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  • FIRST POST
    • YBR
    • By YBR 11th Jan 19, 5:30 AM
    • 69Posts
    • 59Thanks
    YBR
    Would LPoA apply in this situation
    • #1
    • 11th Jan 19, 5:30 AM
    Would LPoA apply in this situation 11th Jan 19 at 5:30 AM
    I saw this morning about issues when somebody is missing:
    https://www.bbc.co.uk/news/uk-england-46757307

    If the disappeared person has done a Lasting Power of attorney for their affairs, would it apply and allow their nominee to manage their finances until a death certificate can be applied for, or they return?

    Just idly wondering.
Page 1
    • getmore4less
    • By getmore4less 11th Jan 19, 6:53 AM
    • 35,825 Posts
    • 21,930 Thanks
    getmore4less
    • #2
    • 11th Jan 19, 6:53 AM
    • #2
    • 11th Jan 19, 6:53 AM
    Having given it some(not much) thought


    I would say yes.

    There will be a grey area

    LPA allows the nominee to act with the permission of the donor when they do have capacity

    Although an express permission may not have been given and the nominee cannot ask(as donor is missing) they could act.

    Activities that would be in the best interest of the doner could be carried out but consideration should be given to the possibility they will turn up or may not.

    An example might be the mortgage has come to the end of a deal and moving to SVR should the nominee deal with that and consider what the donor would have done?
    Should they check the payments get adjusted and there are funds?
    Could they consider a new deal?

    More urgent would be the income has stopped and the mortgage is about to default
    should they deal with the situation?

    ...
    • Yorkshireman99
    • By Yorkshireman99 11th Jan 19, 12:04 PM
    • 5,363 Posts
    • 4,529 Thanks
    Yorkshireman99
    • #3
    • 11th Jan 19, 12:04 PM
    • #3
    • 11th Jan 19, 12:04 PM
    I saw this morning about issues when somebody is missing:
    https://www.bbc.co.uk/news/uk-england-46757307

    If the disappeared person has done a Lasting Power of attorney for their affairs, would it apply and allow their nominee to manage their finances until a death certificate can be applied for, or they return?

    Just idly wondering.
    Originally posted by YBR
    In such a situation the attorney should seek advice from the Public Guardian’s Offocie. It may be necessary to seek instruction from the Court of Protection.
    • pphillips
    • By pphillips 11th Jan 19, 4:30 PM
    • 472 Posts
    • 325 Thanks
    pphillips
    • #4
    • 11th Jan 19, 4:30 PM
    • #4
    • 11th Jan 19, 4:30 PM
    My understanding is that a High Court declaration that the missing person is presumed to be dead has the same legal effect as a death certificate.
    • Yorkshireman99
    • By Yorkshireman99 11th Jan 19, 5:43 PM
    • 5,363 Posts
    • 4,529 Thanks
    Yorkshireman99
    • #5
    • 11th Jan 19, 5:43 PM
    • #5
    • 11th Jan 19, 5:43 PM
    My understanding is that a High Court declaration that the missing person is presumed to be dead has the same legal effect as a death certificate.
    Originally posted by pphillips
    LPOA’s cease to be valid upon death of the donor.
    Last edited by Yorkshireman99; 13-01-2019 at 12:46 AM.
    • Savvy_Sue
    • By Savvy_Sue 12th Jan 19, 9:55 PM
    • 39,801 Posts
    • 37,041 Thanks
    Savvy_Sue
    • #6
    • 12th Jan 19, 9:55 PM
    • #6
    • 12th Jan 19, 9:55 PM
    My understanding is that a High Court declaration that the missing person is presumed to be dead has the same legal effect as a death certificate.
    Originally posted by pphillips
    Yes, but you can only get that after seven years, can't you? So a lot could go on in that time.
    Still knitting!
    Completed: 1 adult cardigan, 3 baby jumpers, 3 shawls, 1 sweat band, 3 pairs baby bootees,
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    • da_rule
    • By da_rule 13th Jan 19, 12:20 AM
    • 3,204 Posts
    • 2,894 Thanks
    da_rule
    • #7
    • 13th Jan 19, 12:20 AM
    • #7
    • 13th Jan 19, 12:20 AM
    If the LPoA has been written to allow for actions to be taken while the donor has capacity then yes, in theory, the attorney could act.

    The problem would be, as has been said, that the LPoA ceases when the donor dies. Therefore, if after a period of time the donor is found to be dead, and has been dead for a while, any actions taken by the attorney in the time between death and the discovery of the death may therefore have been unlawful. Also, if the actions, despite being made in the best interest of the donor, caused the estate to decrease in value they may find themselves liable to the estate.

    If this is a real situation then you should obtain advice from the Office of the Public Guardian or speak to a solicitor who has experience in this area as you may have to Apple to the Court of Protection.
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