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    • MSE Jenny
    • By MSE Jenny 13th Dec 11, 12:57 PM
    • 1,221Posts
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    MSE Jenny
    New power of attorney guide
    • #1
    • 13th Dec 11, 12:57 PM
    New power of attorney guide 13th Dec 11 at 12:57 PM



    Hi, we've written a new Power of Attorney guide to help people plan ahead, and we'd love your feedback.

    If you've set up power of attorney, what are your practical tips? If you're already an attorney for someone else, what advice do you have for others? What else would you add?

    Thanks
    for your help!


    MSE Jenny

    Last edited by MSE Jenny; 21-12-2011 at 2:19 PM.
Page 22
    • Siriki
    • By Siriki 29th Dec 17, 10:12 AM
    • 9 Posts
    • 7 Thanks
    Siriki
    I think it's vital that any guide specifically addresses the limitations on what the attorney can do with the donor's money and that this is spelled out clearly so that it cannot be either mistakenly or deliberately misinterpreted
    • badmemory
    • By badmemory 29th Dec 17, 11:55 PM
    • 1,709 Posts
    • 2,305 Thanks
    badmemory
    The most important thing about an attorney dealing with a donor's finances are that they should deal with them in the donor's best interests. That cannot be misunderstood or misinterpreted. It is extremely simple "in the donor's best interest's".

    That is not to secure the attorney's inheritance, not to be used to finance the attorney's life in general, but simply to deal with it in the donor's BEST interest's, to supply whatever comfort they need, whether it is the care home that is chosen, the glasses or hearing aids that are bought for them, or the clothes that are purchased for them, the treats that they would normally have bought for themselves if they were able.

    As I said nothing to misunderstand or misinterpret.
    Last edited by badmemory; 29-12-2017 at 11:58 PM.
    • Primrose
    • By Primrose 30th Dec 17, 8:59 AM
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    Primrose
    This shows why it is vitally important, when picking your attorneys, to have those who are capable of managing their own finances competently. It's providing too much temptation to let somebody who can't manage their own finances well to ask them to take charge of somebody else's. If they find themselves in financial difficulty they may not be able to resist the urge to tell themselves it's OK to "temporarily borrow" money from the donor, or skimp on spending on the donor's welfare (i.e. choosy a cheaper care home provision) in the hope that this will leave a bigger legacy for themselves if they know they're a beneficiary in their Will.
    • getmore4less
    • By getmore4less 30th Dec 17, 9:43 AM
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    getmore4less
    Have a read of

    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf

    That is the framework for all that deal with adults that lack capacity including those that hold EPA/LPA.
    • KevF1966
    • By KevF1966 12th Feb 18, 11:51 PM
    • 3 Posts
    • 2 Thanks
    KevF1966
    Help required
    My parents used a solicitor back in 2003 to draw up Enduring Power of Attorney for both of them. We have recently found out that the solicitors no longer exist & as my parents were never provided with copies of the signed documents cannot trace them to be able to use them when the time comes. Can anyone come up with any suggestions as to how we might be able to locate where the copies the solicitor had might have gone? Thanks
    • Keep pedalling
    • By Keep pedalling 13th Feb 18, 12:34 AM
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    Keep pedalling
    If your parent still have the mental capacity, I would start again with new lasting powers of attorney. If you are looking to register those EPAs because they have lost capacity then it is possible that the SRA can tell you what happened to that firms documents, but if they are lost then the only alternative is to apply for duputyship through the courts.

    https://www.sra.org.uk/faqs/contact-centre/public/06-interventions/closed-files.page
    • jouef
    • By jouef 15th Feb 18, 1:06 AM
    • 92 Posts
    • 40 Thanks
    jouef
    How can I compensate my attorneys?
    I am filling in online Power of Attorney forms for Health & Welfare and Property & Finance. I want to give my attorneys, who are family members not professionals, discretion to pay themselves compensation for their time and effort (in addition to expenses). What words should I use in my forms?
    • Primrose
    • By Primrose 15th Feb 18, 9:33 AM
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    Primrose
    I think you have to be careful about this because whatever you want for your attorneys in terms of compensating them, their prime objective has to be to look after your finances and manage them to YOUR best advantage, not theirs, and by the time these may need to come into effect many years down the line, your financial circumstances may have deteriorated.

