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Query about mental capacity and LPA

Bearz77

Registered User
Jan 18, 2020
20
We have suspected my mum has dementia for a couple of years but she has refused memory tests. After falling down the stairs over Christmas a hospital stay meant nurses recognised the issues and she has a memory clinic appointment in early feb. We don’t yet have LPA but obviously want to set this up ASAP but have been told once we have a diagnosis her mental capacity will be challenged. Are these the correct facts? Although she can engage in conversation it is sometimes like trying to piece a jigsaw together as her sentences can be jumbled/ missing words. Not sure if this would be classed as lacking in capacity?
 

Beate

Registered User
May 21, 2014
11,894
London
Having a diagnosis doesn't mean someone has lost all mental capacity. They only need to understand in the moment what an LPA is, and there will be back-up by the certificate provider to say she hasn't been coerced into signing. Has someone said they will challenge the LPA on the basis of her diagnosis?
 
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Bearz77

Registered User
Jan 18, 2020
20
Oh thank you - that’s really helpful. When I made enquiries with the solicitors they gave me cause to think it wasn’t certain they would be satisfied she had capacity hence questioning it. Mum definitely knows what she wants in terms of rehabilitation after the fall, it’s just the communicating it to unfamiliar people that may be an issue.
 

Bunpoots

Volunteer Host
Apr 1, 2016
4,051
Nottinghamshire
Hi @Bearz77 welcome to Dementia Talking Point.

You don’t have to use a solicitor to set up LPA. I did my dad’s online. You can print off the forms from the govt website and fill them in yourselves, get them signed and send them off to the OPG to be certified.

it’s straightforward to do and much cheaper than using a solicitor.
 

northumbrian_k

Registered User
Mar 2, 2017
966
Newcastle
I agree with @Bunpoots My wife had only just been diagnosed when she signed her Powers of Attorney. We used the online system and found it straightforward. We even got a partial refund when the fees were reduced to their current rate. Easier and cheaper than using a solicitor and without possibly spurious and uninformed capacity judgements.
 

Shedrech

Volunteer Moderator
Dec 15, 2012
8,734
Yorkshire
Hello @Bearz77
A warm welcome from me too

Here's a link to the Gov site

https://www.gov.uk/power-of-attorney

When your mum chooses her Attorneys... I suggest she has 2 to act jointly and severally and/or a named replacement
Don't add any stipulations eg about proving capacity, keep it as simple as possible
Get both ie finance and also health
 

Wildflowerlady

Registered User
Sep 30, 2019
112
I agree with the capacity thing we were told that as long as dad had understanding of what he was signing at the time of signing the LPA and its implications it could be done. Dad had been diagnosed already with mixed dementia.
I downloaded the forms from the internet gov.uk as has already been mentioned and filled them in for dad as his writing wasn't that good plus there is a fair amount to look over. It was fairly easy to do as long as you go over carefully and there were helpful notes on each section on a separate download that helped explain each question and advice as to what options meant. It was so much cheaper and dad has no property so it was just to help us help him legally.
Dad had Jointly and Severally option and to be used either before or after capacity is lost reason being proof of lost capacity could be needed if selected only after lost capacity. They actually do advocate it being the best option. My sister and I are both Attorneys.
We had dads GP sign as Certificate Provider to dads capacity and he also witnessed both my sister and I sign as Attorneys we figured this way there was no chance of any queries as to dad capacity at the time. We registered the document straight away but didn't actually take to bank for them to give us POA cards etc for many months as dad could still use his card if out shopping albeit with a reminder of PIN. We have now reached the stage where he barely goes out so I do use his card for shop but keep all the receipts in a book in the event that they are needed or any query's made.
I also have a LPA for my partner done last year as he has Parkinson's now and its progressing further he has used a rubber stamp for his signature for a couple of years and no I don't use it :) he does trust me. Partner's was also done from the internet however as we own property together as Tenants In Common I had to make sure we had another Attorney as well as myself that had no financial interest in our property as I can sell my share but not his share of the property too a quirk in the Legal system? but presumably done to add protection to other owner which many may not be aware of :rolleyes:. Not very logical for me to sell part of our home, we have been together 18 years in our current home. Partner has left his share to me in his Will.
We had a neighbour sign partners capacity he doesn't have dementia and we have two Attorneys myself and other plus a replacement attorney in the event we lose one :eek:.
 

