Is a power of attorney necessary?

Woolington

Hi all,
my stepdad is in a nursing home and has just been diagnosed with early Alzheimer's - sometimes he has very bright and lucid bits of the day, but mostly he's confused. He is also very old and in final stage heart failure.

He has consistently and point blank refused to sign any power of attorney over to anyone - he describes it as the last thing he has control of but really it isn't a problem as his rent is paid by standing order and he has no other monetary requirements. (he has made a separate declaration re. health)

He owns a house which he plans to visit in the summer and this also takes care of itself - all bills paid by direct debit. He has no money worries.

Stepson has been lobbying him to sell the house to release his share of the house
money to himself . These days stepdad becomes so frenzied that he says yes, but I'm not sure that he fully understands the implications ie no summer visits and his possessions to be sold.

Stepson has realised that power of attorney is needed and wants to set up a LPoA asap to enable him to sell the house.

Apart from to sell the house, does a LPA need to exist if stepdad has no money requirements? Might it be needed for funeral expenses for instance? From my understanding, attorneys are supposed to act in the persons' best interests and it really upsets me to think how stepdad is going to feel when he realises what's happened.

Any thoughts? (sorry it's long!)

Keep_pedalling

Yes, I would say a POA is going to be needed once he loses metal capacity, but I also believe we should all have LPAs in place well before we get to that stage of life.

The house may well need to be sold to pay for care costs, and without a LPA in place the only option is to go through the courts which is expensive and long winded.

There is no way that any proceeds of a sale should be used for anyone else other than your step father, as this falls under the deliberate deprivation of assets.

Woolington

There is no way that any proceeds of a sale should be used for anyone else other than your step father, as this falls under the deliberate deprivation of assets.

ohhh my saviour!! The rent comes out of a huge bank account, and alas, my father is very close to the end so that's not a problem. The planned house sale is purely because the son needs some instant funds - is that still 'deprivation of assets'?.

Owain_Moneysaver

Woolington wrote: »

The planned house sale is purely because the son needs some instant funds - is that still 'deprivation of assets'?.

Yes, and it would be outside the authority of the POA. The proceeds of the house sale must be kept separate from the attorney's own funds and administered for the benefit of your stepfather.

Anything else is theft - this is a case resulting in four and a half years in prison where the attorney sold the owner's house.

You must keep the donor’s finances separate from your own

You must apply to the Court of Protection for any other type of gift or donation, even if the donor has given them before. These include:

• paying someone’s school or university fees
• letting someone live in the donor’s property without paying market rent (anything they pay below market rent counts as a gift)
• interest-free loans

You must check that the donor can afford the gift or donation, even if they’ve spent money on these types of things before. For example, you can’t donate their money if that would mean they couldn’t afford their care costs.

https://www.gov.uk/lasting-power-attorney-duties/property-financial-affairs

There are also procedures where you can object to the registration of a POA

https://www.gov.uk/government/publications/object-to-registration-of-a-lasting-power-of-attorney

Keep_pedalling

Woolington wrote: »

There is no way that any proceeds of a sale should be used for anyone else other than your step father, as this falls under the deliberate deprivation of assets.

ohhh my saviour!! The rent comes out of a huge bank account, and alas, my father is very close to the end so that's not a problem. The planned house sale is purely because the son needs some instant funds - is that still 'deprivation of assets'?.

Not if he has enough other assets to support him, however an LPA must still only be used to the benefit of the donor, an attorney cannot make use the donors assets for themselves or make gifts to others.

Yorkshireman99

Woolington wrote: »

Hi all,
my stepdad is in a nursing home and has just been diagnosed with early Alzheimer's - sometimes he has very bright and lucid bits of the day, but mostly he's confused. He is also very old and in final stage heart failure.

He has consistently and point blank refused to sign any power of attorney over to anyone - he describes it as the last thing he has control of but really it isn't a problem as his rent is paid by standing order and he has no other monetary requirements. (he has made a separate declaration re. health)

He owns a house which he plans to visit in the summer and this also takes care of itself - all bills paid by direct debit. He has no money worries.

