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Power of attorney
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frogeyesimon wrote: »As far as the £120 fee is concerned, I'd have thought it pefectly reasonable, once the POA has been registered, for you to be re-imbursed from the donor's assets. It would after all be in "their best interest" to have this properly sorted, and as such perfectly reasonable for them to bear the cost. No need to go "cap in hand" to your brother
It is legally 100% correct for the fee to come from the donor - though you may have to pay it out yourself and reclaim it once you have access to the accountsAs regards getting hold of a copy of the EPA if need be - then I guess I could just go to my parents' solicitor, prove my identity to them and they would have a copy.
You must have the original to register it0 -
moneyistooshorttomention wrote: »Thanks - that makes it very clear as to what is what then.
So, it looks like a case of "maintain a watching brief" and if I think "oh DEAR" at some point and that things are looking a bit "drastic" then I would go and get it "registered" at that point and ask my brother for half the £120 odd fee (yep...I think I have a feeling just what his response to that one would be somehow:( and I'd be into him permanently owing me £60 odd) and I can do whats necessary.
Good idea, if it came to a home, to get them to send a bill for "extras" at intervals and just hand over a cheque to cover it. Nothing is going to be foolproof and thief-proof - but I guess that's about the best that could be done. Just wait for a list of: "2 hairdresser visits £x, 1 chiropody visit £y" and so on and hope it was accurate.
As regards getting hold of a copy of the EPA if need be - then I guess I could just go to my parents' solicitor, prove my identity to them and they would have a copy.
Re the modern "health and welfare" POA's - it looks as if I had better not ever sign one of them if the question arises - as it would appear they may not give me much (if any) more "power to my elbow" to ensure the welfare of my mother, but would have the disadvantage of looking like I had officially agreed to be a carer (something I'm tying myself up in all sorts of knots to avoid - making sure mother is okay on the one hand, but I'm not turned into a carer on the other hand).
Dear MTSTM,
No-one can be forced to care for another adult - so the H&W LPA wouldn't mean that you would be forced to care for your parents, just that you would be able to talk to perhaps the GP or other medics on their behalf.
The alternative to the LPA or other types of attorneyship is that control of your parents' finances can be managed by an appointee chosen by the Court of Protection, thus removing all responsibility, decision making and personal involvement from you for your parents' finances. The cost of that person's fees for such management would come from your parents' assets. You however cannot charge a fee for attorneyship.
So you absolutely do not have to take this Attorneyship if you do not wish to.
If you do decide to accept attorneyship, and you have concerns that you might be accused of mismanagement, always be absolutely scrupulous in your record and receipt keeping of all transactions carried out on the donor's behalf. That should be the case anyway, but doubly so if you fear troublemaking by your brother. He can still raise a case via the OPG anyway without any foundation - one of the joys of the system.
The cost of registering the Attorney papers should come from the donor's assets, not from the attorney.0 -
Thank you everyone. It is all a lot clearer to me because of your responses:T
I would probably have "fallen at the very first hurdle" of trying to get my brother to cover half the cost of registering that POA if need be - and its good to know that I could go ahead and pay out the whole £120 and safely reclaim it anyway.
Particularly true, in that I suspect my brother and I are about to sever contact in the event. My attempts to get him on board for 50% of the responsibilities involved have resulted in him not replying to me, but just "stirring it" with my parents to try and have me take the whole 100% responsibility it appears he has always assumed I would. I've had to tell him to stop doing so, in order that we can remain on reasonable terms. I suspect he will keep doing so regardless and relations will be severed between us and I will have to do what I can to make all 100% of any arrangements that need making. On my own then...just as I always thought I would be in the event..:cool:
I kept totally quiet years back when it became clear in a couple of different incidents that my brother is just out for himself, even if I'd get hurt in the process, and said absolutely nothing and carried on being polite. But...that looks like that between him and me now I suspect. Such is life and its no surprise to me at all that this is how it looks as if things are going.
Anyways, thanks to you all, it is indeed so much clearer as to what to do if/when...0 -
Just to add a little (or maybe a lot: it is a long post) to the previous posts on this thread.
As stated in previous posts there are two types of Lasting Power of Attorney ("LPA"). There is the LPA Property and Affairs ("P&A") and the LPA Health and Welfare ("H&W"). There are differences though as to when the two documents can be used by an attorney:
-- the LPA P&A can be used by the attorney immediately after the LPA has been registered with the Office of the Public Guardian ("OPG").
-- the LPA H&W can only be used by the attorney after the LPA has been registered with the OPG AND the donor (i.e. the person making the LPA) no longer has capacity to make decisions for themselves.
