LPA Concerns

Sorry in advance, this is a long one.  About two years ago my elderly parents took out an LPA for health and welfare, which has my brother and I named joint and severally as their attorneys.  Whilst I did the application online, they both received independent advice from their solicitor, who also witnessed their signatures.  This was successfully registered and the LPAs are locked away in their safe.  So far so good....  About a year ago my mother started showing signs of dementia; nothing too serious, but enough for her to be referred for further diagnosis.  Unbeknown to us, some months after being referred, but before official diagnosis, they went to an independent financial advisor, who advised they should change their property from joint ownership to Tennant in Common (I think).  Again, we are more than happy for this, as it sounds like a good idea and their advisor drew up new wills, I assume to accommodate this change.  Again, all sounds okay.  However, the advisor then suggested they change the LPA, so that my parents are sole primary attorney for each other and that my brother and I be joint reserve attorneys.  We were not aware any of this was happening until asked to sign the new LPA.  Whilst for various reasons we felt uncomfortable about the change, as our mother was awaiting a dementia diagnosis, we respected our parents decision so went to a meeting with their advisor to sign the paperwork.  It transpired that our parents had told their advisor that mum had been given the all clear, which was obviously not true.  The advisor said it did not matter as he was confident she understood the consequences of what she was doing.  So in April this year we reluctantly signed the LPA and a few weeks later my mother was diagnosed with late onset Alziemers.  Six months on, we had not had any notification from the office of the guardian, so I suggested they get in contact with their advisor.  I now hear that there was an error in the signing date and it's been rejected.  They originally signed the forms before my brother and I, so the application was dated before  the date we signed, causing the application to be rejected.  My parents have resigned, but still failed to mention my mother's dementia diagnosis, so my father's primary attorney is my mother, who doesn't have the capacity.  This is all complicated still further, as we are not entirely confident my father will make decisions in my mothers' best interests, as he wants them to move into a retirement village, which my mother is dead set against, as she hates change.  I'm cross with myself for not being stronger with my parents six months ago when I found out what they planned, but it looks as though it will be another 20+ weeks before the lpa can be registered, which given my mother's condition, might be a serious issue.  I feel their advisor should have known the importance of getting the dates right and I'm uncertain how my mother's diagnosis affects the validity of this LPA.  I spoke to the advisor today and it seems they are uncertain whether the existing lpa we set up is still valid.  If anyone has any thoughts on this I'd be very interested.  Thanks

Comments

  • tacpot12
    tacpot12 Posts: 7,854
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    The existing LPA remains valid. An LPA can only be ended by the Donor (and only if they have capacity) by making a Deed of Revocation, or by the Court of Protection if the LPA was made fraudulently or used against the interests of the Donor. An attorney can cause the LPA to be ended if they die or disclaim their role and there are no other donors who can act for the Donor. 

    I think your best action at this point is inaction. Use the existing LPA if you need to help your mother, but bear in mind the late onset Alzheimers is a diagnosis, and doesn't necessarily mean that she doesn't have capacity to make certain decisions. 

    I would not help your mother to make a new LPA, unless she asks for your help to do so independent of your father. 

    The advisors should have know about the important of getting the dates wrong, and your parents have a valid complaint against them if they have been charged to make new PoAs.


    The comments I post are my personal opinion. While I try to check everything is correct before posting, I can and do make mistakes, so always try to check official information sources before relying on my posts.
  • Malthusian
    Malthusian Posts: 10,838
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    edited 31 October 2023 at 11:50AM
      About two years ago my elderly parents took out an LPA for health and welfare, which has my brother and I named joint and severally as their attorneys. 

    Just the two of you and not each other? That's rather unusual. 

    Only health and welfare? Not Property and Finance as well?

    I feel their advisor should have known the importance of getting the dates right and I'm uncertain how my mother's diagnosis affects the validity of this LPA

    Well, the adviser was willing to say she had capacity. "Signs of dementia" does not constitute a loss of capacity. Unless the doctor is willing to state that her dementia was so severe at the time of the appointment that she could not possibly have had capacity at the meeting a few weeks earlier, I don't see much grounds for challenging its validity.

     I spoke to the advisor today and it seems they are uncertain whether the existing lpa we set up is still valid. 

    I'm not certain either, but this website suggests it is - somewhat bizarrely. 

    Willpack.co.uk said: The creation of a new LPA does not itself explicitly revoke a previous LPA or EPA. A Deed of Revocation is usually required, and some steps will need to be followed.

