Powers of Attorney

Tibs

Registered User
Oct 1, 2011
9
I feel a bit of a fraud, as I do not consider my case to be strictly associated with alzheimers, but the topics I've read here seem incredibly relevant and helpful, so hope no-one will mind.

My father always managed my parents' affairs, until the last few years of his life, when I unofficially (no powers of attorney) took over. When he died in 2004, I downloaded a PGO Enduring Power of Attorney which my mother signed, witnessed by mutual friends, appointing me as her Power of Attorney. Although I have never registered the form, I just wanted everything in place before it became a sensitive issue. At that time, my mother was in her late 80s, but in exceptionally good health, and a very clear-minded person. She was more than happy for me to manage her affairs, which I have been doing since without registering the EPA. (She can still sign where I tell her to, although it's getting more difficult.)

When I first became aware of the Lasting Power of Attorney, I read on a website (enduring-power-of-attorney.net) that "the current Enduring Power of Attorney is better for the majority of people than the Lasting Power of Attorney, and we recommend that you make an EPA before 1st October 2007." I contentedly printed this off, filed it with the signed EPA, and forgot about it.

More recently, although she's still amazing, Mother's health and mental ability have declined naturally enough, and I'm wondering if the EPA (which I have still not needed to implement) is still suitable. What issues could there be without an LPA? In Terms of health, there are only two or three of us to care for Mother's welfare, and we all want for her best. Are there potential issues that I'm not waking up to?

I'd be most grateful for your feedback.

Many thanks in advance
Tibs
 

sue38

Registered User
Mar 6, 2007
10,854
51
Wigan, Lancs
Hi Tibs and welcome to Talking Point (TP).

I think you have raised an important issue, that many of us who are helping to organise a person's finances in an unofficial capacity can relate to.

When it comes to what you can and can't do from a financial point of view, there isn't any difference between an EPA and LPA. You can use the unregistered EPA however if your mum is still capable of dealing with her own affairs. If and when the time comes that she is no longer able to do so, at that point you need to register it with the OPG. The LPA can't be used at all until it has been registered.

The EPA doesn't give you any powers when it comes to health and welfare issues, although historically the authorities have sometimes unofficially taken into account on such issues.

To be honest I'm not sure how effective the Health and Welfare LPA is. We, as a family, made the decision with the doctors that my dad shouldn't be resuscitated. No one even asked if we had a Health and Welfare LPA (we didn't). In the UK the LPA doesn't give you the right to overrule the doctors and other health and social services professionals, unlike in other countries.

I think the LPA for Health and Welfare comes into its own when there is no one obvious, such as a partner or child, to be consulted on such decisions and the donor wants to nominate for example a friend or more distant relative. It's also useful if there is someone obvious (such as an estranged child) who the donor definitely doesn't want to be involved in the decision process.

This factsheet may help

http://www.alzheimers.org.uk/site/scripts/documents_info.php?documentID=154
 

ArfanB

Registered User
Oct 5, 2011
9
London
As Sue mentioned the majority of the time with Health and Welfare LPA the family will be consulted the extra LPA is a "comfort blanket" for the more difficult institutions.

It can also cover aspects such as:

Deciding where the donor is to live.
Deciding what contact, if any, the donor is to have with certain other people.
The Donor’s day-to-day care, including diet and clothing.
Assessments for and provision of community care services.
Access to personal information about the donor.
Refusing life-sustaining treatment

I would suggest you do register the EPA (as an attorney) as the current wait times are a few months and it may prove useful to have it registered for the future.

The scope of the LPA's (the two new ones) are greater and offer more protection for your mother and allow for (arguably) greater control especially in regards to health and welfare (esp when coupled with a living Will) however it can be costly to set up (registration fees for each are £130 + drafting fees if you hire a professional).

If your mother still has capacity I would suggest having a meeting with an learned adviser to resolve any issues or queries you have. Generally you are offered a no-obligation home visit from most practioners so either way would be useful and with no costs.
 

Nebiroth

Registered User
Aug 20, 2006
3,511
As has been pointed out, there is very little difference between and EPA and LPA (financial). They both let the attorney manage the financial affairs, and only the financial affairs, of the donor. The LPA (welfare) grants a limited authority to make certain health and welfare decisions, and just by existing tends to give the attorney a "louder voice" when it comes to decisions that involve third parties like social services.

I am not sure why that website you mentioned suggested that an EPA would be better (the name of the website suggests some sort of vested interest to be honest). The only reason I can think of is that LPA's tend to be a little more complex to create, and are thus more expensive. Particularly if you want both types or what to put a lot of conditionality into them. Or, maybe whoever ran the website simply took the view that it was a bad idea to give anyone health and welfare powers - but you don;t have to create that sort of LPA.
 

