Lasting Power of Attorney

green_man

I'm in the process of setting a Financial Lasting power of Attorney up for my Mother. For anyone that has done this or knows a process well I have a few queries.

1 - In our case we want to set up the LPA but not activate it yet, it will only be activated if/when my Mother loses her mental capacity. What is the process for activating the LPA, does a doctor need to be involved etc.

2 - If and when the LPA is actually activated how then does this work, presumably I cant just start signing my mothers cheques.
Do I need to then start informing Banks/council etc and no doubt filling in a whole host of other forms?

3 - The bank will allow us to set up a Third party on my Mothers account. This would be free and may allow me to do much of what a LPA would do (though obviously not sell the house etc). Has anyone done this? Pros/Cons vs LPA?

LXdaddy

green_man wrote: »

I'm in the process of setting a Financial Lasting power of Attorney up for my Mother. For anyone that has done this or knows a process well I have a few queries.

1 - In our case we want to set up the LPA but not activate it yet, it will only be activated if/when my Mother loses her mental capacity. What is the process for activating the LPA, does a doctor need to be involved etc.

2 - If and when the LPA is actually activated how then does this work, presumably I cant just start signing my mothers cheques.
Do I need to then start informing Banks/council etc and no doubt filling in a whole host of other forms?

3 - The bank will allow us to set up a Third party on my Mothers account. This would be free and may allow me to do much of what a LPA would do (though obviously not sell the house etc). Has anyone done this? Pros/Cons vs LPA?

I've recently done LPAs for my father (or maybe I've helped my father set up his LPAs as he doesn't have internet and I do) My brother and I are the attorneys.


Once the LPA is registered it is in force. However the Attorneys can only act in the Donor's best interests when he/she lacks the ability to act for him/herself.


Practically you would have to take the LPA to each of the financial institutions and get it recorded on their systems against each of your mothers accounts. If you are the only attorney it would then allow you to act on your mother's behalf. If there is more than one Attorney then the LPA specifies how they need to act - individually or jointly and severally.


Yes you could sell her house once the LPA is registered but ONLY if that was in her best interests.


I don't believe that you need a doctor to confirm incapacity to use the authority granted by an LPA.

xylophone

https://www.gov.uk/power-of-attorney/overview

green_man

Once the LPA is registered it is in force. However the Attorneys can only act in the Donor's best interests when he/she lacks the ability to act for him/herself.

There was a checkbox on the form :

Only when I don’t have mental capacity

We currently have this checked rather than the "activate as soon as registered"

Seems a bit confusing, as surely most of these are set up when initially the donor is of sound mind, hence no imminent need for the form.

Linton

green_man wrote: »

I'm in the process of setting a Financial Lasting power of Attorney up for my Mother. For anyone that has done this or knows a process well I have a few queries.

1 - In our case we want to set up the LPA but not activate it yet, it will only be activated if/when my Mother loses her mental capacity. What is the process for activating the LPA, does a doctor need to be involved etc.

2 - If and when the LPA is actually activated how then does this work, presumably I cant just start signing my mothers cheques.
Do I need to then start informing Banks/council etc and no doubt filling in a whole host of other forms?

3 - The bank will allow us to set up a Third party on my Mothers account. This would be free and may allow me to do much of what a LPA would do (though obviously not sell the house etc). Has anyone done this? Pros/Cons vs LPA?

I have an Enduring Power of Attorney for a relative and am in the process of getting it registered because of lack of mental capacity.

Q1. Thereis no process for formally recording or proving the loss of mental capacity. It is based on your belief. The donor is notified and has the opportunity to object.

Q2. My relative's bank has told me there could well be problems if someone else signs the account owners cheques so this is not recommended. The bank gave me a debit card in my name for my relative's accounts and I also have online access to his accounts. So if I cant pay by debit card or direct transfer I pay by cheque and refund myself from my relative's account. You will need to discuss your options with her bank. So the bank certainly needs to be informed; these days banks seem to manage PoA efficiently without any problems. Other people may have to be informed as the need arises, and in general are satisfied with a copy of the PoA document.

Q3. I assume "third party" corresponds to debit card and online access, and possibly a cheque book in your name on your mother's account. This is fine before she loses mental capacity during which time I believe you should only act on her direct instructions to protect yourself as much as her. However after she loses mental capacity it would be wrong (and I guess illegal) to spend her money without the proper authority to do so. So to avoid sitgnificant hassle PoA does need to be setup before mental capaity is lost.

Linton

green_man wrote: »

There was a checkbox on the form :

Only when I don’t have mental capacity

We currently have this checked rather than the "activate as soon as registered"

Seems a bit confusing, as surely most of these are set up when initially the donor is of sound mind, hence no imminent need for the form.

An active PoA can be very useful if the donor loses physical capacity- eg going blind.

LXdaddy

Linton wrote: »

An active PoA can be very useful if the donor loses physical capacity- eg going blind.

Yes the physical capacity is a concern too. My father exhibits no signs of losing mental capacity. But he is becoming less confident in his driving and I can see a time when he could effectively be confined to the house. Under those circumstances then one of his attorneys would need to do any visits to banks on his behalf.


I had forgotten the question on the form about when does the LPA come into force. We chose the "As soon as my LPA is registered" rather than "Only when I don't have mental capacity" There is a warning under the second that it can be much less useful as the attorney might be asked to prove the lack of mental capacity each time they try to use the LPA.

kidmugsy

Forgive my ignorance, but what happens if one holds an old-fashioned POA, early eighties vintage? Is it now ineffective?

BobQ

kidmugsy wrote: »

Forgive my ignorance, but what happens if one holds an old-fashioned POA, early eighties vintage? Is it now ineffective?

My understanding is that an Enduring PoA can still be registered when needed as someone above has apparently done.

What is an "Old fashioned POA". My understanding is that an ordinary POA cannot be used if the person has lost mental capacity. An Enduring POA created after the Act in 1985 can still be registered if the donor lacks capacity but you cannot create one now.

If it were before 1985 you may need to go to the Court of Protection.

Re the comment about selling a house:

A LPA can be used to sell the donors house or anything else but only if the LPA allows this to happen by not excluding it. It is perfectly possible to create and activate a LPA so that one of the Attorneys has limited authority to operate a current account while two Attorneys can jointly do anything (eg close and open accounts and buy/sell assets).

Of course all of it needs to be done in the donors best interests

LHW99

Existing enduring POA's are still legal and can be registered when required.

I had a 3rd party mandate on my late mother's current account, which meant I could query things on her bank statements, arrange to pay credit card or other bills, and set up / change direct debits or S/O's if required.
I also had an enduring POA, which in the end was not registered, as she went downhill very quickly.

green_man

The physical aspect isn't something I had really considered, but I could see how this would be useful.

I'm also thinking that the "only activate when mentally deficient" option may in fact turn out to be somewhat limiting.

The most practical option would be to activate this immediately. I had not thought about doing this as I didn't want my mother to feel she was losing control of anything (though she trusts me implicitly).