This difference provides flexibility, and allows for the situation where the donor is physically unwell (e.g. sitting at home with a broken hip but of 'sound mind'). They can authorise their attorney to go to their bank on their behalf -- using the LPA P&A as their necessary authority.
Both LPAs are governed by the Mental Capacity Act 2005, which means that any decisions made by the attorney on behalf of the donor should be in the best interests of the donor. The attorney is accountable to the OPG. The LPA therefore provides additional protection over a standard General Power of Attorney which is governed by the 1971 act.
The LPA P&A was almost a direct replacement for the Enduring Power of Attorney ("EPA"). EPAs that were correctly completed in their entirety prior to 1st October 2007 remain valid. The EPA must be registered when the donor is deemed to have lost capacity or about to do so. Whilst the donor is deemed of sound mind there is no necessity to register the EPA with the OPG, and the attorney can use the document. You will realise that the EPA is therefore more open to abuse by an attorney than an LPA because the LPA includes a number of additional processes designed to restrict abuse.
The LPA H&W does not replace a 'Living Will', but provides greater flexibility than the 'Living Will' (also known as an 'Advance Directive'). The Living Will was previously merely an expression of wish before 2007. The Mental Capacity Act 2005 however made them legal documents. If you make a LPA H&W then any previous Living Will is (usually) cancelled by the LPA H&W. However you can make a Living Will after you have made your LPA H&W, and it will be binding.
The registration fee of either type of LPA and the EPA is now £130 (And not £120 as quoted on a number of posts). See http://www.justice.gov.uk/downloads/forms/opg/lpa-120.pdf for details. You can apply for a fee remission (which reduces the fee to £65 per LPA registration) if the donor's income is below the OPG's set threshold, and for a fee exemption (which reduces the free to £0 per LPA registration) depending upon the circumstances of the donor. Any fees should ultimately be paid by the donor.
There was a comment made earlier about how you decide if a person has lost their mental capacity. This is not an easy 'call' for a non-professional, and even professionals can find it difficult. The fact that a donor has made a 'peculiar' decision is not evidence that the donor has lost mental capacity. The Mental Capacity Act states that an attorney should assume that the donor can make decisions themselves unless the attorney can establish that the donor cannot. When explaining this to my concerned clients I explain that the decision making process can be broken down into three parts 1. Gathering information; 2. Processing the information; and 3. Making a decision. Only if any one of those three aspects of the decision-making process fails should the attorney assume their duties -- but even this explanation could be argued to be a simplistic approach. And it should also be borne in mind that a donor may not understand one aspect of their life but could understand another. (e.g. discussing their investments v. What they want to drink in the afternoon) The fact that the donor cannot comprehend [say] their investments does not mean that they have lost complete mental capacity. The donor should be given every opportunity to make the decision, and only if the attorney knows that they are unable to comprehend the situation should the attorney make the decision on behalf of the donor.
Most people can see the benefit of the LPA P&A; far less people see the benefit of the LPA H&W. The H&W should not be discounted just because of its cost. Many people assume that the document just authorises the attorney to make decisions regarding the health and welfare of the donor i.e. as its name implies. But it is a very powerful document.
The attorney can:
-- discuss the donor's affairs with doctors and Social Services and override those decisions made by these professionals where the attorney thinks the wrong decision is being made for the donor.
-- restrict who visits the donor who by virtue of having lost their mental capacity is a vulnerable person. This can be a very important power where there is a history (or future opportunity) for other family members to abuse the donor . Abuse can also come from friends, neighbours, and even carers.
-- decide where the donor is to reside. Without this power the NHS/Social Services will choose a location for the donor. This is not usually a problem but if the accommodation is not suitable then the donor needs someone who will fight their corner for them. i.e. their attorney
-- if so authorised by the donor (i.e. the donor signed option A in the LPA H&W) decide what life sustaining treatment the donor is to receive. Now you may think that such power is unnecessary as the NHS doctors will make the decisions but have you heard of the Liverpool Care Pathway ("LCP")? There is evidence (and I can speak personally) that people have been put on the LCP when they should not. The fact that the NHS appear to receive payment for putting patients onto the LCP means that there is a risk for some patients to be put onto the plan who would otherwise not have been.
The following articles from the BBC, Telegraph and Independent websites explain more:
http://www.bbc.co.uk/news/uk-england-21141281
http://www.telegraph.co.uk/health/elderhealth/9796968/The-Liverpool-Care-Pathway-to-dignity-in-death.html
http://www.bbc.co.uk/news/uk-england-21141281
My father was recently put upon the plan without any consultation with his family; we were told that is was 'reversible' but it was the doctors decision to reverse it if they felt it appropriate. (My father lost mental capacity before the LPA H&W came into force so he was unable to make the LPA H&W and so we did not have the necessary power to override the doctor. )
Attorneys have rung me up to express their thanks to me for having recommended the donor make an LPA H&W; it allowed the family to make important decisions for their loved ones that they would not otherwise have been able to do in the twilight days/hours of the donor. So I would urge anyone to consider carefully making an LPA Health and Welfare.
