Court protection order vs Power of attorney???

CATS

Hi all,

I am hoping there will be someone who knows a little bit of the legalities of the court protection order and power of attorney. My MIL had a stroke a few weeks ago and has lost mental capacity. We are debating if it's best to apply for a court protection order for her or just apply for power of attorney for my FIL. Most bills, bank accounts etc are in joint names so if anything happens, I assume my FIL will be able to access bank accounts, pay bills etc. They dont have a huge amount in terms of assets, they own a home, which I assume if something happens to her, her half will automatically go to my FIL? I think it is better to get his power of attorney whilst he has mental capacity so that we can take care of anything if something happens to him. Are there any benefits to having her court protection order?

Thanks

margaretclare

Your MIL should have set up power of attorney before she lost mental capacity. She can't give power now. Too late.

I think it is better to get his power of attorney whilst he has mental capacity so that we can take care of anything if something happens to him.

Yes, definitely. As they have everything set up with joint accounts, from which bills can be paid, no immediate problem. Your FIL can appoint an attorney, give power to someone - you can't do it for him, although he can give power to you. It has to come from the person themselves.

As to owning the home, this depends if it is in joint names or tenants-in-common. If it's joint names, it automatically becomes his property on her death. Or vice versa. Also joint bank accounts. On her death it all becomes his.

CATS

Hi margaretclare, yes hindsight is a wonderful thing, unfortunately she didn't. My question is more, should we apply for a court protection order for her or a power of attorney for my FIL. Well aware she cant give power of attorney now.

margaretclare

CATS wrote: »

Hi margaretclare, yes hindsight is a wonderful thing, unfortunately she didn't. My question is more, should we apply for a court protection order for her or a power of attorney for my FIL. Well aware she cant give power of attorney now.

You don't apply for power of attorney. FIL does. He could appoint you as his attorney.

As everything is in joint names (find out about the house - joint tenants or tenants in common) probably no need to apply for Court of Protection. FIL can deal with everything as the other joint account holder. C of P costs a lot, I believe.

Mojisola

CATS wrote: »

I am hoping there will be someone who knows a little bit of the legalities of the court protection order and power of attorney.

My MIL had a stroke a few weeks ago and has lost mental capacity. We are debating if it's best to apply for a court protection order for her or just apply for power of attorney for my FIL.

Most bills, bank accounts etc are in joint names so if anything happens, I assume my FIL will be able to access bank accounts, pay bills etc. They dont have a huge amount in terms of assets, they own a home, which I assume if something happens to her, her half will automatically go to my FIL?

I think it is better to get his power of attorney whilst he has mental capacity so that we can take care of anything if something happens to him. Are there any benefits to having her court protection order?

I think I would just go with POA for FIL but more knowledgable people might give a good reason for also getting an order for MIL.

My reasoning would be that FIL would be included in any medical decisions as her next of kin and, financially, having everything held jointly does make life easier.

RAS

You may need both.

Whilst FIL can obviously manage the joint accounts; there are other decisions that need to be made re her care. So it would make sense for FIL and OH to be appointed.

If and when FIL starts to fail, a LPA will be needed to support him.

Bear in mind that with a LPA for FIL only, OH and whoever else is an attorney has a duty of care to FIL and no duty of care to MIL. So they need both.

margaretclare

What 'other decisions that need to be made re her care'?

I would hope that any decisions can be made by her medical team and her husband as her next-of-kin, taking into account her wishes when she was still able to express them. Unless he too has lost mental capacity, which doesn't sound as if it's the case?

Mojisola

What would happen if FIL started to fail and the POA needed to be registered while MIL is still alive?

Could FIL's attorney make decisions about MIL as if he/she were FIL or would a court of protection order be needed then?

CATS

So here is what I am thinking:

MIL has already lost mental capacity therefore is it worth doing a court of protection or not?

House in both names, bills in joint accounts etc

FIL still has mental capacity so we want him to apply for lasting power of attorney before something happens to him and he loses capacity.

Should we just get him to apply for POA and forget the court of protection?

What heppens if FIL wants to sell the house whilst MIL is still alive but has no mental capacity? would we need a court of protection then for her?

securityguy

My parents operated a full-on Court of Protection order for my grandmother, who had been widowed many years previously and therefore had everything in her sole name. She had a stroke, having resisted setting up a PoA because "she wasn't old" (she was in her mid-seventies at the time).

It's not a trivial thing to operate, and certainly inspired everyone who came into contact with it to get PoAs set up. It has extensive accounting obligations which would be a challenge for many people to manage without professional help (this was twenty years ago; things may have changed). If you can function without one, then it's probably worth trying. You can always get one later if you need it.

Mojisola

CATS wrote: »

What heppens if FIL wants to sell the house whilst MIL is still alive but has no mental capacity? would we need a court of protection then for her?

Yes. Someone would need to sign the paperwork on her behalf.