Tibs

Registered User
Oct 1, 2011
9
Thank you all so much for your input. I’m afraid my (unofficial) duties of power of attorney and failing drains have taken me away from the computer for the last week, so I’ve only just paid proper attention to your responses.
My simplistic view of the EPA, when we set it up, was to give (financial) institutions authority to accept instructions from the attorney on behalf of the donor, but, with your guidance and a bit more research, I now also see its scope as a protective instrument for the donor.
I’m going to look into the registration of the EPA, as recommended by ArfanB. I’ve downloaded the Enduring Power of Attorney Registration pack from the Office of the Public Guardian (justice.gov.uk website) and shall analyse what has to be done, as I haven’t yet digested the contents! It would seem the cost of registering an EPA (£130) is the same as the LPA….
There are two reasons why I’ve become concerned now about what I need to do in connection with powers of attorney. One is that mother feels she’s a burden (as she is almost totally, emotionally dependent on me and my husband), and is worried that she ought to go into a home. The thought to her would be is of condemnation and the “end of the world”, and is her worst nightmare. The other is that my mother is prone to jump to conclusions, and this is becoming noticeably worse. So I can’t bring myself to consider proposing a health/welfare LPA as she’d be likely to interpret it as the thin edge of the wedge to putting her into a home. However, in light of all your comments, I don’t feel so pressured to take out an LPA. It does seem that common sense among sensible people will prevail, but I’ll bear in mind the “louder voice” (Nebiroth’s comment). On looking again at the saved webpage “enduring-power-of-attorney.net” I suspect it does have a vested interest, as suggested by Nebiroth, but the comments suited me at the time, as I had a signed (albeit unregistered) power of attorney form!
Sue38’s personal experiences and the alzheimers factsheet link have been very reassuring. I know, as does Mother in her mostly-positive moments, that all her surviving family are concerned for her best interests, so I’m comfortable that she won’t be betrayed in any way in the future.
I am left with one question, however, what does it mean to be able to “use” the EPA without registering it? For example, whatever “management” I do for Mother, I do without any consideration of having an EPA…..signed, or unsigned.
Thank you also Sue38, for transferring my post to the correct subject. I got in a muddle and didn’t know how to correct it!
Sincerely
Tibs
 

jenniferpa

Registered User
Jun 27, 2006
39,448
Depending on the wording of the EPA, being able to "use" it without registering it means that you could, for example, take it to the bank and use it just like an "ordinary" power of attorney. You couldn't do that with an LPA.
 

Tibs

Registered User
Oct 1, 2011
9
Thank you Jennifer PA. It will certainly make life easier! If only I'd thought.....

I've looked at the signed EPA paperwork and covering notes, and there are no restrictions specified, i.e. the attorney ( I ) has general authority to act on the donor's (Mother's) behalf in relation to all her property and affairs. On the other hand, it doesn't state that I could present the document and it will be accepted by, e.g. the bank (either before or after registration)
 

scatterbrain

Registered User
Jan 10, 2008
25
Berkshire
EPA is OK

Hi, I just want to say that I have EPA for my Mum, and I have had no difficulty with health professionals at all. It may not technically give me the same authority that the health LPA would but nobody seems to mind! They have all accepted that Mum needs someone to speak for her and that someone is me.

The EPA does say "all property and affairs" and it does not specify what type of affairs they may be, but that is legal language for you. It probably doesn't mean what we think it should. In my experience if you present it with confidence it will not be questioned. The only problems I have had - and there have been several - are with financial institutions whose staff don't seem to know how do deal with an EPA or whose systems will not allow me the access I am entitled to. That is another discussion, however, for another day! I would like to add a word of caution though: it is advisable to go through the hoops and register the PoA with the banks etc. Technically if you, for instance, register for online banking as though you were her you are breaking the law.

There does come a point where you need to register the PoA with the court because in theory it could be revoked by the donor at any time before it is registered. I have never been asked if I have registered it - perhaps the widespread lack of understanding works in our favour from time to time - but it is best to do it just in case when the right time comes.

I hope this helps, and good luck!
 

Paul Taylor

Registered User
Oct 21, 2011
6
SE England
I think the Lasting Power of Attorney is a rip-off.

It costs £130 for each of the two forms (financial and welfare) but the checks on the identities and moral authorities of the participants are laughable.

In the end they give you a certificate that anyone could knock up on a wordprocessor, so if you want to use it for something important, you have to hand over the original documentation to eg the bank.