I hope the above is helpful.0 -
I am sorry to hear what happened to your father and your family.
Yes I second the advice to think about an H&W LPA.
My husband is in a nursing home and has made an Advance Directive. I had assumed that this would be enough to protect him against unwanted medical treatments and make sure his wishes were complied with.
We had an incident a couple of weeks ago where the nursing home attempted to go against his wishes. I had the devil of a job trying to protect him.
I won't go into too much detail - it would take too long.
Briefly they wanted him to be hospitalised despite his instructions that he didn't want this to happen. Luckily the ambulance crew who had been summoned were suspicious and they held off until I managed to reach the home to clarify the situation.
The ambulance crew advised me that they had overhead a conversation between the matron and a nurse which had alerted them to the fact that my OH may have been co-erced
A doctor was summoned who brought an independent witness with him. I had already taken my son as a witness too as a precautionary measure.
In front of the nurse who had tried to pressure my husband, the Doctor and our respective witnesses, I was able to question my husband and ask him to confirm what he wanted to happen.
I have now instructed our solicitor to sort out a H&W LPA.
That incident was terribly distressing and stressful and made me ill for several days. I never want anything like that to ever happen again.
I have of course made a formal complaint to his Social Services Care Manager. Needless to say he too was livid on my OH's behalf and has severely admonished the nursing home.
My husband can just about verbally communicate his wishes to me but not for much longer. Hopefully the H&W LPA will be sufficiently legal and binding to protect him against any further incidents of this nature.0 -
Thank you Willman - that is extremely clear and precise. I like all i's dotted and t's crossed and your post does so very well.:T
From my pov - it would appear that (with the Enduring POA it looks as if I have) that my mother could ask me to do anything financial she wanted now and firms/etc would have to accept this - but I'm a bit unclear as to whether I could step in that second if she started doing things that would be extremely out of character for her (eg giving away handfuls of cash to strangers in the street). It looks, from what you say, like I would have to step in pronto and register the POA at that point. I guess the Enduring POA being deemed to be a bit "unsafer" in effect would boil down to things like if my brother had this power instead of me and I wouldnt trust him not to find a way to channel a bit of money away for himself - even without it being registered (eg "My mother has told me to pay her bill for her and my own whilst I'm here" or something).
That has also clarified for LessonLearned in her circumstances and I imagine she is far from the only one who will find herself in awkward circumstances (as per her recent incident regarding her husband). In her circumstances, I would certainly have taken it as read that (as his wife) I would have the "next in line" decision-taking rights after those of her husband himself and been shocked to find other people trying to make our decisions for us.
LessonLearned - definitely sounds as if you need to do this "medical" POA tout suite for your husband and I am sorry to hear this incident happened. Hope things go better for you re this now. In the event, you will have the chance to get this sorted out before your husband loses his ability to talk and it is a blessing that, if another incident happens, that you will have this POA to hand now. Just as well to make it VERY clear to the Home (once the POA is ready) that you have this document and it will make them a lot less inclined to go against your husbands wishes. As he has an Advance Directive then that really should have been quite sufficient on its own for the home to respect his wishes and it sounds as if maybe these Directives need to be given a bit more legal "force to their elbow". It would have come as a surprise to me that that wasnt enough to stop the home acting as they did. I shall be studying the wording of my own Advance Directive more closely and see whether it specifically states words to the effect of "I am not to be taken to hospital unless I specifically state that I wish to be" - rather than have anyone make the automatic assumption that of course I would want to be.0 -
moneyistooshorttomention wrote: »From my pov - it would appear that (with the Enduring POA it looks as if I have) that my mother could ask me to do anything financial she wanted now and firms/etc would have to accept this - but I'm a bit unclear as to whether I could step in that second if she started doing things that would be extremely out of character for her (eg giving away handfuls of cash to strangers in the street). It looks, from what you say, like I would have to step in pronto and register the POA at that point
Yes, you are correct. If/when the donor start showing signs of losing their mental capacity then you should register the EPA. The instructions regarding registration say the EPA document should be registered when a person has lost mental capacity or is showing signs of doing so. Your role, as attorney, is to protect the doner; if you feel they have lost capacity (by giving away handfuls of cash) then you take up your responsibilities immediately, and register the EPA as soon as practical thereafter.moneyistooshorttomention wrote: »I guess the Enduring POA being deemed to be a bit "unsafer" in effect would boil down to things like if my brother had this power instead of me and I wouldnt trust him not to find a way to channel a bit of money away for himself - even without it being registered (eg "My mother has told me to pay her bill for her and my own whilst I'm here" or something).
