A cautionary tale! Mum was past the stage of being able to agree to a Power of Attorney, so I applied for Guardianship last August. This was granted by the court early in December. So far so good, but you have to have the final certificate before you can actually do anything, and what with Christmas and one thing and another, I only got the certificate a few days ago. Mum finally moved out of hospital and into a care home just before Christmas, and seems to be settling fairly well, so we thought we could finally relax. That was until the first week of January when we had a phone call from one of Mum's neighbours saying there was water running out of her front door. Mad dash over there found water cascading through the ceilings, through the overhead lights, and soaking carpets and furniture. Anyone who has had burst pipes will know what a mess it is, but when you have to deal with insurance companies who aren't allowed to take instruction from you because you aren't the policyholder and you don't have the final piece of paper that says it's OK to talk to you, has made the whole episode really stressful. Three weeks after the event, we've only today managed to get an appointment for an assessor to come out and look at the damage (and the appointment is still 2 weeks away!) So please, if you think you won't really need POA, remember that if the unexpected happens, the powers that be will not talk to you without it. The Data Protection Act is a good thing in many ways, but it is an immovable object when what you need is a bit of help and co-operation during a crisis. Be warned!
Think about Power of Attorney/Guardianship
- Thread starter feebs
- Start date
Not a matter I have had dealings with feebs, but thank you for drawing attention to this issue.
The more I read about such things makes me think we should all appoint someone to act for us, dementia aside.
The more I read about such things makes me think we should all appoint someone to act for us, dementia aside.
poa/loa
Hello everyone
Yes definitely everyone should make a lasting power of attorney when you are young fit and healthy. Never mind dementia you never know what life will throw at you. The forms can be downloaded free from the public guardianship office and filled in free by you or family and costs only the printing ink unless you need to have a nominated attorney register it. You are safe to have an nominated attorney, or several attorneys as they cannot register it without several other family members agreeing to the registation. They cannot get at your money until it is registered.
Magenta
Hello everyone
Yes definitely everyone should make a lasting power of attorney when you are young fit and healthy. Never mind dementia you never know what life will throw at you. The forms can be downloaded free from the public guardianship office and filled in free by you or family and costs only the printing ink unless you need to have a nominated attorney register it. You are safe to have an nominated attorney, or several attorneys as they cannot register it without several other family members agreeing to the registation. They cannot get at your money until it is registered.
Magenta
Having power of attorney doesn't necessarily give you the power to deal with an insurance company in the case of a flood. I am not sure what does - it all sounds dreadful!
I think you need to get yourself registered as an appointee as the DSS call it, or something similar. But I hadn't thought about an insurance company.
Margaret
I think you need to get yourself registered as an appointee as the DSS call it, or something similar. But I hadn't thought about an insurance company.
Margaret
Guardianship-been there got the tee shirt
Hi Feebs
I am from scotland and know exactly what you have been through.I had major problems with my Dads bank as they had lost the papers and did not understand what gaurdianship was so I could not get access to my Dads funds to pay for his care, just like you his insurance company would not recognise me either, it was a very stressful time dealing with people who did not understand that it was a court order and that if they did not comply they were breaking the law.Hope you have a good solicitor-you may need them.
It took 6 months to get the gaurdianship and I thought that I could deal with my Dads finances and welfare etc but you still have to get permission from the OPG and cannot make welfare decisions- that have an impact on their health as it is the doctor who has the last say and the social worker is the care manager not you. So really it is a waste of time as the solicitors win in the end as it will cost. Very frustrating at times.
Dawn
Hi Feebs
I am from scotland and know exactly what you have been through.I had major problems with my Dads bank as they had lost the papers and did not understand what gaurdianship was so I could not get access to my Dads funds to pay for his care, just like you his insurance company would not recognise me either, it was a very stressful time dealing with people who did not understand that it was a court order and that if they did not comply they were breaking the law.Hope you have a good solicitor-you may need them.
It took 6 months to get the gaurdianship and I thought that I could deal with my Dads finances and welfare etc but you still have to get permission from the OPG and cannot make welfare decisions- that have an impact on their health as it is the doctor who has the last say and the social worker is the care manager not you. So really it is a waste of time as the solicitors win in the end as it will cost. Very frustrating at times.
