LPA for my 91 year aunt - solicitor declining to release

Daniel54

My aunt is  has capacity but is diminished physically and cognitively following a stroke.I and my sister are joint and several attorneys ( finance and health )

She has verbally asked me to assist with her finances as she is no longer able to cope

I have asked the solicitors holding the original to provide to me both the original and a certified copy , which I am happy to pay for.There is increasing urgency for this so that I can act in her best interests ( she recently overlooked renewing her house insurance )

I have explained the situation to the solicitors but they are asserting that they require her written permission ( and in the case the case of mental incapacity a doctor’ s written confirmation ) before releasing the LPA to me.

They are saying they are professionally obligated to follow this course,but I can find no reference under standard LPA terms for the certifier to require this level of proof

I would appreciate any guidance on this,otherwise I am faced with a 4 hour round trip to ask my somewhat confused aunt to sign a relevant permission 

I had assumed that once the LPA was registered ,which it has been for 5 years,then I could call upon it without hindrance once the need arises.

elsien

You can’t act in her best interests if she has capacity - the two are mutually exclusive. That’s not me nitpicking, that’s what the law says so if you are talking about best interests to the solicitor while saying she has capacity, it’s not going to help. 

You can act for her with her consent if she has capacity which is why the solicitor is checking what the current situation is and needing confirmation as to which it is. Probably not helped by you contacting them instead of your aunt, who their contract is actually with. They are treating her a capacitous adult and waiting in her direct instruction unless evidenced otherwise. At the moment, it’s her paperwork not yours.

Does the LPA allow for you to act for her while she has capacity, as some are set up that they only kick in when the person loses capacity. 

If she has capacity around the decision then would she be able to contact the solicitor directly to give the instruction? Or just sign a letter and post it to you? 

If she’s too confused to sign the relevant permission then you may need to revisit that capacity assessment, 

Daniel54

Thank you for your reply  which is appreciated

From my perspective capacity and best interests are not mutually exclusive.If you can show me the relevant law, that would be helpful

I am not seeking to take over the entirety of her finances but sit alongside her in the areas such as council tax, home insurance and income tax where she is struggling to manage and there are potentially negative consequences for omission/non compliance

Due to very poor hearing it is not possible to have a meaningful conversation on the phone and she has no internet presence.So my communications with her must be face to face or in writing.Post stroke, she is verbally compromised and finds it hard to write.

Are you sure that as her attorney I have no rights to the paperwork? I have not been able to find anything to that effect.

If you are correct, then this persuades me not not to lodge my own LPA with my solicitor.

My aunt's  LPA is not dependent on capacity

I dealt/assisted with my late mother finances ( pre and post loss of capacity) under an EPA and had no problems, but in that case I had the original document to provide to the relative agencies/authorities.

alicef

Here is my understanding of LPAs

'With the Property and Financial Affairs LPA, all the while you retain mental capacity you remain in charge and your Attorney(s) can only act with your consent.  However, if you do go on to lose mental capacity this is when they can act for you automatically.

With the Health and Welfare LPA, it can only be used by your Attorneys if you are deemed mentally incapable of making a specific decision regarding your health and welfare (including life-sustaining treatment).'

I only act for my mum in respect of Health and Welfare - I have always sought my mum's decision wrt to her H&W - to do otherwise, my understanding is it would require 2 doctors to state that she is incapable of making these decisions for herself.  I can't comment on financial aspects. 

My mum would regularly not pay bills due to some personal angst or other - myself and other siblings would step in and cover these from our finances.  

My understanding is that is isn't your call as to 'best interests', it is your aunt's, until such time as she has been deemed 'mentally incapable'.

Daniel54

Thank you for your helpful response

I agree with your understanding with regard to health.My aunt is capable of making her own decisions whist retaining capacity and as attorneys we have no right to override those decisions.

I think the situation regarding lack of capacity ( health and finance ) is pretty clear.

Like you I am happy to cover amounts due from my own finances,but she has ample funds and I don’t want to accumulate debts from her to me ,although I would carefully document them

I don’t think there would be any doubt eg  that leaving her £ 750k house uninsured would not be in her best best interests. That is the context in which I am using the term. 

I cannot guard against this happening unless I can use my attorney powers to obtain oversight.For this I need the LPA as a document.

My concern is that the solicitors are acting as gatekeepers to my exercising of my attorney mandate,but I can find nothing to authorise them to do so.