The more modern style LPA P&A provides donors with greater protection than the previous EPAs did. To clarify my point regarding potential abuse -- referred to in my earlier post -- the abuse that occurs with an EPA/LPA is done by the attorney. The abuse occurs in one or both of the following ways:
-- The donor makes the EPA document and stores it away, believing that it will not be used until required -- which may be sometime in the future. The attorney who (say) suddenly finds themselves wanting more money locates the EPA document and trundles off to the donor's bank and explains to the bank that they have been appointed attorney for the donor. The bank note the EPA on their files. The donor is blissfully unaware that the attorney has presented the EPA to his bank -- especially if the attorney then returns the EPA to its original place of storage.
The attorney then withdraws cash from the donor's bank account, either on a regular basis over a period of time or takes out a sizeable lump sum in one go. Either way, when the error comes to light the bank's defence is that they have a copy of the EPA on file which, by definition, allows the attorney to withdraw money from their client's (the donor) account. As the EPA does not need to be registered while the donor is of sound mind the bank has a defence against the transaction(s) and the donor loses out.
The LPA P&A on the other hand can only be used after it has been registered with the OPG. The registration process includes sending letters to a person that must be notified. And the OPG also send letters to the donor and attorneys advising them of the registration of the document. This additional process helps reduce, though not necessarily eliminate, this particular style of abuse.
-- the second method of abuse is by the attorney who is legitimately acting for the donor, but occasionally additionally helps themselves to the donor's funds. This can occur with both the EPA and the LPA P&A. This 'abuse of position' is difficult to detect because the donor would not expect the attorney to abuse their position, and they often don't have the ability to check off entries on their bank account against receipts for items purchased on their behalf by the attorney. This is why it is so important for a donor to choose as their attorney(s) only people that they can trust explicitly.
Where a family member, or indeed anybody for that matter, suspects that abuse is occurring under the EPA/LPA they can report their suspicions to the OPG.
If I understand your situation correctly only you have been appointed as the attorney. Your brother was not included on the document. From your side, yes your brother may accuse you of abusing your position but if he does so then advise him to direct his complaint/suspicions to the OPG. From your angle you should maintain receipts for expenditure made on behalf of the donor. and if you follow the principles of the Mental Capacity Act 2005 you should have no problems.
I hope that answers your concerns.0 -
Thank you again.
Yep...even clearer then. Any "handing out cash to strangers in street" episode and I can step in literally that second and try and take the cash back off them and stash it back in her bank account and show them the POA and say I've taken over - but better get my act together to register the POA pronto (like within that week).
If my brother had POA instead/as well as me he could go rooting round their home and find it and head off to the bank and persuade them that he's now "in charge" (because of it being an Enduring POA) and start channelling cash towards himself. Fortunately, I'm the only one who has that POA - so I know that POA will remain safely put away unless its actually needed for their welfare. Other scenario - my brother (if he had the POA) could decide he wanted to buy his children a posh car and he couldnt afford it, but was able to use an unregistered POA to do so in the few day timespan before he had to get it registered.
Yep...gotcha on that...:T0 -
Just a couple of thoughts: acting 'differently' need not mean that someone has lost capacity. I recently had a conversation with someone about how to work out whether or not they were paying enough tax to cover all their Gift Aid donations. This wasn't a person I'd have expected to be making any donations to charity, certainly not on a scale to have to worry about how it compared with their tax liabilities.moneyistooshorttomention wrote: »Any "handing out cash to strangers in street" episode and I can step in literally that second and try and take the cash back off them and stash it back in her bank account and show them the POA and say I've taken over - but better get my act together to register the POA pronto (like within that week).
Now, maybe I don't know this person as well as I thought I did, but is that out of character, and therefore maybe an indication of loss of capacity? This person is also far more generous to their grandchildren than they ever used to be: is that out of character? Should I alert their attorney? I know who it is, and it's the 'old' kind. In this case I don't think so, but you get my drift ...
Also I think you'll find it takes a good deal longer than a week to register even an Enduring PofA.Signature removed for peace of mind0 -
SavvySue
I get your drift okay and am aware of that angle and am likely to be acting very "out of character" indeed myself when I sense that my own personal end is nigh - so due allowances would be made on that front.
I think my single biggest concern on that one would be just how I was supposed to spot "out of character" stuff from the other end of the country or do any POA stuff required at all. I think it likely that distance between us will create a headache or two...:cool:. Everything would have to be done by post/email or phone:eek:0
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