Advice on Power of Attorney 24 June 2021 at 12:54PM in Marriage, relationships & families 10 replies 202 views

Imnoexpert_2

I have been asked by a longstanding family friend to do Power of Attorney forms for her mother who is currently in a care home. I would be the person who does the forms but not be an Attorney and would be an 'honest broker' to ensure that The Mother's wishes were carried out. I feel confident to do this however there are a few parts to this that are not straightforward and which I wondered if anyone more experienced and knowledgeable would care to comment on.

I haven't seen The Mother for two years (due to Covid) so I will need to be confident that she understands about POA and the decisions she is making and is sufficiently mentally competent to sign the forms. I have been told by family members that she is, but her behaviour has been a bit odd lately. So how do I cover myself on that front?

There is a certain amount of friction within the immediate family. There are four children some of whom don't speak to others, and some who don't offer practical help like looking after finances or visiting Mum but I think will be the first to throw brickbats if anything is done they disagree with (which is a good reason for the POA). I'm not on bad terms with any of them and would propose to find out what Mum wants to do, fill in the forms and notify them all by letter to explain things, enclosing the official "People to Notify form" which allows them to object of they wish. Does this cover me and whichever son(s) or daugter(s) are appointed Attorney(s) from any come-backs from the others?

Anything else I should watch out for?

To avoid doubt I should say again I really am an honest broker and have no financial or emotional interest in the affair. I would be the "Certificate Provider" (which the form says should be a professional such as a Doctor or Lawyer) I am a professional but in neither of these occupations. The family can't afford a solicitor and I would be claiming exemption from the fees for Mum. I want her well-being to be central rather than feuds between the siblings. If there was a solicitor or social services or charity who would do this or indeed if any of the siblings wanted  to pay to have it done I would happily step aside. The care home as I understand it are not able to get involved in the process. Could anyone object to my being the Certificate Provider? Is there an organisation that does this for free?

Thanks for any comments

Bossyboots

My MIL's hairdresser was her certificate provider.  Are you using old guidance as the need for a doctor or lawyer to be certificate provider was removed some time ago.  You need to establish that at the time the mother signs the form she has the capacity to understand what she is doing.  This would be where you might meet a challenge but odd behaviour and even a dementia diagnosis does not necessarily mean a person does not have capacity. 

Keep_pedalling

If you have not seen her for 2 years I don’t really see how you can be her certificate provider without verifying her mental capacity. Is there any chance you would be allowed to visit her to make sure her mental state has not declined since you last saw her.

The obvious CP would be her GP but they would charge to do it.

elsien

If there is likely to be a challenge to the LPA on capacity grounds then you need to consider very carefully how you evidence your belief that she does know what she’s doing, for future reference. 

Are there any professionals involved with her at all other than the care home? 

Capacity is based on being able to understand the salient points, remember them for long enough to weigh up the pros and cons, and communicate the decision. I’d suggest more than one visit to talk things through because if she says different things each time you have an issue which will need exploring a little more fully. 

Also, is mum happy for you to be involved. The bottom line (as I’m sure you know) is whether she wants an LPA at all - not everyone does, even where those around them think it’s a great idea- and who she wants to act for her, which may be different to what the family are suggesting and could potentially not be any of the sons or daughters. 

bouicca21

TBH I’d be suspicious of anyone asking me to be a certificate provider if I hadn’t seen the person for a year let alone 2 years.  And it would be so easy to challenge if siblings fall out - and if there is already friction between them, that’s quite likely, isn’t it? It’s worth getting the GP to do it - much easier to defend later on if competence to grant the PoA ever becomes an issue.

sheramber

If she is in a care home the doctor who attends could confirm that she is  mentally competent to sign the forms.

elsien

sheramber said:

If she is in a care home the doctor who attends could confirm that she is  mentally competent to sign the forms.

From experience, they are likely not to want to. Because if there is a query, they would need to show she understands specifically what an LPA is and what it means and GPs tend not to have that level of discussion their role is around health not legal matters. There isn't a blanket competent/not competent, it's time and decision specific. 

Annisele

Could anyone object to you being the Certificate Provider? Yes, of course - any of her children could, along with various other people. That objection may or may not stick, but if you're looking for some kind of guarantee that you stepping up won't cause you any hassle, you're unfortunately not going to get one.

If all of the children had approached you jointly, or if the mother had approached you herself about this, I might feel differently. But you haven't seen her for a couple of years, and it sounds as though one (only) of some feuding children have asked you. The situation sounds pretty much guaranteed to produce hassle and bad feeling.

Imnoexpert_2

Thanks for your thoughts.

I should have made it clearer that The Mother has approved my being the certificate provider and that although the care home hasn’t previously allowed me to visit because of Covid I will be seeing her next week.

Bossyboots is right that I can be the certificate provider. I misread the form.

Elsien very helpful. I will talk to her, complete the forms and then go back a week later to confirm her decisions. Also re-checking her understanding. As you say she may not want a POA. It may involve choosing one child over another and upsetting people. her choice.

Annisele you are right there is scope for hassle. I’m sufficiently distant from the issues and strong minded to cope though. If I am confident I’ve covered the bases I’ll be ok.

If anyone objects the court of protection can decide. that’s what it’s there for.

Keep_pedalling

Imnoexpert_2 said:

Thanks for your thoughts.

I should have made it clearer that The Mother has approved my being the certificate provider and that although the care home hasn’t previously allowed me to visit because of Covid I will be seeing her next week.

Bossyboots is right that I can be the certificate provider. I misread the form.

Elsien very helpful. I will talk to her, complete the forms and then go back a week later to confirm her decisions. Also re-checking her understanding. As you say she may not want a POA. It may involve choosing one child over another and upsetting people. her choice.

Annisele you are right there is scope for hassle. I’m sufficiently distant from the issues and strong minded to cope though. If I am confident I’ve covered the bases I’ll be ok.

If anyone objects the court of protection can decide. that’s what it’s there for.

It is unlikely that anyone can block the application, it is no longer a requirement that anyone has to be informed that the application is being applied for. 

It sounds like she knows exactly what she is doing, and having LPAs in place she knows any decisions being made are being done so by the people she trusts, not leaving it to chance with a bunch of squabbling siblings.

Hopefully she has made the right choice of executors in her will as well.

bouicca21

Having been through the process just before pandemic I can say that the only people who are informed of the application are the named attorneys, and only after they confirm their willingness to act is the LPoA put in place.

My certificate provider was a friend, but since I’m not in a care home and demonstrably still have all my marbles in place, plus my attorneys are also executors and beneficiaries in my will, I doubt there could be any grounds to dispute my capacity.