Dawn
Good morning
I so agree with your posts but it may be good to ad something to this
[QUOTE You are safe to have an nominated attorney, or several attorneys as they cannot register it without several other family members agreeing to the registation. They cannot get at your money until it is registered.
][/QUOTE]
The fact is it cannot even be registered until your own doctor certifies that you are no longer mentally able to look after your own affair. So there really is no worries at all.
I did mine when my husband had his stroke, and by then it was unfortunately too late to do his. How I wish someone had advise me to do ours when we were younger.
You really never know what is around the corner. Thank Goodness.
I so agree with your posts but it may be good to ad something to this
[QUOTE You are safe to have an nominated attorney, or several attorneys as they cannot register it without several other family members agreeing to the registation. They cannot get at your money until it is registered.
][/QUOTE]
The fact is it cannot even be registered until your own doctor certifies that you are no longer mentally able to look after your own affair. So there really is no worries at all.
I did mine when my husband had his stroke, and by then it was unfortunately too late to do his. How I wish someone had advise me to do ours when we were younger.
You really never know what is around the corner. Thank Goodness.
I'm not aware of any requirement to involve a doctor:
http://www.publicguardian.gov.uk/arrangements/how-to-register-lpa.htm.
The donor (person who's assets/welfare the LPA relates to) has to be notified. They could then choose to contest the registration and ask their doctor to verify that they still had the capacity to manage their own affairs.
Or another family member could contest the document by saying that the donor did not have the capacity to agree to the LPA when it was drawn up. They might try and get a doctor to verify that the donor lacked capacity at the time.
So, as far as I know, there is no explicit requirement to involve a doctor at any time, but they may become involved if there is a dispute of some kind.
http://www.publicguardian.gov.uk/arrangements/how-to-register-lpa.htm.
The donor (person who's assets/welfare the LPA relates to) has to be notified. They could then choose to contest the registration and ask their doctor to verify that they still had the capacity to manage their own affairs.
Or another family member could contest the document by saying that the donor did not have the capacity to agree to the LPA when it was drawn up. They might try and get a doctor to verify that the donor lacked capacity at the time.
So, as far as I know, there is no explicit requirement to involve a doctor at any time, but they may become involved if there is a dispute of some kind.
Last year I obtained and registered Lasting POA for both my Mum and Dad. Dad has AD mum is just physically disabled, I have used them both with the insurance company and am about to lodge Dads with the bank. At no point have we had to even inform our GP that we were applying for or registering POA.
The fee for registration is also means tested so you can get it done for free or part funded. This only applies to the OPG and not a solicitor if you use one!
Hope this helps.
PS Scottish law is usually totally different to English law both criminal and civil.
Jane x
The fee for registration is also means tested so you can get it done for free or part funded. This only applies to the OPG and not a solicitor if you use one!
Hope this helps.
PS Scottish law is usually totally different to English law both criminal and civil.
Jane x
Hello Sandy I have done my EPA and the solicitor explained quite definitely that my son who will be my guardian, would not be able to register it without a doctor certifying that I was not mentally capable any longer. If this was not the case anybody could decide at any time to register an EPA because in their mind the person in question was not mentally capable. I have not seen this in writing from the court of protection but it does make sense to me. A lot of AD sufferers as you know, don't think there is anything wrong with them and would not agree to a POA being registered.
I have just found my solicitors letter which states
I draw your attention to the fact that the original should be held and only released to your son on your instruction or if it is established that you lack mental capacity.
When I queried this she said that it would have to be certified by a doctor.
Most times when we get to the stage of registering the EPA the donor is not able to contest, even though they often would never agree due to the fact as we so often see that they don't believe there is anything wrong with them. Therfore the doctor should certify that the donor is now mentally incapable. If this is not the case then the system is failing the donor in my view.
I have just found my solicitors letter which states
I draw your attention to the fact that the original should be held and only released to your son on your instruction or if it is established that you lack mental capacity.
When I queried this she said that it would have to be certified by a doctor.
In a way we agree but
Most times when we get to the stage of registering the EPA the donor is not able to contest, even though they often would never agree due to the fact as we so often see that they don't believe there is anything wrong with them. Therfore the doctor should certify that the donor is now mentally incapable. If this is not the case then the system is failing the donor in my view.