Social services, hospitals, GPs, etc pay little attention to the LPA - it just lets them tick a box. Even then they don't take much notice of the attorneys - if the spouse is on hand they will talk to them even if they are manifestly incapable of taking rational decisions, or just do what they usually do.

If the person still has mental capacity and their financial affairs are straightforward, I would suggest making the necessary financial decisions there and then.

In particular, getting "third party access" (as at least Barclays calls it) from the bank is free and much simpler than getting LPA.

I base this on my experience with my mother with Alzheimers, for whom we have LPA, and my father who is cognitively normal but in an emotional mess, for whose bank account we have third party access. I stress that I do not have any relevant professional qualifications and am making these comments from personal experience alone.
 

Tibs

Registered User
Oct 1, 2011
9
LPA or EPA ?

Dear Scatterbrain:
I value your comments, and will take steps to register the PoA with the banks, and with the court. Reading your personal experiences have helped to reassure me too, so thank you very much for your time and thoughtfulness.
Regards
Tibs
 

Tibs

Registered User
Oct 1, 2011
9
LPA or EPA?

Dear Paul:

Your feedback is much appreciated, especially as a non-professional with experience to share. I’ve come across similar circumstances in other fields, and can relate to your comments. I’ll pay heed with my future actions, and, whilst I’ll register the EPA which was signed 7 years ago, you'll be pleased to learn that I've now been convinced that the LPA is not necessary.

Thank you for your input.

Regards
Tibs
 

Margaret W

Registered User
Apr 28, 2007
3,725
North Derbyshire
I do not think that an unregistered EPA has any clout at all. After all, it could have been revoked by the person by the time you present it.

Once a person shows signs of being mentally incapacitated you HAVE to register it, and it can be registered in advance of that time if it is felt to be convenient, e.g. if your mum was physically incapacitated and needed your help to deal with her affairs.

My experience in registering mum's was that it took about 6 weeks, but it can take longer. When you register it, get 3 or 4 copies of the registration, or get a solicitor to certify the main copy. Then you can send them to different organisations.

Expect some problems to arise with some organisations, particularly banks. Ask if they have an EPA department, or maybe even their bereavement department might be more knowledgeable. I know I had immense difficulties with the DWP, but not at all with that well-known bank based in Halifax that used to be a building society.

Good luck

Margaret
 

jenniferpa

Registered User
Jun 27, 2006
39,448
An unregistered EPA may be used as a "regular" power of attorney if it doesn't included any statement to the contrary. You are required to register it if you believe the donor is losing capacity but a lot of people gave them as an insurance policy when they were perfectly well since they allowed the attorney to act in any circumstances. As an example, one of our members whose sister lives outside the country used the EPA format to ensure that she could act for her sister in any legal matter, and there was no chance that an accident would negate that POA.
 

nitram

Registered User
Apr 6, 2011
19,697
North Manchester
...When you register it, get 3 or 4 copies of the registration, or get a solicitor to certify the main copy. Then you can send them to different organisations
The OPG no longer supply two free Office Copies on request at registration, they only provide copies in exceptional circumstances and charge £50 per copy.

If the donor is still capable they can self certify copies of registered LPAs

"Getting a copy of your Lasting Power of Attorney

You will be supplied with your registered Lasting Power of Attorney.
The donor can make certified copies of the Lasting Power of Attorney if they still have mental capacity. This can be done by copying the registered document and writing the following text at the bottom of each page:
I certify that this is a true and complete copy of the original Lasting Power of Attorney
The donor must then sign the bottom of each page.
If the donor does not have mental capacity, a solicitor can make certified copies of the Lasting Power of Attorney."


http://www.direct.gov.uk/en/Governmentcitizensandrights/Mentalcapacityandthelaw/Mentalcapacityandplanningahead/DG_194861

The easy way to do this is to copy the sheets onto paper with a pre-printed footer of 'I certify that this is a true and complete copy of the original Lasting Power of Attorney' and sign alongside the footer.
 

Tibs

Registered User
Oct 1, 2011
9
EPA or LPA

Thank you, Margaret W, Nitram & Jennifer PA for your additional input.

Tibs
 

Thos

Registered User
Nov 2, 2011
10
EPA is essential.
You don't need to wait - you can register one for yourself if you like, and it doesn't come into force until the person is deemed incapable of making reasonable decisions for themselves.
Don't fanny about - please get this signed and witnessed by your mother's solicitor as soon as possible.
 

Tibs

Registered User
Oct 1, 2011
9
PoA

EPA is essential.
- please get this signed and witnessed by your mother's solicitor as soon as possible.
Hello Thos: Mother signed an EPA 7 years ago, witnessed by neighbours... no solicitor involved. I thought all I had to do now was register it with the OPG.....?

Tibs