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    • poppystar
    • By poppystar 7th Oct 17, 9:55 AM
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    poppystar
    Power of attorney - mental capacity
    • #1
    • 7th Oct 17, 9:55 AM
    Power of attorney - mental capacity 7th Oct 17 at 9:55 AM
    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
    Last edited by poppystar; 07-10-2017 at 9:56 AM. Reason: Edit. To clarify I am talking about a situation where the PoA is already registered and waiting
Page 1
    • Keep pedalling
    • By Keep pedalling 7th Oct 17, 10:39 AM
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    Keep pedalling
    • #2
    • 7th Oct 17, 10:39 AM
    • #2
    • 7th Oct 17, 10:39 AM
    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
    • By Yorkshireman99 7th Oct 17, 10:45 AM
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    Yorkshireman99
    • #3
    • 7th Oct 17, 10:45 AM
    • #3
    • 7th Oct 17, 10:45 AM
    Just curious which bank? TIA
    • poppystar
    • By poppystar 7th Oct 17, 10:58 AM
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    poppystar
    • #4
    • 7th Oct 17, 10:58 AM
    • #4
    • 7th Oct 17, 10:58 AM
    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.
    Originally posted by Keep pedalling
    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
    • By Keep pedalling 7th Oct 17, 11:05 AM
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    Keep pedalling
    • #5
    • 7th Oct 17, 11:05 AM
    • #5
    • 7th Oct 17, 11:05 AM
    Just curious which bank? TIA
    Originally posted by Yorkshireman99
    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
    • By Keep pedalling 7th Oct 17, 11:14 AM
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    Keep pedalling
    • #6
    • 7th Oct 17, 11:14 AM
    • #6
    • 7th Oct 17, 11:14 AM
    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.
    Originally posted by poppystar
    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
    • By Yorkshireman99 7th Oct 17, 11:16 AM
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    Yorkshireman99
    • #7
    • 7th Oct 17, 11:16 AM
    • #7
    • 7th Oct 17, 11:16 AM
    Thanks very much. I wish all banks were as helpful.
    • bouicca21
    • By bouicca21 7th Oct 17, 11:18 AM
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    bouicca21
    • #8
    • 7th Oct 17, 11:18 AM
    • #8
    • 7th Oct 17, 11:18 AM
    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
    • By poppystar 7th Oct 17, 11:37 AM
    • 233 Posts
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    poppystar
    • #9
    • 7th Oct 17, 11:37 AM
    • #9
    • 7th Oct 17, 11:37 AM
    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.
    Originally posted by Keep pedalling

    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
    • By Yorkshireman99 7th Oct 17, 11:48 AM
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    Yorkshireman99
    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.
    Originally posted by poppystar
    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
    • By poppystar 7th Oct 17, 12:10 PM
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    poppystar
    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.
    Originally posted by Yorkshireman99
    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.
    • Yorkshireman99
    • By Yorkshireman99 7th Oct 17, 12:26 PM
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    Yorkshireman99
    This is exactly why both donor and attorney need to agree beforehand. Personally I would be very reluctant to be an attorney.
    • Keep pedalling
    • By Keep pedalling 7th Oct 17, 12:49 PM
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    Keep pedalling
    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.
    Originally posted by bouicca21
    You can no longer do EPAs unless you are in Northern Ireland. LPAs are IMO a much better solution, no one knows when one might be perminantly or temporary incapacitated by something like a stroke or accident, and having a registered LPA in place means your attorneys can step in immediately.

    If no POA is in place then the only alternative is the long winded and expensive proces of going through the courts, having an unregistered LPA in place puts an 8 week or longer delay in getting the thing registered, and even then there is the risk that it could be rejected if it had not been completed correctively, so you are back to the courts again.

    Ours have been registered for about 5 years now, and each of us has 3 attorneys, each other and our 2 children. If you don't trust your attorneys to not act until appropriate chose different ones.
    • FreeBear
    • By FreeBear 7th Oct 17, 1:17 PM
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    FreeBear
    I wish all banks were as helpful.
    Originally posted by Yorkshireman99
    As my mother's health deteriorated, I was granted a third party mandate that allowed me to sign her cheques & other bank related forms - This was with Lloyds/TSB and did it over the counter.