Shedrech

Volunteer Moderator
Dec 15, 2012
8,734
Yorkshire
hi @Bearz77
I really do suggest you do not include that proof of lack of capacity must be sought.... this clause has caused problems for some members who in all conscience believed the donor no longer had capacity and as Attorney needed to take over management of finances then faced difficulties finding someone willing to certify to lack of capacity

Leaving the LPA open means an Attorney can help the donor manage finances and take over when they honestly believe they need to (there are a few unscrupulous Attorneys but most take their responsibility seriously, even to the detriment of their own finances and welfare)
 

nitram

Registered User
Apr 6, 2011
19,901
North Manchester
QUOTE]I downloaded the forms from the internet gov.uk as has already been mentioned and filled them in for dad as his writing wasn't that good plus there is a fair amount to look over. It was fairly easy to do as long as you go over carefully and there were helpful notes on each section on a separate download that helped explain each question and advice as to what options meant.[/QUOTE]

You can fill in the form online
https://www.gov.uk/power-of-attorney/make-lasting-power
Doing it this way you will be alerted to any omissions or contradictions.
Guidance is also available.
You can save the form and come back to it to edit and re-save.
When completely happy with the form you can pay the registration fee so the LPA arrives already registered, download, print, get all signatories to sign (the same date on all signature is acceptable) and post to OPG

Carrying on with the DIY theme
When the validated LPA arrives the donor can self certify copies

https://www.gov.uk/power-of-attorney/certify
An easy way to do this which saves a lot of writing, and also means there is no chance of making a mess of things on the valuable originals, is to scan them and then print with a footer of the appropriate statement (different on last page) ready for signing by donor.
If you can't handle footers pre print sheets with the statement and then print LPA on those sheets.
 

Bearz77

Registered User
Jan 18, 2020
20
Thank you all very much for your suggestions which are very helpful. I hadn’t thought of doing it ourselves. I suppose the only issue might be that she sees a different dr every time at her practice so I’m not sure how they would be able to sign - and getting her to the dr is v tricky. I wonder if it capacity could be certified at memory clinic? Am wondering if we should wait until we’ve been and got the official diagnosis. It’s all so tricky isn’t it.
 

Banjomansmate

Registered User
Jan 13, 2019
1,606
Dorset
Never wait until you get a diagnosis before setting up LPAs. A dementia sufferer can deteriorate mentally very quickly and unexpectedly, which would leave you with major problems if you hadn’t got LPzas in place. You do not need to have any sign of loss of mental capacity to donate an LPA, I did mine several years ago so they are there for my children to register if ever they are needed.
 

nitram

Registered User
Apr 6, 2011
19,901
North Manchester
I suppose the only issue might be that she sees a different dr every time at her practice so I’m not sure how they would be able to sign
It need not be a doctor and if it is they don't have to have known her for any length of time.
A doctor would be making a skill's based assessment.
A lay person can make an experience based assessment

"Who can be a certificate provider?

A certificate provider must be at least 18 years old and either:

• a friend, colleague or someone you’ve known well for at least two years – they must be more than just an acquaintance

• your doctor or lawyer or someone with the professional skills to judge whether you understand what you’re doing and are not being forced to make an LPA"

Part A10 P38

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/631084/LP12-Make-and-register-your-lasting-power-of-attorney-a-guide.pdf


Read the complete Part A10 for full details.

Is there likely to be any future contention about her choice of attorneys?
 

Bearz77

Registered User
Jan 18, 2020
20
Thank you. No contention likely; will probably just be me and my brother. Memory clinic is set for 5th Feb so will be quite soon. But we can start filling in the forms now I guess.
 

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