Stepson has been lobbying him to sell the house to release his share of the house
money to himself . These days stepdad becomes so frenzied that he says yes, but I'm not sure that he fully understands the implications ie no summer visits and his possessions to be sold.

Stepson has realised that power of attorney is needed and wants to set up a LPoA asap to enable him to sell the house.

Apart from to sell the house, does a LPA need to exist if stepdad has no money requirements? Might it be needed for funeral expenses for instance? From my understanding, attorneys are supposed to act in the persons' best interests and it really upsets me to think how stepdad is going to feel when he realises what's happened.

Any thoughts? (sorry it's long!)

A POA ceases upon death. The bank will pay the funerals costs direct.

unholyangel

First things first, POA expires upon death. At that point, it will fall to whoever he has named as executor (providing they accept of course) to deal with the estate and wishes of the deceased.

Next, you say stepson. Does your dad own the property outright or was it tenants in common with the stepsons mother who left your father a life interest in it?

Lastly, have you tried to speak to your dad on one of his more lucid days and explain that you know he doesn't want to give up control but has he considered that this actually gives him more control - even if he lacks capacity at the time to understand it. He can consider as many eventualities as he likes so that you both have the peace of mind that you're doing what he would have wanted. Also, has he considered what might happen if he doesn't exercise what control he can now?

I'd be hesitant to badger him, but I would impress upon him that alzheimer sufferers can have just the odd bad day and then very quickly deteriorate over a very short period.

Woolington

There are also procedures where you can object to the registration of a POA[

I]Not if he has enough other assets to support him, however an LPA must still only be used to the benefit of the donor, an attorney cannot make use the donors assets for themselves or make gifts to others.[/I]

that is such a relief! thank you both!

A POA ceases upon death. The bank will pay the funerals costs direct.

thank you!

Does your dad own the property outright or was it tenants in common with the stepsons mother who left your father a life interest in it?

yes, he has sole ownership since my mum died and it has no mortgage.

Lastly, have you tried to speak to your dad on one of his more lucid days and explain that you know he doesn't want to give up control but has he considered that this actually gives him more control

yes, but when I also point out that his son is coercing him into selling his house and not acting in his best interests even I find it hard to recommend it!

Since him being poorly I've taken charge of all his needs - including his mail and his finances - standing orders in place, bills filed etc. Barring any major expense I can muddle through - it's hard to predict what events might actually need a LPA. Is it just foolhardy to not have one?

Linton

The rules of LPA, especially once the donor becomes mentally incapable of making decisions for himself, require that the attorney act strictly in the best interests of the donor. Attorneys have been sent to jail for enriching themselves at the expense of their donor. Any concerns can be reported to the Office of the Public Guardian or Court of Protection.


You will almost certainly at some point need the LPA to continue to fully manage his affairs. Much much easier and cheaper to sort it out now than when he has lost capability.

Malthusian

Woolington wrote: »

Is it just foolhardy to not have one?

Yes, and based on a silly idea that signing an LPoA somehow involves giving up control, when it is the complete opposite. When you lose capacity, someone is going to take control of your affairs; completing a Lasting Power of Attorney gives you control over who that is.

Your stepdad says that power of attorney is "the last thing he has control of" - by not making a Power of Attorney he is giving up that control to the Government, in the form of the Court of Protection. At great personal expense - Court of Protection fees are much higher than LPoA fees.

badmemory

Isn't there an old blog of Martin's about HIS POAs? And it would be difficult to find anyone who appears to need one less. If he thinks it should be done who am I to argue?



I have both & hopefully they will never need to be used. But I want to know that my savings are not going to get stuck on 0.1% interest just because I am unable to sort it myself & I don't want to be brought back with 3/4 of my brain gone because no-one was able to say SHE DOESN'T WANT THAT and make it stick!