Power of attorney - mental capacity

poppystar · 7 October 2017 at 9:55AM

Apologies if I'm posting in the wrong bit of the forum, feel free to direct me elsewhere, but I know that power of attorney is sometimes discussed here.

I'm looking for some guidance on what constitutes mental incapacity sufficient for the power of attorney to come into force. Clearly loss of capacity is not always something that happens overnight.

Also, is it necessary to get something in writing from a GP or hospital to effectively give the go ahead to use power of attorney powers so that there is no possible accusation by others of abusing power or jumping in too early.

I have looked at the Gov site but can't find definitive information on this.

Many thanks

Keep_pedalling · 7 October 2017 at 10:39AM

Are we talking about an LPA or EPA here? In the case of LPAs once registered they can be used regardless of the mental capacity of the donor. When I first started using using my mother's LPA she had full capacity but was physically frail, so I used it, with her permission, to do her shopping with a card supplied to me by her bank.

The older style EPAs can't be registered until the donor has lost capacity.

Yorkshireman99 · 7 October 2017 at 10:45AM

Just curious which bank? TIA

poppystar · 7 October 2017 at 10:58AM

Keep_pedalling wrote: »

Are we talking about an LPA or EPA here? In the case of LPAs once registered they can be used regardless of the mental capacity of the donor. When I first started using using my mother's LPA she had full capacity but was physically frail, so I used it, with her permission, to do her shopping with a card supplied to me by her bank.

The older style EPAs can't be registered until the donor has lost capacity.

LPA

My understanding was that only the financial one can be used while the donor still has mental capacity but that health and welfare requires mental incapacity?

The 'permission' thing I can understand but what happens if the donor is doing something that is likely to have longer term negative repercussions and they do not see that? Do not want any help?etc.

My reading around also seems to suggest that they should be left to get on with it but that does feel wrong if one can see problems looming or if it negatively impacts others.

Keep_pedalling · 7 October 2017 at 11:05AM

Yorkshireman99 wrote: »

Just curious which bank? TIA

Barclays. We went in to her local branch together to register the LPA with them, and they issued me with a POA card for her account. She has since lost capacity to manage anything and is in care, at which point I wrote to Barclays to inform them of the change in circumstances, and they cancelled her card, so I now have sole access to her accounts.

Keep_pedalling · 7 October 2017 at 11:14AM

poppystar wrote: »

LPA

My understanding was that only the financial one can be used while the donor still has mental capacity but that health and welfare requires mental incapacity?

The 'permission' thing I can understand but what happens if the donor is doing something that is likely to have longer term negative repercussions and they do not see that? Do not want any help?etc.

My reading around also seems to suggest that they should be left to get on with it but that does feel wrong if one can see problems looming or if it negatively impacts others.

Health and welfare does not require loss of capacity either, so for instance it would give the attorney the ability to speak to the donor's GP about confidential info if the donor has given prior permission to do so.

If the donor decides to do something foolish while still having capacity their jis little you can do about it.

Yorkshireman99 · 7 October 2017 at 11:16AM

Thanks very much. I wish all banks were as helpful.

bouicca21 · 7 October 2017 at 11:18AM

I'm puzzled about the difference between the old style EPA and the new LPA. I think I should do the financial one as an insurance against the future but I don't want my attorneys to use it until I have lost capacity.

poppystar · 7 October 2017 at 11:37AM

Keep_pedalling wrote: »

Health and welfare does not require loss of capacity either, so for instance it would give the attorney the ability to speak to the donor's GP about confidential info if the donor has given prior permission to do so.

If the donor decides to do something foolish while still having capacity their jis little you can do about it.

Thanks.

The permission issue remains a problem as the donor insists they are fine and are keen to retain control (a personality trait!) and I can see why and where they are coming from. However they are also not making good decisions or any where ones are clearly needed. Their actions are also impacting on others both within the family and outside as well as themselves.

I would just ignore foolish things but the person is being pestered by other people to do this, change that, move there etc which is overwhelming them even more and leading to worse problems and upset for the person concerned. If I can't brandish the PoA as I don't have permission then I'm just another voice in the midst of all the clamouring. Others won't shut up and so there is no one voice either to liaise with health professionals who must be getting pretty fed up with it all too.

I was hoping that it would just be a case of getting the health professionals online to confirm a need for PoA action then we could work together to get clarity and as close as possible to what the donor has previously expressed they would want. Instead the existence of the PoA does not seem to be helping anyone let alone the donor.

Yorkshireman99 · 7 October 2017 at 11:48AM

poppystar wrote: »

Thanks.

The permission issue remains a problem as the donor insists they are fine and are keen to retain control (a personality trait!) and I can see why and where they are coming from. However they are also not making good decisions or any where ones are clearly needed. Their actions are also impacting on others both within the family and outside as well as themselves.

I would just ignore foolish things but the person is being pestered by other people to do this, change that, move there etc which is overwhelming them even more and leading to worse problems and upset for the person concerned. If I can't brandish the PoA as I don't have permission then I'm just another voice in the midst of all the clamouring. Others won't shut up and so there is no one voice either to liaise with health professionals who must be getting pretty fed up with it all too.

I was hoping that it would just be a case of getting the health professionals online to confirm a need for PoA action then we could work together to get clarity and as close as possible to what the donor has previously expressed they would want. Instead the existence of the PoA does not seem to be helping anyone let alone the donor.

It comes down the crucial thing with all forms of POA which is to choose your attorneys very, very, carefully. The donor needs to have a candid discussion with the attorney(s) before giving the power. Other near family need to have it spelt out that the attorney(s)’s decision is final although they will listen to what they say.

poppystar · 7 October 2017 at 12:10PM

Yorkshireman99 wrote: »

It comes down the crucial thing with all forms of POA which is to choose your attorneys very, very, carefully. The donor needs to have a candid discussion with the attorney(s) before giving the power. Other near family need to have it spelt out that the attorney(s)’s decision is final although they will listen to what they say.

I'm hoping I was chosen carefully!!!

Donor did however refuse to discuss detail and left the forms blank - solicitor seemed happy about this although I was not. Donor was 'I'll trust you' … (and, yes, I could see the danger in that but to not agree to being PoA would have meant that a person I wouldn't trust with a pet would have been given the task). Maybe donor was only doing PoA because it was the done thing and never intended to relinquish any control while breath left in body. In contrast the funeral is paid for and micromanaged in every detail.

Family don't shut up easily - I wish! I want to take the line you suggest which is why I was hoping that there would be something that could clearly give me the authority to start using the PoA with no comeback for doing so.

Power of attorney - mental capacity

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