    But practically speaking I don't think that helps you. If you go to her healthcare provider with an old LPA naming you, and your father goes to them with a new one, and if the two of you are in conflict, then either the healthcare provider will refuse to speak to either of you until the Court of Protection instructs them how to proceed, or they just speak to your father. 

    Did they do Property & Finance LPAs with the advisor or just Health and Welfare again?

    The reality is that your father is, as it stands, going to be her primary carer if/when she loses independence, and even if the new LPA is invalid and you are her attorney, you can't force him to keep that house because she hates change. Legally speaking he could force a sale of the house, move to a retirement village with his half of the proceeds, and she would have the choice of either joining him or going her own way (at which point you as Attorney might have to step in if she can't handle that herself). This is a pretty unlikely nuclear scenario, but it illustrates the importance of working together with your father if you possibly can.

  • Keep_pedalling
    Keep_pedalling Posts: 16,226
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    Sorry in advance, this is a long one.  About two years ago my elderly parents took out an LPA for health and welfare, which has my brother and I named joint and severally as their attorneys.  Whilst I did the application online, they both received independent advice from their solicitor, who also witnessed their signatures.  This was successfully registered and the LPAs are locked away in their safe.  

    So far so good....  About a year ago my mother started showing signs of dementia; nothing too serious, but enough for her to be referred for further diagnosis.  Unbeknown to us, some months after being referred, but before official diagnosis, they went to an independent financial advisor, who advised they should change their property from joint ownership to Tennant in Common (I think).  Again, we are more than happy for this, as it sounds like a good idea and their advisor drew up new wills, I assume to accommodate this change.  

    I am willing to bet this advisor is not an IFA, IFAs do not draw up wills. Having said that the original LPAs really should have had 3 attorneys appointed not just two.  

    Again, all sounds okay.  However, the advisor then suggested they change the LPA, so that my parents are sole primary attorney for each other and that my brother and I be joint reserve attorneys.  We were not aware any of this was happening until asked to sign the new LPA.  Whilst for various reasons we felt uncomfortable about the change, as our mother was awaiting a dementia diagnosis, we respected our parents decision so went to a meeting with their advisor to sign the paperwork.  It transpired that our parents had told their advisor that mum had been given the all clear, which was obviously not true.  The advisor said it did not matter as he was confident she understood the consequences of what she was doing.  So in April this year we reluctantly signed the LPA and a few weeks later my mother was diagnosed with late onset Alziemers. 


     Six months on, we had not had any notification from the office of the guardian, so I suggested they get in contact with their advisor.  I now hear that there was an error in the signing date and it's been rejected.  They originally signed the forms before my brother and I, so the application was dated before  the date we signed, causing the application to be rejected.  My parents have resigned, but still failed to mention my mother's dementia diagnosis, so my father's primary attorney is my mother, who doesn't have the capacity.  

    I am not sure if this means the original LPAs are still active or if the new application cancelled them even though the new application failed, and this is something you need to establish with the COP ASAP.

    This is all complicated still further, as we are not entirely confident my father will make decisions in my mothers' best interests, as he wants them to move into a retirement village, which my mother is dead set against, as she hates change.  I'm cross with myself for not being stronger with my parents six months ago when I found out what they planned, but it looks as though it will be another 20+ weeks before the lpa can be registered, which given my mother's condition, might be a serious issue.  I feel their advisor should have known the importance of getting the dates right and I'm uncertain how my mother's diagnosis affects the validity of this LPA.  I spoke to the advisor today and it seems they are uncertain whether the existing lpa we set up is still valid.  If anyone has any thoughts on this I'd be very interested.  Thanks
    If what has been done has left both of them without LPAs then, for your mother,  the only option is to apply for deputyship. 

    From experience the more important of the two LPA types is financial, and if you don’t have those in place then you could be in for a difficult time managing your mothers affairs. If that is the case your father needs to get his sorted ASAP and you need to sort out deputyship for you mum.

    PS. In future try not to post a wall of text it makes it so hard to read and a some member will just skip over such posts. This is why paragraphs were invented

  • lr1277
    lr1277 Posts: 1,630
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    My understanding of LPA's is slightly different to what is discussed above. I speak as some who had a dad who was diagnosed with a type of dementia. He had multiple hosptial stays, many of those stays were weeks long;

    A health and welfare LPA is only used when making medical decisions on behalf of the donor. So medical staff (doctors, nurses, ambulance staff etc) may ask if you have a (health and welfare) LPA. They will only refer to the attorneys if they think the donor/patient doesn't have capacity to make decisions for themselves.
    To my mind this does not cover house moves or other non-medical issues. Though you may argue moving house might be beneficial healthwise, I don't think the health and welfare LPA was intended for that purpose.