    Never needed a debit card on the account - If (or rather, when) we went out shopping, invariably used my wallet to pay for stuff.
    Her courage will change the world.

    Treasure the moments that you have. Savour them for as long as you can for they will never come back again.
    • Keep pedalling
    • By Keep pedalling 7th Oct 17, 1:58 PM
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    Keep pedalling
    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.
    Originally posted by poppystar
    An attorney is only responsible for action they have taken, and it does not allow you to step in just because the donor is acting a bit strangely. If someone starts giving all their money away for instance but are not showing any other signs of serious mental illness there is nothing that can be done.
    • Margot123
    • By Margot123 7th Oct 17, 2:33 PM
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    Margot123
    A rule of thumb is that an attorney must always act in the best interests of the donor. I had LPA for my father who had full capacity but ignored overdue utility bills, house insurance renewals etc. I was advised by his solicitor to 'take charge' as he would eventually have been made bankrupt and wouldn't have cared a jot! Thankfully, I was instantly able to redeem an otherwise rapidly deteriorating situation.
    • Margot123
    • By Margot123 7th Oct 17, 2:35 PM
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    Margot123
    An attorney is only responsible for action they have taken, and it does not allow you to step in just because the donor is acting a bit strangely. If someone starts giving all their money away for instance but are not showing any other signs of serious mental illness there is nothing that can be done.
    Originally posted by Keep pedalling
    Actually, inaction would not be advisable if the donor was giving all their money away to their own detriment and creating an inability to financially support themselves. This was the legal advice I was provided with regard to father.
    • poppystar
    • By poppystar 7th Oct 17, 3:55 PM
    • 233 Posts
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    poppystar
    An attorney is only responsible for action they have taken, and it does not allow you to step in just because the donor is acting a bit strangely. If someone starts giving all their money away for instance but are not showing any other signs of serious mental illness there is nothing that can be done.
    Originally posted by Keep pedalling
    Actually, inaction would not be advisable if the donor was giving all their money away to their own detriment and creating an inability to financially support themselves. This was the legal advice I was provided with regard to father.
    Originally posted by Margot123

    Which is really why I was seeking guidance in the first place. When can an attorney take over without being asked by donor?

    Surely someone giving all their money away as in Margot's example or calling emergency ambulances every week for months only to be sent home after 24 hours of tests finding nothing wrong could be said to be beginning to need help? Ditto not eating adequate food etc.

    Not wanting to invoke it to save any inheritance from being frittered away or any selfish reasons but simply to ensure the donor has the life they would have previously wanted. I was hoping there was some acid test that could be applied to say someone needed PoA to step in and that protected the butt of attorney from any suggestion they were not acting in donor's best interests.
    • Margot123
    • By Margot123 7th Oct 17, 4:21 PM
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    Margot123
    You MUST use your discretion, and act in a way that any reasonable-thinking person would in order to safeguard the individual. You appear overly concerned about repercussions at a later date; this will not happen. By accepting the role, an attorney also accepts the responsibility to make a clear judgement on behalf of an individual of apparent 'sound mind'.
    I have been in this exact same situation, and therefore can tell you exactly how it 'works'. You have to deal with what is in front of you, and act quickly. Simple changes now can avoid great distress for the donor at a later date.
    • badmemory
    • By badmemory 7th Oct 17, 9:29 PM
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    badmemory
    Anyone who tells you it is easy to jump in and tell a previously financially savvy parent that they are scr***ng up is lying to you. I got my mother out of 2 thankfully small financial disasters, thankfully she felt able to confess to me what she had done, she would never have told my sister. She had a nasty fall which enabled me to use to POA without having to go down the route of actually telling her she wasn't capable. Combined relief & nightmare. In the last year she had gone from contributing to her 2 favourite charities to 11. That to me is how you can tell if your relative is vulnerable. Just track the charities they contribute to. They were taking almost a quarter of her admittedly small income!
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