How do I get original POA from solicitors

julieroe42

My dad has loss mental capacity and I’m POA for him for property and finance but I need original for banks etc, the solicitors told me they need a letter from the hospital as proof, the hospital won’t do this due to data protection act and the doctors have told me I need to fill out COP3 form and bring it back and it will cost me £180, is this correct?

elsien

The hospital are wrong. At least in part.

The COP3 form is a capacity assessment for an application for deputyship (amongst other things), which you don’t need because deputyship is for people where there isn’t a power of attorney which does not apply to your dad. Or where there is a dispute about capacity and the court needs to make a decision.

I would imagine that what the solicitor is saying they need is confirmation of lack of capacity before handing the document over. And it may be that the hospital is saying it is outside of their remit to assess capacity for finances. 

The solicitor could either go to the hospital and do that themselves or contact the hospital directly to explain the situation. I would put putting the onus back on the solicitor in the circumstances. It can’t be the first time they’ve come across this. 

Is there a social worker in involved because if so you could also run it past them – they are experienced in carrying out capacity assessments. 

Or go back to the hospital and pointed out that because your dad lacks capacity. then there needs to be a best interests decision around the sharing of information order for the LPA to take effect. And ask them how it’s in his best interests to hide behind data protection when he doesn’t have the capacity to agree or disagree to it (presuming that is the case). He has appointed you to act for him when he can no longer do so for himself and they are currently preventing that from happening. 

Go via PALS if you need to.

polar_pig

Your Dad doesn't need to have lost capacity for you to act on his behalf for Property and Finance LPA. This is in contrast with the Health & Welfare LPA where he does have to have lost capacity before you can act. Has the solicitor registered the LPA with the OPG? If you are his registered LPA for Property and Finance the solicitor should give you the certificate upon request irrespective of his mental capacity.

BooJewels

Ordinarily,  if a Finance LPA has been set up with minimal conditions specified, the solicitor would hand it over once you'd proved your ID and entitlement to have it - or provide you with certified copies.   I managed 2 donor's affairs quite extensively without ever having the original document, the certified copies were sufficient for the purposes I needed them for.

But if the Finance LPA specifies that it can only be used when the donor has lost capacity (that's already the case with the Health and Welfare one by default), then the solicitors are going to need some proof that that is actually the case before they'll hand it over and allow you to act.  Others can perhaps elaborate on that process.  But this might be why you've been advised in this manner - your Dad specified that requirement in the LPA.

elsien

polar_pig said:

Your Dad doesn't need to have lost capacity for you to act on his behalf for Property and Finance LPA. This is in contrast with the Health & Welfare LPA where he does have to have lost capacity before you can act. Has the solicitor registered the LPA with the OPG? If you are his registered LPA for Property and Finance the solicitor should give you the certificate upon request irrespective of his mental capacity.

Not necessarily the case as it depends on how the LPA was set up. Some people choose to set up the financial LPS so the it only kicks in when they lose capacity. This may be the situation here In which case confirmation of lack of capacity would be needed.

elsien

Final alternative is to check directly with the OPG what is required. Be prepared for a very long wait on the phone  - close on an hour Last time I tried -and some frontline staff who are less helpful than others. 

BooJewels

Thanks @elsien - I was just contemplating tagging you as I knew you'd know more about the capacity process.   I don't like that this version of the forum doesn't allow you to see new posts if you preview your post - it means that the same points get posted multiple times in quick succession.

polar_pig

elsien said:

polar_pig said:

Your Dad doesn't need to have lost capacity for you to act on his behalf for Property and Finance LPA. This is in contrast with the Health & Welfare LPA where he does have to have lost capacity before you can act. Has the solicitor registered the LPA with the OPG? If you are his registered LPA for Property and Finance the solicitor should give you the certificate upon request irrespective of his mental capacity.

Not necessarily the case as it depends on how the LPA was set up. Some people choose to set up the financial LPS so the it only kicks in when they lose capacity. This may be the situation here In which case confirmation of lack of capacity would be needed.

Fair enough, checking the LPA terms is definitely the first route to go.

A few years ago Social Services said that I shouldn't have registered my mother's Finance LPA (with no such condition) with the OPG or be sorting out her finances as she hadn't lost mental capacity. I told them they were getting mixed up with the old Enduring Power of Attorney. It was months before they agreed they were wrong and apologised. Let's hope this solicitor has got it right.