Help needed regarding power of attorney

garrarda

Hi All,

Need some help understanding the next steps regarding a situation with my mother.

Unfortunately she has had to go into a care home due to dimentia, however my father did not take out lasting power of attorney while she was still mentally sound, however my mother has some savings only in her name, which my father now needs to purchase several fairly expensive items for my mother and wants to use that money, the building society that the money is with will not allow access for my father to this money (its not much) without a power of attorney. Can you still get a LPA even though my mother is now in care? or I read somewhere that you can apply to the court of protection to have access to her finances as she is incapable of doing so, is this correct?

Any help/suggestions gratefully received.

Thanks

anmarj

You cannot get POA once somebody is beyong giving permission for it, you would need to apply through the courts for I think guardian ship on the ground that your mum is not able to deal with affairs but you would need to speak to a solicitor

Savvy_Sue

You could do worse than look at the Public Guardian's website, I believe you should be able to make some progress without needing a solicitor ...

dzug1

Doesn't matter if the person is in care or not - what matters is that they understand what they are doing (even if only intermittently) well enough to sign the forms and that an independent person (which could be a friend, doesn't have to be a professional) agrees. If they don't understand - no PoA.

There is no legal requirement for you to use a solicitor to obtain Power of Attorney or Guardianship, though if having read the documents and seen the forms you are still at sea it could be wise.

Neither process is quick though - several months at least, longer for guardianship.

Biggles

If she doesn't have periods of lucidity where she can clearly understand what's going on and what she's signing, a PoA wouldn't stand up.

If she does, you need to get one signed as soon as possible; preferably make sure a professional (maybe a nurse from the care home) is present as witness to her mental state.

Errata

Biggles wrote: »

If she doesn't have periods of lucidity where she can clearly understand what's going on and what she's signing, a PoA wouldn't stand up.

If she does, you need to get one signed as soon as possible; preferably make sure a professional (maybe a nurse from the care home) is present as witness to her mental state.

Many people with a degree of dementia are able to understand things if they're are clearly and carefully explained to them, and can for instance give permission for POA. It would be sensible in such a case for a solicitor to carry out the discussion with the person, as they can then assure themselves, or not, that the person does understand the situation AT THAT POINT IN TIME.
Care home staff and hospital nurses will not usually act as an observer or witness as they themselves may not understand the ins and outs of POA.
An old age psychiatrist's written opinion of the older person' capacity can also be sought, but the opinion will make clear that it can never be more than a 'snapshot' opinion. HTH
Where someone clearly does not have capacity the Public Guardian can appoint an attorney - very often a relative of the person - but the appointee must always act in the best interests of the person and demonstrate this by keeping full and accurate accounts which can be scrutinised by the Public Guardian office. HTH

dzug1

Biggles wrote: »

If she doesn't have periods of lucidity where she can clearly understand what's going on and what she's signing, a PoA wouldn't stand up.

If she does, you need to get one signed as soon as possible; preferably make sure a professional (maybe a nurse from the care home) is present as witness to her mental state.

Care home staff will not (well should not) get involved - possible conflicts of interest for a start.

And you (the attorney) cannot be present when it's signed - the certifier has to sign a statement that you were not.

Biggles

There's no problem with a local medically-qualified person giving their view. It could be the GP but even if it were a nurse from the care home a statement of their professional opinion would be far more valuable (and far less expensive!) than a solicitor and they would also qualify as a Category B certificate-provider.

Certainly, the certificate-provider must discuss the LPA with the donor without the attorney being present before the signing takes place.

googler

You definitely don't need a solicitor to obtain PoA - I completed all the forms for my mother's PoA single-handed, got her regular GP to countersign as a professional, and asked a neighbour to witness.

It may take you several months to read the OPG's guidance notes, but it certainly doesn't take several months to obtain. After completing the forms, I think it was 3-4 weeks later I had the finished PoA in hand.

Note that the form set can be confusing - you have to send two separate forms in, and some data is repeated between the two forms.

As previous have said, you can only get PoA if she is regarded as understanding what she is signing. If not, you'll have to follow a different path.

googler

If she lacks capacity to sign or make decision to appoint father as an attorney, he has to apply to be a Deputy of the Court of Protection, I think.... OPG510 is the guidance booklet.

http://www.publicguardian.gov.uk/about/court-of-protection.htm

dzug1

googler wrote: »

You definitely don't need a solicitor to obtain PoA - I completed all the forms for my mother's PoA single-handed, got her regular GP to countersign as a professional, and asked a neighbour to witness.

It may take you several months to read the OPG's guidance notes, but it certainly doesn't take several months to obtain. After completing the forms, I think it was 3-4 weeks later I had the finished PoA in hand.

Note that the form set can be confusing - you have to send two separate forms in, and some data is repeated between the two forms.

As previous have said, you can only get PoA if she is regarded as understanding what she is signing. If not, you'll have to follow a different path.

I can assure you it does take more than 3-4 weeks.

In my own case it was just short of 3 months from the form being signed to having it back from the OPG. The main part of that was a 6 week waiting period for objection stipulated by the OPG and the rest the OPG being slow with paperwork.


BTW you only need to send two forms in if you want both the financial one and the welfare one