    Yiu could consider something along the following lines but this does not represent legal advice:

    My attorneys may reclaim all expenses connected with their duties as my attorney and may, in agreement with each other, claim compensation for the time spent on managing my affairs which is commensurate with the state and health of my finances to fund those expenses. .......(or words to that effect.)

    If your attorneys are acting jointly and severally , there is always the chance that those instructions may be struck out as there would be no legal requirement for attorneys to agree on how this clause was implemented.
    • Keep pedalling
    • By Keep pedalling 15th Feb 18, 10:05 AM
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    Keep pedalling
    I would not do this, it may be many years before your LPA is used if ever and your financial situation may be very different to it is now. I would also be concerned that this could cause trouble between your attorneys.

    Keep it simple if you want to make gifts to your family members do it while you have the capacity to enjoy seeing your gifts put to good use.
    • jouef
    • By jouef 16th Feb 18, 11:50 AM
    • 92 Posts
    • 40 Thanks
    jouef
    Thank you for your helpful replies. I agree very much the need to be careful and to keep it simple, and I note that I can also document wishes in detail in a separate document. Taking other points in turn:
    ... their prime objective has to be to look after your finances and manage them to YOUR best advantage, not theirs ...
    Originally posted by Primrose
    They automatically have to ensure there is enough for me, avoid deliberate deprivation and not unreasonably enrich themselves (unless they break the law), so I assume there is no need to cover this twice.
    ... many years down the line, your financial circumstances may have deteriorated.
    Originally posted by Primrose
    That's why I want to give them discretion to take payments - I could equally end up stinking rich and them penniless.
    My attorneys may reclaim all expenses connected with their duties ...
    Originally posted by Primrose
    Expenses are automatically allowable so would it be better not to try and cover that twice?
    I would also be concerned that this could cause trouble between your attorneys.
    Originally posted by Keep pedalling
    They could also fall out over not being compensated ('I'm doing all this for nothing, you never lift a finger, it's your parent too you know ...').
    ... if you want to make gifts to your family members do it while you have the capacity to enjoy seeing your gifts put to good use.
    Originally posted by Keep pedalling
    I already have gifts and IHT covered. If I knew which of my ten joint and several attorneys would be still alive, living nearby, not in prison, willing to help me and of capacity themselves when I lose it, and how much effort will be needed and for how long, I could pay them now.

    An earlier poster mentioned contacting the OPG direct for advice, and I will try this too. I wonder if "I would like my attorneys to use their discretion to take payments from my assets to compensate themselves for their time and effort" would be sufficient?
    • somuchindebt
    • By somuchindebt 16th Feb 18, 8:51 PM
    • 96 Posts
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    somuchindebt
    Guardian services company
    My father in law has lost his speech and can't write and his communication is limited to body language, yes and no. Social services have involved a guardian services company to deal with his finances as he wants to come back to his home but the house needs a lot of work and money spent on it before it is habitable. Guardian services company have set up general power of attorney. His son was against it but unfortunately he is not able to deal with his dad's finances etc...
    Before this general power of attorney was signed, we had a meeting and social services together with this company were reassuring that everything what they do is transparent, above board and will be looking at the whole family etc... We live in part of the FIL's house.
    Now, since, the document has been signed, they are not communicating at all. I asked to be informed and they said that my FIL needs to say he wants us to be informed. (I explained, he can't speak). He told me that they are not communicating with him either. They have sorted out new pin to his card, so that he can take cash out. They are supposed to sort out benefits for him, debts etc, which they are hopefully doing.
    They had builders in to see what jobs need doing. What worries me, is that they have same builders that they deal with all he time. They don't get a few quotes to compare, it's just same people. I also found, that director of the guardian services company is also a Director in other company which is property services. (don't know if this is the actual company that do the works, as they don't give out info, first they said that they work for them, and then they said they are contractors).
    How do I know if guardian services company are acting in the best interest of my father in law? How do I know that they are getting the best possible service but not just spending loads of money. How do I know that there isn't some arrangement between these two companies,where they charge premium for works and share the profits somehow? Do you guys know how they are regulated? Would it be possible for them to have some strange arrangement and rip vulnerable people off? They will have to arrange some equity release scheme and it is all quite worrying, if they are not even communicating. Are they supposed to show the work estimate to my FIL and ask for his approval before they release equity from his property?
    Have you got any experience with this? Thank you
    • Primrose
    • By Primrose 16th Feb 18, 9:36 PM
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    Primrose
    I too would be worried by that arrangement. Obviously if you are a guardian services company it's obvious that there should not be any conflict of interest between the directors of that company and any contracting company whose services you engage to work on properties, etc.