I understand it like this:
Anyone over the age of 18 can draw up an LPA as long as they have the mental capacity to understand it. That is why you need to have a Certificate Provider, who signs to say that the Donor has understood it all.
That Certificate Provider is someone you choose and who is willing to confirm that you’ve understood it, haven’t been put under pressure to create it, and that it hasn’t been completed fraudulently. If it's challenged later (as in Sandy's example) then the Certificate Provider would/should have to answer questions, I hope!!
The Donor can register the LPA him/herself as soon as it is created, if they wish to do so, while they still have the capacity. And the Donor can restrict the use of the LPA by his/her Attorney(s) until the Donor loses capacity, and can place any number of restrictions within the LPA about its use.
Or an Attorney can apply to register the LPA at any time.
That's my view of it.
Anyone over the age of 18 can draw up an LPA as long as they have the mental capacity to understand it. That is why you need to have a Certificate Provider, who signs to say that the Donor has understood it all.
That Certificate Provider is someone you choose and who is willing to confirm that you’ve understood it, haven’t been put under pressure to create it, and that it hasn’t been completed fraudulently. If it's challenged later (as in Sandy's example) then the Certificate Provider would/should have to answer questions, I hope!!
The Donor can register the LPA him/herself as soon as it is created, if they wish to do so, while they still have the capacity. And the Donor can restrict the use of the LPA by his/her Attorney(s) until the Donor loses capacity, and can place any number of restrictions within the LPA about its use.
Or an Attorney can apply to register the LPA at any time.
That's my view of it.
Hi Winnie,
I just speak from personal experience, in that we successfully registered EPA's for both my MIL and FIL and no medical input was required by the Office of the Public Guardian. So it is not a requirement of the process.
I think the example that you gave, the donor feels that they are still capable but cannot follow the procedure to object, would tend to indicate that they have lost the ability to manage their affairs, at a practical level at least.
Take care,
I just speak from personal experience, in that we successfully registered EPA's for both my MIL and FIL and no medical input was required by the Office of the Public Guardian. So it is not a requirement of the process.
I think the example that you gave, the donor feels that they are still capable but cannot follow the procedure to object, would tend to indicate that they have lost the ability to manage their affairs, at a practical level at least.
Take care,
Hello again
I have just found all my papers and the EPA states
"I understand that I have a duty to apply to the court for the registration of this form under the Enduring Powers of Attorney Act 1985 when the donor is or is becoming mentally incapable"
This could become very argueable if the doctor did not have to certify and I would hope the courts if no certificate was enclosed with the application would ask for proof when registering.
This is correct there is a whole section where you can insert you own restrictions. So everybody could actually have slightly different EPA's
I have just found all my papers and the EPA states
"I understand that I have a duty to apply to the court for the registration of this form under the Enduring Powers of Attorney Act 1985 when the donor is or is becoming mentally incapable"
This could become very argueable if the doctor did not have to certify and I would hope the courts if no certificate was enclosed with the application would ask for proof when registering.
This is correct there is a whole section where you can insert you own restrictions. So everybody could actually have slightly different EPA's
Hello Sandy
I did not see your reply before I wrote my last post and I understand what you are saying but I am disappointed that you were able to register without doctors certificate, as I think this could be misued in certain circumstances. How did the Court of protection know that Your PIL's did not have their mental capacity anymore or if they still did that your PIL's wanted you to start taking control of their affairs?
If they had no proof they were not really protecting your FIL's were they. No offence against you of course, I am just trying to establish if there really is a loopwhole here. There is no problem where the donor can still sign but if she can't I see a problem.
I did not see your reply before I wrote my last post and I understand what you are saying but I am disappointed that you were able to register without doctors certificate, as I think this could be misued in certain circumstances. How did the Court of protection know that Your PIL's did not have their mental capacity anymore or if they still did that your PIL's wanted you to start taking control of their affairs?
If they had no proof they were not really protecting your FIL's were they. No offence against you of course, I am just trying to establish if there really is a loopwhole here. There is no problem where the donor can still sign but if she can't I see a problem.
