Court of Protection Question

denyse_marston

I am in the process of applying for deputyship for my MIL who has dementia and whilst applying for this came across something of interest to me regarding my Dad who passed away in June of last year.
My Dad passed away leaving a wife and a step daughter the latter was the executor of their will which apparently they made with Age Concern in 1996 I do not object to her being the executor for her mother's will but do with my Dad who they both exploited financially for many years.
Just prior to his death, the step daughter emailed me and said she needed me and my 4 children to sign a document because of some legal change to POA in 2007 the email said she just had to update it, I naturally wanted more information and pointed out that the page of the will she sent to me had the wrong address on it!! She said if we weren't prepared to sign the document she would ask my first cousins and despite giving her our addresses we heard nothing else.
During my application to COP I was required to notify 3 relatives of my application and send them the documents to sign only if they objected to my application and this sort of made perfect sense why we never heard anything else after giving our addresses because whilst I wouldn't object to her having POA for her Mum we would have all objected to her being POA for my Dad as she has a history of bad debts which he paid off for her, she simply was not suitable to take over his finances. Because she notified my cousins of her intention means that she notified 2 people when there were at least 6 closer relatives on the next of kin scale as step children are not considered on the next of kin list, so I can only conclude she knowingly and deliberately gave false information to the COP. My question is was she ok to do this and if not is there anything I can do about it now.

lisyloo

COP and POA are different things.
COP is done when the person concerned does not have the capacity to make their own decision about who looks after their affairs.
POA is agreed to willingly by someone with mental capacity to choose who is/are their attorney(s).

can you clarify the situation with the step daughter.
did your dad willingly agree to her being his attorney?

elsien

Even if she did do something dodgy, the OPG are not going to do anything about it now your father has passed away. It’s hard enough to prod them into action while the person is still alive. 

However as lisyloo says, LPA has to be freely given. Either you dad chose her, or she faked it and got someone to say he’d got capacity when he hadn’t. 

Either way, it’s not going to go anywhere now. 

jaks111

Most likely told the solicitors that the person regarding COP  had no other family 

that’s what my sister done and got away with it !!!!!! 

lisyloo

jaks111 said:

Most likely told the solicitors that the person regarding COP  had no other family 

that’s what my sister done and got away with it !!!!!! 

It’s not actually that easy with COP.
I had to get a GP to certify that my MIL had lost capacity and it cost £85.

Power of attorney might be more easily defrauded, but if you’re asking a court to issue a court order then they want evidence from someone qualified to give it.

denyse_marston

Thank you for the replies, I am well aware that COP and POA are different, my post actually said I was applying for Deputyship from the COP for my Mother-In-Law who is now in a nursing home having  lost capacity and we cannot find a will anywhere, so I am completely 'au fait' with what COP and POA are, what I said was whilst in the process of our application to the COP I discovered that the documents we had to send to other 'interested parties' only had to be returned if there were any objections to the application, I cannot believe that she did this and the la accepts her deceitful behaviour just because my Dad had died!! In answer to the question of whether my Dad agreed to her having POA I don't know because they won't let me see his will, but they probably did this without fully explaining to him the significance it would have, my Dad would not have been able to understand complex legal  matters and would have just trusted them to do the right thing I'm afraid, and just because he's now passed doesn't mean that they should not be accountable for lying to the COP and not informing his closest relatives (well that's my opinion anyway) yet another reason for them to be glad he died!!!!!

lisyloo

I’m confused (sorry might be my fault).
you had to fill out some paperwork for COP (which I’m familiar with)
so you think that she needed to do the same for POA?
sorry if I’ve misunderstood but that’s exactly how it reads.

lying to the cop?
why would she be lying to the cop or even talking to them if they had poa?
if they had poa then the court don’t need to get involved do they? as dad had already given his wishes

were you not in touch with your dad In 1996?

if your dad had capacity in 1996 and chose her to be his attorney then it doesn’t matter was that you think. It was his choice.

Sorry but I am unclear on why you think she needed to notify you or talk to the cop.

do you actually have any evidence that she lied to anyone?

bobster2

denyse_marston said:

In answer to the question of whether my Dad agreed to her having POA I don't know because they won't let me see his will

Sorry but I don't understand this? Why would seeing the Will be of any relevance?

POA is for people who are alive.

Wills are only relevant after someone has died. There should be nothing in a Will about POA. You can't have POA for someone after they have died.

The 2007 change was the replacement of the old Enduring Power of Attorney (EPA) system with the newer Lasting Power of Attorney System (LPA).

EPAs only covered financial matters, but now you can have an LPA for financial matters and an LPA for health and welfare.

Old pre-2007 EPAs are still valid - i.e. you can still register them with the OPG when someone loses capacity.

However, back in 2007 someone might have felt they needed to replace an existing EPA with an LPA and/or create a health and welfare one. The notification obligations might have changed slightly from EPA to LPA - not sure.

Many people didn't replace their EPA with an LPA because EPAs have some advantages (e.g. you can use them with banks unregistered with the OPG when the donor still has mental capacity - perhaps due to physical disability).

elsien

In England/Wales when setting up an LPA there is no obligation to inform anyone. That is the choice of the person setting it up. When a family member chose me, they made a decision not to inform other siblings. 

Personally, my view is that that may potentially cause more strife in the future, but it’s not my decision to make. 

Not being informed does not mean there’s anything dodgy going on. 

Are you in Scotland, where processes may be different? 

bobster2

lisyloo said:

Sorry but I am unclear on why you think she needed to notify you or talk to the cop.

There are obligations to notify relatives when you now register a pre-2007 Enduring Power of Attorney with the OPG (i.e. when the donor loses capacity). However, I'm not sure there were obligations to notify relatives when a pre-2007 EPA was initially drawn up.

However, now there certainly are obligations to notify relatives when you register a new post-2007 Lasting Power of Attorney. Technically you could complete the paperwork and keep it in a drawer - and the notification obligation would only kick in when you send it off to be register. But most people send them off right away.

(Register means slightly different things for each - you "register" an EPA once someone loses capacity. You normally "register" an LPA when its first created and then activate it when someone loses capacity.)

Keep_pedalling

bobster2 said:

lisyloo said:

Sorry but I am unclear on why you think she needed to notify you or talk to the cop.

However, now there certainly are obligations to notify relatives when you register a new post-2007 Lasting Power of Attorney. Technically you could complete the paperwork and keep it in a drawer - and the notification obligation would only kick in when you send it off to be register. But most people send them off right away.

The section of the LPA covering notifying others is optional there is no obligation for the donor to use it.