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New power of attorney guide

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  • Rosie1980
    Rosie1980 Posts: 150 Forumite
    Part of the Furniture 100 Posts Combo Breaker
    edited 23 October 2013 at 5:26PM
    monto743 wrote: »
    Does anyone know this? please tell me. I am a carer for my elderly husband, I am 76, our home in our will passes to who-ever survives the other.

    My next question is this.Do I need a POA. wWe have a joint account also

    I thought I would have access to whatever was in the account

    whatever happens.

    Today from HSBC bank I have received account changes stating that if a joint account holder loses mental capacity the account is effectively frozen until POA is provided. So except for existing direct debits/standing orders and any other transactions already arranged you would need to have a POA to continue using your joint account. HSBC isn't the only bank to have this policy!
  • My father has an Enduring Power of Attorney in place with me as the executor.
    My mother now wants me to arrange a Lasting Power of Attorney for her.
    Having read the threads on the forum, I have a few questions.
    1. Do I need to update the Enduring Power of Attorney - it is witnessed and lodged with my father's solicitor.
    2. Do I need to involve a solicitor with the LPA? Threads indicate online completion is straightforward, followed by patience whilst it becomes registered.
  • The enduring power af attorney is still as valid as the day it was made, so no you do not need to redo that unless there are any changes to be made. However there are two types of LPA a 'property and financial affairs' one and a 'health a welfare' one. An enduring power of attorney only covers someone's financial affairs so if you are getting both done for your mother you may also want to consider a health and welfare one for your father.
    Providing it's all straight forward then doing it online is a piece of cake, you print, get it signed as instructed and then print off all the registration paperwork and send. It's £110 per LPA plus your postage to register. There are some groups of people that can have it registered for free ie if the donor receives certain benefits.
  • Hello,
    I am fairly new to all of this so any advice that people could offer would be appreciated. I have a registered enduring power of attorney, it was registered last year as my mother's mental health deteriorated, in the autumn she moved into a care home. (My father died in 2008).

    We need to sell her home to pay the care fees; my son would like to buy it and has a mortgage offer which equates to two thirds of its value. Everything was under way, we had both instructed solicitors and the sale was progressing. However last week my solicitor informed me that I have to apply to the Court of Protection for agreement to sell it to a family member. He took a very negative view of this and told me it would be easier to just sell it on the open market.

    I rang the Court of Protection for advice and one of their officers told me that it should be fine. She said it could take 15 - 20 weeks but it should be agreed.

    Does anyone out there have any experience of this form of application?
    I don't necessarily want to take the easy option as my brother, son and myself had come up with a plan to enable us to fund the care fees for a number of years. My mother who is nearly 92, is very physically fit.

    Any help suggested would be appreciated.
  • I would follow COP's guidance here, but your solicitor has raised a valid point.

    Is the solicitor raising the question because you say your son has a mortgage offer of two thirds of the value - where is the other third coming from?

    As POA you have to be acting in your mother's best interests - and selling to a family member at less than the market rate could be viewed as deprivation of assets, which the solicitor cannot be party to.
  • Mojisola
    Mojisola Posts: 35,571 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    We need to sell her home to pay the care fees; my son would like to buy it and has a mortgage offer which equates to two thirds of its value. Everything was under way, we had both instructed solicitors and the sale was progressing.

    However last week my solicitor informed me that I have to apply to the Court of Protection for agreement to sell it to a family member. He took a very negative view of this and told me it would be easier to just sell it on the open market.
    I would follow COP's guidance here, but your solicitor has raised a valid point.

    Is the solicitor raising the question because you say your son has a mortgage offer of two thirds of the value - where is the other third coming from?

    As POA you have to be acting in your mother's best interests - and selling to a family member at less than the market rate could be viewed as deprivation of assets, which the solicitor cannot be party to.

    Like trouble says - I'd be surprised if the problem is selling it to your son - it's selling it for two-thirds of its value that's the problem.

    A physically fit 92 year old could easily live to 100 or more. The plan that you have to cover care home fees for this length of time - will they still stand if one of you loses your job or becomes long-term ill or even dies?

    As POA, you have to act in your mother's best interest. Giving away a third of the value of her property just isn't right.
  • I do appreciate the comments.
    Our plan is similar to equity release but within the family, I know that creates a 'gift' element for the other third of the property's value which is the debatable element. My brother and I have agreed a plan for the future with my son, in order to be able to pay the care fees for a number of years as we recognise my mother could live for quite a while. If we just sell the property we would have between 4 - 5 years, not sure what we would do after that.
  • troubleinparadise
    troubleinparadise Posts: 1,120 Forumite
    Part of the Furniture 1,000 Posts Combo Breaker
    edited 12 January 2014 at 10:09PM
    Weary Teacher: If we just sell the property we would have between 4 - 5 years, not sure what we would do after that.

    Whatever sum your mother's property achieves is whatever its value is. If the full price on the open market might only pay for 4-5 years of residential care, then should the need arise LA funding would come into play.

    That is partially why it is so important to act in a fully transparent manner as POA. If a financial assessment becomes necessary, then there might be questions raised as to why the property was sold below market value to a family member, and funding will be withheld.

    The other aspect as I wrote before is that you are charged with "acting in your mother's best interests" - and selling her property for less than its value is not that - she should be the only beneficiary, not your son.

    Whilst you have referred to it as "equity release", the law will not see it as such, and that is why the solicitor is understandably unhappy with the arrangement you are trying to carry out.

    If your mother was in the habit of making large gifts of £10k's a year for many years, then a further gift of that magnitude might stand up, especially from a wealthy individual, but a POA cannot start to make such gifts after taking over a donor's finances where they have not existed before.
  • itm2
    itm2 Posts: 1,446 Forumite
    Part of the Furniture 1,000 Posts Name Dropper Hung up my suit!
    My sister and I are arranging a Lasting POA for my father, with some responsibilities held jointly and some severally. We would like to include my nephew as a replacement POA, in the event that either I or my sister pass away.

    My question is: if named as a replacement Attorney, will my nephew automatically assume the role of EITHER of the two Attorneys in the event of their death? (i.e. for decisions which must be made jointly, will my nephew automatically become the other joint decision maker?), or do we need to explain in our application exactly how and where he would step in for either of us?
  • foxxboy
    foxxboy Posts: 50 Forumite
    Just for info I am applying for a LPA at the OPG. They are telling me that they are inundated at the moment and are taking six weeks to start processing applications.
    Non omne quod nitet aurum est
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