Hi Winnie
Because as part of the registration process you had to indicate that you did notify them of your action to register the EPA, along with all of the required relatives.
If the OPG did not receive any objections, from the donor or relatives within a set time (something like 6 weeks), the document was registered as originally drafted.
I suppose that you could see not requiring a doctor's certificate as a safeguard that has not been adopted. But I personally think the process is lengthy, complicated and expensive enough without adding another layer of bureaucracy.
In the end, the registration only puts in motion the person's original wishes and one would hope that they chose attorney's who would not abuse their trust.
One other problem with the doctor's certificate idea. Most GP's would not want to be cast in the role of telling someone that they were no longer able to manage their affairs. They have a hard enough time dealing with issues like driving and the DVLA as it is. They could feel, and rightly so, that it is a very difficult judgment call to make from their perspective and it could easily undermine patient trust in future.
Take care,
Because as part of the registration process you had to indicate that you did notify them of your action to register the EPA, along with all of the required relatives.
If the OPG did not receive any objections, from the donor or relatives within a set time (something like 6 weeks), the document was registered as originally drafted.
I suppose that you could see not requiring a doctor's certificate as a safeguard that has not been adopted. But I personally think the process is lengthy, complicated and expensive enough without adding another layer of bureaucracy.
In the end, the registration only puts in motion the person's original wishes and one would hope that they chose attorney's who would not abuse their trust.
One other problem with the doctor's certificate idea. Most GP's would not want to be cast in the role of telling someone that they were no longer able to manage their affairs. They have a hard enough time dealing with issues like driving and the DVLA as it is. They could feel, and rightly so, that it is a very difficult judgment call to make from their perspective and it could easily undermine patient trust in future.
Take care,
Hello Sandy
I have just come back and seen your post, I almost did not reply because you and I look at this from two different angles even though we both agree with the result i.e. to protect the donor, but I will just finish off with my thoughts once more.
OK I appreciate You Notify them, but if there are no relatives to inform there are no relatives who can object and the donor would probably by the time you register not be able to object, the last is my very point.
I definitely do think so and I also think that every penny spent on the solicitor in this case is worth its weight in gold.
I agree with that but also that the original wishes as in my case are that it should not be registered until I am mentaly unable to look after my own affairs, and only my doctor and consultant would be able to certify that, nobody else in my and my solicitors view.
I think this is very much part of the doctor's or consultant's duty as nobody else have the medical facts. My doctor for instance had to sign that my mother had less than 6 months to live to fast track her CLHC now that is not a nice job to do but it is part of their duties. I also think that trusting or not trusting your doctor is very much individual for each AD sufferer just like trusting and not trusting your family. It is as far as I know more common that the sufferer does not trust the family than their doctor, but we will never know that for sure as that is all part of the desease.
Interesting though how we all look at things differently.
Take care
I have just come back and seen your post, I almost did not reply because you and I look at this from two different angles even though we both agree with the result i.e. to protect the donor, but I will just finish off with my thoughts once more.
OK I appreciate You Notify them, but if there are no relatives to inform there are no relatives who can object and the donor would probably by the time you register not be able to object, the last is my very point.
I definitely do think so and I also think that every penny spent on the solicitor in this case is worth its weight in gold.
I agree with that but also that the original wishes as in my case are that it should not be registered until I am mentaly unable to look after my own affairs, and only my doctor and consultant would be able to certify that, nobody else in my and my solicitors view.
I think this is very much part of the doctor's or consultant's duty as nobody else have the medical facts. My doctor for instance had to sign that my mother had less than 6 months to live to fast track her CLHC now that is not a nice job to do but it is part of their duties. I also think that trusting or not trusting your doctor is very much individual for each AD sufferer just like trusting and not trusting your family. It is as far as I know more common that the sufferer does not trust the family than their doctor, but we will never know that for sure as that is all part of the desease.
Interesting though how we all look at things differently.
Take care
we have recently (last six months) had mums LPA set up and registered with the office of public guidianship and mum had to have a doctor to verify mum was capable at the time of signing understand what she was signing etc. hers is held in place and registered until the time she cannot and we take over. its all very confusing because when on a visit with mum to bank we ask what do we do if mum is incable and we have LPA he totally confused me and said if you have ???? you can set it up now and if you have not got ??? you only do when she is incable.
