Lasting Power of Attorney

Linton

tacpot12 wrote: »

Sanemumoffive's advice contains a small problem - in the section that says . Section 12 of the Mental Capacity Act 2005 prevents the LPA from giving the power to make gifts other than for customary occasions eg birthdays, marriages. Any gifts that the donor has been in the habit of making to individuals prior to losing capacity cannot be continued by the attorney. (The attorney can continue to make donations to charities).

If the donor is currently supporting someone financially, and this person is dependent on this financial support, some other way of providing financial support will have to be found as the 'gifts' can't be continued by the attorney.

Interesting.

Though I checked up on the letter of the law and it doesnt actually say that existing arrangements must be ceased. What it says is that the attorney does not have the authority to make gifts except under the specific circumstances. Now what happens if the gifts are made by standing order set up by the donor when he/she had mental capacity? Under these circumstances the attorney isnt making the gifts and so could it be argued that continuing the gifts isnt counter to the Act?

securityguy

"Now what happens if the gifts are made by standing order set up by the donor"

Or more transparently, what happens if the power of attorney explicitly contains a clause "I authorise my attorney to pay £X00 pounds per month to ..."

But yes, I'd take a hell of a lot of convincing that if someone currently, say, pays their grandchild's school fees or indeed their own child's university expenses, that an attorney couldn't continue that. In reality, assuming it's an enduring power of attorney and not one issued by the court of protection, the issue is not "what can I do?" but "who is going to complain if I do this?".

Malthusian

tacpot12 wrote: »

Any gifts that the donor has been in the habit of making to individuals prior to losing capacity cannot be continued by the attorney.

That's not what the official guidance says. What the official guidance says is that such gifts have to be approved by the Court of Protection. I do not have enough direct experience to say how common it is for the Court of Protection to say "No".

But if the gift a) is within the donor's means and makes no difference to their standard of living b) was customary for them before they lost capacity and c) was explicitly authorised in the power of attorney I would be quite surprised if the Court of Protection said you couldn't do it.

If the donor was making a regular gift via standing order and cancelling it makes zero difference to their standard of living because they already have ample income / funds to cover their needs, then what the attorney is essentially doing is making an unauthorised gift to the beneficiaries of their Will. This is a philisophical point and not a legal one.

getmore4less

if not done already have a read.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/641130/Gifts-practice-note-02-2012.pdf

securityguy

Thanks, gm4l. Section 7 answers my question about education costs and so on: if it's in the document, it's OK.

getmore4less

securityguy wrote: »

Thanks, gm4l. Section 7 answers my question about education costs and so on: if it's in the document, it's OK.

There are a lot of guides, practice notes and general information on how the legislations should be interpreted by attorney and deputies.

none are that hard to find.

another good one that outlines the framework
https://www.gov.uk/government/publications/safeguarding-policy-protecting-vulnerable-adults/sd8-opgs-safeguarding-policy

Yorkshireman99

getmore4less wrote: »

There are a lot of guides, practice notes and general information on how the legislations should be interpreted by attorney and deputies.

none are that hard to find.

another good one that outlines the framework
https://www.gov.uk/government/publications/safeguarding-policy-protecting-vulnerable-adults/sd8-opgs-safeguarding-policy

There are also piles of unhelpful listings from companies posing under official sounding names to try and trap the unwary into paying for services that are free.