The EPA was  for my mother was  lot more straightforward,but I understood that an LPA should be  easier as it is registered at the point of lodging with the OPG.This appears not to be the case.


 

elsien

Mental Capacity act, which is what the LPA falls under. 

The presumption is that someone has capacity unless evidenced otherwise. If they have capacity, they make their own decisions - that is the default position, That decision may include help such as asking their LPA to do the financial things  they are struggling with themselves, for various reasons. My grandmother asked her LPA to step in while she still had capacity because she just couldn’t be bothered any more. 

But that is still their decision, in the same way that no one can support you with your finances without you agreeing to a third party mandate, for example. 

There is nothing wrong in how you  are proposing to support your aunt, if that is what she wants you to do. Have you talked to her about the areas that she wants you to step in with?

You have the right to the documents when your aunt says that you can, or when she loses capacity and the LPA kicks on because she can no longer consent. All the solicitor is doing is double checking that your aunt is agreeable at this stage. 

You don’t have a mandate to use the LPA until your aunt says that you do, while she has capacity around her finances. 

They are not gatekeeping. They have to act on your aunt’s instruction, which is what they are requesting, as with any legal document. 

thegreenone

My late Mum requested a home visit from her solicitor to sort her LPA.  They did and it was all finalised.   Perhaps that's an option? 

It was as Covid was hitting hard and just before the first lockdown.  Don't be fobbed off.  They can do it. 

MovingForwards

Can you write or type a letter and have your aunt sign it? 

Alternatively, if the originals are not registered, prepare new ones yourself and register them, again your aunt will need to sign them.

Daniel54

MovingForwards said:

Can you write or type a letter and have your aunt sign it? 

Alternatively, if the originals are not registered, prepare new ones yourself and register them, again your aunt will need to sign them.

Thanks

That  what I will now do.Visiting her this  Friday now and then on to the solicitors.Willl check the signed letter ticks  their boxes 

Daniel54

thegreenone said:

My late Mum requested a home visit from her solicitor to sort her LPA.  They did and it was all finalised.   Perhaps that's an option? 

It was as Covid was hitting hard and just before the first lockdown.  Don't be fobbed off.  They can do it. 

I’ve Been quoted £290;for a  home visit from the solicitor,and am not sure how I can prepare her for this.Probably bettter I sacrifice my time and go and deal with this on the spot

Daniel54

elsien said:

Mental Capacity act, which is what the LPA falls under. 

The presumption is that someone has capacity unless evidenced otherwise. If they have capacity, they make their own decisions - that is the default position, That decision may include help such as asking their LPA to do the financial things  they are struggling with themselves, for various reasons. My grandmother asked her LPA to step in while she still had capacity because she just couldn’t be bothered any more. 

But that is still their decision, in the same way that no one can support you with your finances without you agreeing to a third party mandate, for example. 

There is nothing wrong in how you  are proposing to support your aunt, if that is what she wants you to do. Have you talked to her about the areas that she wants you to step in with?

You have the right to the documents when your aunt says that you can, or when she loses capacity and the LPA kicks on because she can no longer consent. All the solicitor is doing is double checking that your aunt is agreeable at this stage. 

You don’t have a mandate to use the LPA until your aunt says that you do, while she has capacity around her finances. 

They are not gatekeeping. They have to act on your aunt’s instruction, which is what they are requesting, as with any legal document. 

Thank you for your considered reply.

I think full mental incapacity is fairly binary,but there are gray areas where there is reduction 

In terms of my own LPA it fortifies me in my  now view from this experience that I no longer wish my soliciror to keep the original ,but a certified copy..I have entrusted my attorneys (adult children) under the LPA  to act as appropriate ,should they need to do .If they cannot represent me without the intervention of a solicitor,then that is not in accordance with my wishes.

Yes,I have talked with my aunt.Day to day expenditure is not an issues,and I would not intervene.Regular obligations( insurance,tax etc ) she is finding hard to manage

From experience with my own late and aged parents,I don’t think this is a binary question.You can still maintain mental capacity but with older age find it hard to manage numbers.Doesn’t stop you going to to the cash machine,but a lot more challenging if you are doing HRMC self assessment for example

So I ended up dealing with the accountants under my POA

looks like I’m doing the 4 hour round trip on Friday to sort this out.

ironically I will need to send the solicitor a draft of the letter to them that my aunt will need to sign