With the new LPA the donor can - if they wish - state that a doctor/medical professional has to provide confirmation that the donor has lost the mental capacity to handle their own affairs, before the Attorney(s) can act.
When you draw up the LPA you can nominate 'people' who are to be informed if/when it is registered. This doesn't need to be relatives. They can raise objections - for example, if any one of them thinks that you have not lost the capacity to handle your own affairs.
You can have as many attorneys as you like. And it is advisable to nominate 'replacement attorney(s)', just in case any of your attorney(s) dies/is incapacitated/becomes mentally incapacitated themselves/decides they do not not wish to act for you.
Once a health and welfare LPA has been registered, your attorneys can only make decisions for you when you lack mental capacity to make the decisions yourself.
If you have already made an enduring power of attorney (before October 2007), it is still valid, but it does not allow your attorneys to make decisions about your health and welfare.
The Certificate Provider (who signs to say that you are fully aware of the implications of an LPA) doesn't need to be a doctor, but it could be. It could be any one of a whole variety of people, as long as he/she has known you for at least two years, is not a family member as listed in the forms, or has the required professional skill to be able to determine that you have understood it all.
The OPG/COP recommends that you register the LPA fairly soon after you create it - because it could be needed before you realise it. I can see the sense of that, as long as you choose your Attorney(s) with care - people you trust - and as long as you place as many restrictions/instructions in the LPA.
Simple guidance here: http://www.publicguardian.gov.uk/docs/lpa-hw-making-guidance-1009-1.pdf
Similar guidance is available for property & affairs LPA.
When you draw up the LPA you can nominate 'people' who are to be informed if/when it is registered. This doesn't need to be relatives. They can raise objections - for example, if any one of them thinks that you have not lost the capacity to handle your own affairs.
You can have as many attorneys as you like. And it is advisable to nominate 'replacement attorney(s)', just in case any of your attorney(s) dies/is incapacitated/becomes mentally incapacitated themselves/decides they do not not wish to act for you.
Once a health and welfare LPA has been registered, your attorneys can only make decisions for you when you lack mental capacity to make the decisions yourself.
If you have already made an enduring power of attorney (before October 2007), it is still valid, but it does not allow your attorneys to make decisions about your health and welfare.
The Certificate Provider (who signs to say that you are fully aware of the implications of an LPA) doesn't need to be a doctor, but it could be. It could be any one of a whole variety of people, as long as he/she has known you for at least two years, is not a family member as listed in the forms, or has the required professional skill to be able to determine that you have understood it all.
The OPG/COP recommends that you register the LPA fairly soon after you create it - because it could be needed before you realise it. I can see the sense of that, as long as you choose your Attorney(s) with care - people you trust - and as long as you place as many restrictions/instructions in the LPA.
Simple guidance here: http://www.publicguardian.gov.uk/docs/lpa-hw-making-guidance-1009-1.pdf
Similar guidance is available for property & affairs LPA.
Hi Bonnie,
The Alzheimer's Society has a good basic factsheet on this:
http://www.alzheimers.org.uk/factsheet/472
As JPG1 has said, you can have a doctor be your Certificate Provider if you want, but it's not a requirement.
It's interesting to compare that to the Property and Financial LPA where it seems the donor has to make an explicit requirement that the registered LPA can not be used until they lack capacity:
From the guidance on the Property and Financial LPA:
http://www.publicguardian.gov.uk/docs/lpa-pfa-making-guidance-1009-1.pdf
So Bonnie, it all depends on what restrictions, if any, were written into the LPA.
Take care,
The Alzheimer's Society has a good basic factsheet on this:
http://www.alzheimers.org.uk/factsheet/472
As JPG1 has said, you can have a doctor be your Certificate Provider if you want, but it's not a requirement.
It's interesting to compare that to the Property and Financial LPA where it seems the donor has to make an explicit requirement that the registered LPA can not be used until they lack capacity:
From the guidance on the Property and Financial LPA:
http://www.publicguardian.gov.uk/docs/lpa-pfa-making-guidance-1009-1.pdf
So Bonnie, it all depends on what restrictions, if any, were written into the LPA.
Take care,
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