20, 2006
    3,511
    Just one point...you are really speaking about Enduring Power of Attorney, this is the one that is used for people who cannot manage their affairs because they are not mentally competent to do so.

    Ordinary POA is for managing the affairs of someone with physical incapacity, and becomes invalid if they become mentally incapable.

    As you say, though the EPA is very powerful it does seem to have been designed from the start so that "common sense" applies. I think they realised that it is going to be used by ordinary people doing their best to cope in a very difficult and demanding position.

    If it were otherwise you'd probably be looking at obtaining medical certificates of competence and stuff like that at all the stages. :eek:
     
  14. sue38

    sue38 Registered User

    Mar 6, 2007
    10,854
    Wigan, Lancs
    Sorry to correct you Michael but there is no requirement for the person to whom the power is given to be present at the time the donor signs the EPA. Only one witness is required when the donor signs (this witness cannot be the person to whom the power is given obviously). Only when the EPA is signed at the direction of the donor (i.e. bya third party when the donor is physically incapable of signing the form) are 2 witnesses required.

    The person to whom the power is given needs to sign the EPA confirming that they are willing to act and that they understand their duty to use the EPA only for the benefit of the donor and that they understand when they must register the EPA. They can sign at the same time as the donor or at a later date. Again their signature must be witnessed but this can be a different witness to the witness of the donor's signature.

    Of course when the LPA (Lasting Power of Attorney) comes in in October of this year a professional person will need to certify that the donor had the necessary mental capacity to make an LPA.

    Sue
     
  15. Kathleen

    Kathleen Registered User

    Mar 12, 2005
    639
    West Sussex
    Not all solicitors give good advice.

    Ours drew up the EPA for my parents, then after Dad's death and Mum's admission to an EMI home assured us there was no need to register it until the house needed to be sold.

    A full year ago, they charged a large fee for it to be registered, then failed to complete the registration process.........they blamed a locum........I blame us for trusting them to do their job properly.

    The house sale has been halted at the drawing up of the contracts stage,............. yes, same solicitor who only knew it wasn't registered when my brother's solicitor wrote to them..........while we wait for registration to be completed.

    My brother, who always has his eye on his "inheritance" has sent off a rambling objection to registration, his allegation that Mum was made to sign the EPA when she didn't know what she was signing was the lowest thing even he has ever done!

    As the accounts are immaculate and we have provided full evidence of valuations for the house etc, in theory we should be ok.

    However, my faith in the legal system has taken a severe jolt.

    All we can do is pray that common sense and justice prevail, but in the early hours, I am never sure they will.

    Kathleen
     
  16. Natashalou

    Natashalou Registered User

    Mar 22, 2007
    426
    london
    sorry

    sorry to hear of your problems..but surely trying to halt or delay the registration wont really protect your brothers inheritance? I was concerned about the way I was told I had to sell my mothers bunglaow to fund her care..and was simply told if I didnt then the council would put a charge on the property and claim all their money back once it was sold.
    I suppose property prices might rise, but then so will care home fees I guess so its a no win situation! I hope it all gets resolved for you soon, mums bungalow took nearly a year to sell, it was incredibly stressful and it wasnt long before that I had sold my own house which took 18 months.
    good luck
     
  17. Helena

    Helena Registered User

    May 24, 2006
    715
    Actually no dementia patient should be charged for nursing home care

    see www.************


    its those who give in to local authorities and NHs who are letting the goverenment get away with totally illegal acts

    Under 1946 NHS Act which has never been repealed anyone needing care is entitled to continuing care free at the point of use
     
  18. Natashalou

    Natashalou Registered User

    Mar 22, 2007
    426
    london
    I

    have been that route already..didnt work...receive a small rebate on the nursing element thats all. However its fair to say dementia isnt the only problem my mother has.
    The problem with challenging legislation is at the end of the day if the nhs digs its heels in then the only answer is a legal battle and who among us can afford that?
     
  19. Michael E

    Michael E Registered User

    Apr 14, 2005
    619
    Male
    Ronda Spain
    HTML:
    Sorry to correct you Michael but there is no requirement for the person to whom the power is given to be present at the time the donor signs the EPA. Only one witness is required when the donor signs (this witness cannot be the person to whom the power is given obviously). Only when the EPA is signed at the direction of the donor (i.e. bya third party when the donor is physically incapable of signing the form) are 2 witnesses required
    Sue of course you are absolutely right - I have a dreadful memory sometimes.. Hope I didn't catch it... The point is the EPA as it is at the moment is easy to create by an ordinary person in a difficult situation. The powers of the court behind the EPA appear to me to be pretty tough -

    Kathleen I am sorry about your brother problems... So odd isn't it? My children are doing the same thing.... scared I will dispose of their inheritance on 'riotous' living... Mind you they are right to be scared - I have every intention of enjoying every penny I have earned in my life! I also think your comments about solicitors are very sensible... In the end they are just people running a small business who may or may not have any administrative skills... Its a trade that gives very little to society but demands huge fees for just being able to read.

    Michael


    Michael
     
  20. Kathleen

    Kathleen Registered User

    Mar 12, 2005
    639
    West Sussex
    Helena

    It's not a question of giving in to the local authority or NH.

    We have tried several times to get continuing care funding, it is always refused, if we don't pay, she will lose her place in the home.

    Natashalou

    My brother begrudges every penny of her money being spent on anything other than him..a spoilt child has grown into a very bitter man. He thinks, for example, that spending money on chiropody, hairdressing and entertainment at the home are a waste of money, maybe if he had visited her more than 8 times in the last 30 months, he would see how she benefits from these small extras.

    Kathleen
     

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