    I would be tempted to write to the guardian company, or even better, get a solicitor to write to the guardian company expressing your concerns in detail and ask for the assurance that no employees have any connective or beneficial financial arrangements/ relationships with the contractors they use. . If they are supposed to be looking after the interest of individuals, this should include their financial interest, and involve getting competitive quotes.


    I don't know whether the Office of Public Guardian has contracted these services out to a number of specialist companies (rather like the government have now contracted out the eyesight tests of the Over 70's reapplying for Driving Licences to Specsavers).


    If you don't get a satisfactory reply, or no reply at all, I would be tempted to raise the issue with your MP. The number of people needing their affairs dealt with by a guardianship arrangement is likely to grow over the years and if not challenged that things are operating correctly there is room for all kinds of abuse of the system to take place.
    • jouef
    • By jouef 16th Feb 18, 11:03 PM
    • 92 Posts
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    jouef
    My father in law has lost his speech ...
    Originally posted by somuchindebt
    If your FIL is able to grant General POA then he must have sufficient capacity, including communication, to express his wishes (with whatever assistance, sensitivity and time he needs to do so). You can represent him if he agrees; start by seeing what he wants.

    He sounds to be at high risk of losing capacity, so LPA is also a priority (if not already in place, or if not suitable judging by the way the General POA is going).
    • somuchindebt
    • By somuchindebt 17th Feb 18, 10:41 AM
    • 96 Posts
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    somuchindebt
    Hello,
    Thank you for your responses.
    Primrose, I had to convince my husband to support his father in signing this as I had imagined and trusted that all would be done properly and know I regret it. I think I will write to them myself without engaging a solicitor. Thank you for this idea.
    Jouef, yes, my FIL has mental capacity and is of a sound mind. It's the communication that is the problem. Before the General POA was signed they had speech therapist present. When we had discussion about it they reassured they would act in his best interest and work with the whole family. But, since it is signed, there is no communication. I am wondering if they have a duty to speak and consult my FIL, seeing as he has mental capacity and he should make decision, or do they make all decisions as they see it fits.
    There is no LPA I place, he never wanted one. It is very difficult subject, but I will try and speak to him about it.
    • jouef
    • By jouef 17th Feb 18, 2:18 PM
    • 92 Posts
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    jouef
    There is no LPA I place, he never wanted one. It is very difficult subject, but I will try and speak to him about it.
    Originally posted by somuchindebt
    Sorry to hear about the position your FIL is in and the concern it is causing you. If he loses capacity (perhaps through losing the little communication he has) without both Finance and Health LPAs in place, the General POA would cease and the only means of making decisions would be through whatever contracts have already put in place through the guardian services company, the care professionals' opinions of his best interests, and through the courts. With this in mind, LPA x 2 would seem urgent.
    yes, my FIL has mental capacity and is of a sound mind. It's the communication that is the problem.
    Originally posted by somuchindebt
    It is not clear whether your FIL is able or willing to discuss his opinions and wishes with you. He should be in the driving seat if he has capacity, even if only to the extent of deciding who represents his interests and how. What does he think of the way the situation is panning out?
    I am wondering if they have a duty to speak and consult my FIL, seeing as he has mental capacity and he should make decision, or do they make all decisions as they see it fits.
    Originally posted by somuchindebt
    It depends how much he wants to be involved. How about going to the Citizens Advice Bureau or a solicitor with experience in this area (eg one who specialises in Mental Capacity work) to clarify his and your options.
    • somuchindebt
    • By somuchindebt 17th Feb 18, 3:10 PM
    • 96 Posts
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    somuchindebt
    My FIL confirmed that he wants us to be informed and involved. I wrote down a few pieces of paper for him to pass onto the Guardian Services Lady. (a choice of option for him to choose, like I want them to be informed, I want to cancel the POA) He said he will pass the one to be informed and consulted. But he also said that the lady does not visit him. So he is unable to pass on the written wishes.
    My husband is in a bad state, severely depressed and he is unable to handle his dad's matters. My FIL didn't want us to have joint power of attorney, or me to have it because he was worried that it would create more arguments between us. My husband can be very difficult, he is the only child, very spoilt and his parents always did everything for him.
    My husband is worried that he's going to lose everything that his parents worked for, but unfortunately he is unable to do anything....
    My FIL is not very happy with how things are going due to lack of communication. It seems that he can't see a better option though.
    • Primrose
    • By Primrose 17th Feb 18, 3:23 PM
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    Primrose
    This is a very sad state of affairs. I would think his GP would also be a good person to consult on whether he has mental capacity. If he does have mental capacity and is 9nky speech impaired because of his stroke or other afflictions the. I would think getting Pof As might still be possible. There is an implicit understanding that these can then be acted upon with your fil!!!8217;s agreement.
    This has got to be a better arrangement than any guardian arrangements operated by a contracted company.

