What if both PoAs resign at the same time? My elderly maiden aunt appointed 2 people, both of whom want to resign the posts.

[Chris Kent]

My very elderly maiden aunt has dementia and has been diagnosed as no longer having the capacity to make decisions - by the doctors and social worker during a previous hospital stay.
She now lives in a care home and her house needs to be sold to pay the care home costs.

One of her 2 PoA holders has already resigned, the other one now wants to as well.
What happens if she is left with no PoA holders?

Could we appoint a solicitor, or should we report it to the Office of the Public Guardian?
I tried to look this up on the Public Guardian website but couldn't find an answer.

We don't know what to do, can anyone advise me please?
Thanks.

 

[Grannie G]

Hello @Chris Kent Welcome to Dementia Talking Point.

My first instinct would be to seek legal advice but before you do this, please phone Dementia Connect and they should be able to tell you.

Dementia Support Line

If you need dementia support, we’re here for you. Get personalised information, support and advice by calling us on 0333 150 3456.

www.alzheimers.org.uk

 

[canary]

Hi @Chris Kent . Im afraid that you cannot appoint a solicitor to take on POA. I think someone would have to apply to the Court of Protection for deputyship to deal with her finances, including selling her property. This would give authority similar to POA. Is there any family who would be willing to take this on? If not, Social Services will apply for deputyship and the Court of Protection would appoint a panel solicitor as deputy - please note that this solicitor would be answerable to the CoP, not the family.

 

[northumbrian_k]

Hi @Chris Kent and welcome to our community. If all Attorneys stand down then Lasting Power of Attorney is revoked by default. The only way a new one could be made would be if the Donor (your Aunt) had capacity. From your description she does not so the appropriate step would be to apply for Deputyship. I don't have experience of this but other members do. So far as existing LPAs go, to it may be good practice to contact OPG re withdrawal of both Attorneys. Registration will then be cancelled.

 

[Chris Kent]

Hi @Chris Kent and welcome to our community. If all Attorneys stand down then Lasting Power of Attorney is revoked by default. The only way a new one could be made would be if the Donor (your Aunt) had capacity. From your description she does not so the appropriate step would be to apply for Deputyship. I don't have experience of this but other members do. So far as existing LPAs go, to it may be good practice to contact OPG re withdrawal of both Attorneys. Registration will then be cancelled.

Thanks for the info. I don't know why I couldn't find this on the govt website, but maybe I wasn't using the right keywords. It's sad if no one will help her when they are named as executors and/or are beneficiaries of her will!

 

[Chris Kent]

Hi @Chris Kent . Im afraid that you cannot appoint a solicitor to take on POA. I think someone would have to apply to the Court of Protection for deputyship to deal with her finances, including selling her property. This would give authority similar to POA. Is there any family who would be willing to take this on? If not, Social Services will apply for deputyship and the Court of Protection would appoint a panel solicitor as deputy - please note that this solicitor would be answerable to the CoP, not the family.

Sorry, just one more question - could the remaining PoA use a solicitor to help them. So the solicitor wouldn't be an actual PoA but could help with some tasks e.g. selling the house?

 

[nitram]

The attorneys should note that until they have formally disclaimed the power by completing an >>>LPA05<<< and sending the original to the donor, copy to other attorney, and also to the OPG if the power has been registered, they have a legal duty to act on behalf of the donor.

 

[nitram]

could the remaining PoA use a solicitor to help them

The POA can only instruct the solicitor to carry out the legal process of selling the house.
They can ask anybody for advice but cannot delegate any decision making or authorisation.

 

[Chris Kent]

The POA can only instruct the solicitor to carry out the legal process of selling the house.
They can ask anybody for advice but cannot delegate any decision making or authorisation.

OK thanks very much, nitram. This thing is pretty complicated.

 

[MartinWL]

Sorry, just one more question - could the remaining PoA use a solicitor to help them. So the solicitor wouldn't be an actual PoA but could help with some tasks e.g. selling the house?

Yes if the attorney cannot cope without help he or she can get help. But the solicitor can only give advice and assistance, he/she can't make the decions or take on the role of attorney. In practice the solicitor might do all the donkey work and just send the attorney things to sign including cheques. However an attorney has to act in the best interests of the donor and this is going to be costly. If the attorney genuinely can't cope, perhaps due to health issues, there could be a case to be made that this was in the donor's best interests, the least bad option. But if the attorney is just lazy or unwilling to do the work it would be harder to claim that by getting an expensive solicitor to do all the everyday work he was acting in the best interests of the donor.

When it comes to selling a house I think that's much clearer than paying the gardener or the gas bill. I doubt that anyone would query using a solicitor to do a more specialist job like selling property.

 

[Shedrech]

hi @Chris Kent
it may help to look at the various pages on the Gov site
eg

Lasting power of attorney: acting as an attorney

Acting as an attorney - duties, including registering a lasting power, starting to act, gifting, handling disputes and replacement attorney responsibilities.

www.gov.uk

should both Attorneys 'resign', a Deputy will be needed to manage your aunt's affairs .... another family member could apply eg yourself, or a professional Deputy will be appointed (this will cost your aunt much more ... possible something to make the beneficiaries of her will think again?) ... if you take on Deputyship, be sure to include asking permission to sell any property in the initial application

maybe you might take on the day to day management of her affairs under 'instruction' from the Attorney who would then not have to actually do anything but sign documents and provide you with any funds you need (if you do this, keep careful records of decisions/instructions, money spent and actions taken and keep the Attorney informed in writing, to cover your back) ... of course, when selling a property an estate agent and conveyancer/solicitor will do the 'work' but the Attorney will have to make decisions (or tell the Agent/solicitor that you have their permission to be involved) and fill in/sign all documents (though you can help them with this)