    Talking of health and welfare LPA,  medical staff may ask if the donor has said what needs to be done ina 'Do Not Resuscitate' situaion. Best talk to your parents to see what they want done in that situation. In my experience this is asked in 2 scenarios: 1) near the end or 2) where a long stay in hospital is anticipated. And doctors, nurses and ambulance staff asked this question.

    The finance and property LPA is for things like accounts (bank, credit card, utility companies etc). That LPA could be used to buy a property with the donor who has given permission to an attorney. The attorney would have to make decisions/take action in the best interest of the donor. Doesn't matter if donor and attorney are married to each other. The donor's wishes either have to be complied with or at least taken into account. Though if donor and attorney are married to each other and they have a difference of opinion, I have no idea how that works out.

    As an aside and as a piece of advice, if you have not already done so, get your parents to tell their gp surgery who the surgery staff can talk to about their condition. At my parents surgery none of the staff would talk to relatives without permission. This includes not talking to the spouse. We had to write a letter signed by my dad telling the surgery staff which family members they could talk to about their condition. You need to find out the process/ documentation required by your parets' surgery. We found this very helpful when dealing with dad's condition.

    Hope that helps.
  • elsien
    elsien Posts: 32,309
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    edited 30 October 2023 at 6:55PM
    lr1277 said:
    My understanding of LPA's is slightly different to what is discussed above. I speak as some who had a dad who was diagnosed with a type of dementia. He had multiple hosptial stays, many of those stays were weeks long;

    A health and welfare LPA is only used when making medical decisions on behalf of the donor. So medical staff (doctors, nurses, ambulance staff etc) may ask if you have a (health and welfare) LPA. They will only refer to the attorneys if they think the donor/patient doesn't have capacity to make decisions for themselves.
    To my mind this does not cover house moves or other non-medical issues. Though you may argue moving house might be beneficial healthwise, I don't think the health and welfare LPA was intended for that purpose.

    Talking of health and welfare LPA,  medical staff may ask if the donor has said what needs to be done ina 'Do Not Resuscitate' situaion. Best talk to your parents to see what they want done in that situation. In my experience this is asked in 2 scenarios: 1) near the end or 2) where a long stay in hospital is anticipated. And doctors, nurses and ambulance staff asked this question.

    The finance and property LPA is for things like accounts (bank, credit card, utility companies etc). That LPA could be used to buy a property with the donor who has given permission to an attorney. The attorney would have to make decisions/take action in the best interest of the donor. Doesn't matter if donor and attorney are married to each other. The donor's wishes either have to be complied with or at least taken into account. Though if donor and attorney are married to each other and they have a difference of opinion, I have no idea how that works out.

    As an aside and as a piece of advice, if you have not already done so, get your parents to tell their gp surgery who the surgery staff can talk to about their condition. At my parents surgery none of the staff would talk to relatives without permission. This includes not talking to the spouse. We had to write a letter signed by my dad telling the surgery staff which family members they could talk to about their condition. You need to find out the process/ documentation required by your parets' surgery. We found this very helpful when dealing with dad's condition.

    Hope that helps.
    A health and welfare power-of-attorney is absolutely not just about medical decisions. If it only covered medical decisions, then it would be a health power-of-attorney, not health and welfare.

    The guidance information specifically 
    says:
    As a health and welfare attorney, you make (or help the donor make) decisions about things like:
    • daily routine, for example washing, dressing and eating
    • medical care
    • where the donor lives
    The primary difference between it and the financial one is that it can only be used when the person has lost capacity around the specific decision whereas the finance one can be used if the person still has capacity, with with their consent.

    All shall be well, and all shall be well, and all manner of things shall be well.

    Pedant alert - it's could have, not could of.
  • Malthusian
    Malthusian Posts: 10,838
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    edited 31 October 2023 at 12:05PM
    lr1277 said:

    Though if donor and attorney are married to each other and they have a difference of opinion, I have no idea how that works out.
    Same as it does if they are not married. If the donor still has capacity then their opinion is all that matters. If their attorney disagrees with their financial decisions, they can either hold their tongue, resign, or annoy the donor until they revoke the LPA.
    If the donor does not have capacity, the attorney's first duty is to act in their interests, and their second duty is to manage their finances as the donor would wish them to be managed if they still had capacity.
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