    Oh and do please make sure that you and your hisband now act with maximum speed to put both Financial and Health & Welfare Lasting P of A!!!8217;s in place for yourselves/each other. One always imagines one will cope with these things when they happen. The reality is that disasters can happen at any time, even at a young age, without warning and sadly it,smoften then too late to enact a procedure which would have made your lives much simpler to manage.
    Last edited by Primrose; 17-02-2018 at 3:29 PM.
    • jouef
    • By jouef 17th Feb 18, 8:05 PM
    • 92 Posts
    • 40 Thanks
    jouef
    My husband is worried that he's going to lose everything that his parents worked for, but unfortunately he is unable to do anything.... My FIL is not very happy with how things are going due to lack of communication. It seems that he can't see a better option though.
    Originally posted by somuchindebt
    Please do not end up in a much worse situation by delaying LPA, both types (especially as you live in the same residence). If/when FIL loses capacity his General POA will cease but contracts entered into under it will not. This seems to me the single most important step now. He could consider rescinding POA and starting LPA while still having capacity, and though that will not happen in time to affect the current situation you will all be up the creek without it eventually. He would be donor, you and husband (anyone else?) joint-and-several attorneys.

    Primrose also makes excellent recommendations, including your own LPAs for each other. All this will protect you from much worse problems in the future while you turn your attention back to the present.
    • jouef
    • By jouef 26th Feb 18, 8:07 PM
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    • 40 Thanks
    jouef
    An earlier poster mentioned contacting the OPG direct for advice ...
    Originally posted by jouef
    May as well not have bothered. I asked a solicitor (via my insurer's free helpline) who didn't know and also suggested I contact the OPG, who didn't know and suggested I ask a solicitor.

    Also, the OPG helpline confirmed their written guidance which is to state actual amounts, which seems daft as inflation halves the value every 25 years.
    Last edited by jouef; 26-02-2018 at 8:22 PM. Reason: replaced 'its' with 'the'
    • little_miss_tidy
    • By little_miss_tidy 11th Mar 18, 6:19 AM
    • 1 Posts
    • 0 Thanks
    little_miss_tidy
    Advice for my mum?
    My mum has decided to set up LPA but there's a snag. My dad can't be trusted with money, but she wants to give him some powers so that he can deal with the basics (as we, her children, live hundreds of miles away). She wants to be able to give "jointly and severally" access to her current accounts but "jointly" for her savings. She's willing to list out the details of the current accounts but she's refusing list the savings accounts because that would put temptation in his way.

    So she's planning to write it as (paraphrased) "jointly and severally for current accounts X and Y but jointly for anything else". This sounds like a recipe for disaster to me! All the little things that she hasn't mentioned and we haven't thought of will fall into the "jointly" category.

    What should she do?

    Two further points:
    • she doesn't want to get a solicitor involved (because "one thing would lead to another and it would end up costing a fortune"), and
    • she's determined my dad should have some limited responsibility even though he's totally incompetent and shouldn't be trusted

    I hope you can help!
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