Another power of attorney question
Discussion
Sorry, I know this topic has come up before but can't find anything similar to my situation and hoping someone can help.
My dad has a type of dementia which is putting a huge strain on mum (his full time carer). He set up power of attorney years ago but I'm now thinking the time has come to use it, mostly for my mum's sake.
We fully expect dad to resist any attempt to take over his bank account but this is necessary to allow them to live normally. Can I just invoke the POA without his consent? The original certificate is held by his solicitor so would the solicitor need dad's consent to release it? All I have is a note from the office of public guardian saying it's held with solicitor.
My dad has a type of dementia which is putting a huge strain on mum (his full time carer). He set up power of attorney years ago but I'm now thinking the time has come to use it, mostly for my mum's sake.
We fully expect dad to resist any attempt to take over his bank account but this is necessary to allow them to live normally. Can I just invoke the POA without his consent? The original certificate is held by his solicitor so would the solicitor need dad's consent to release it? All I have is a note from the office of public guardian saying it's held with solicitor.
Well back in 2010 I took my mother to her solicitors to get 2 LPAs drafted (Property and Financial & Health and Welfare) to allow my sister and I to act jointly and severally with her affairs.
In 2011 we got them registered with the Office of the Public Guardian so we could actually use them.
We both got a letter from the OPG confirming they had been registered as they have a duty to notify the donor and all attorneys of registration, but also stating that the original registered LPAs had been sent to the solicitor.
So whoever got a letter like that as a donor can act on behalf of the person "granting" the Power of Attorney without any further need for "consent" as I understand it.
In 2011 we got them registered with the Office of the Public Guardian so we could actually use them.
We both got a letter from the OPG confirming they had been registered as they have a duty to notify the donor and all attorneys of registration, but also stating that the original registered LPAs had been sent to the solicitor.
So whoever got a letter like that as a donor can act on behalf of the person "granting" the Power of Attorney without any further need for "consent" as I understand it.
xx99xx said:
My dad has a type of dementia which is putting a huge strain on mum (his full time carer). He set up power of attorney years ago but I'm now thinking the time has come to use it, mostly for my mum's sake.
We fully expect dad to resist any attempt to take over his bank account but this is necessary to allow them to live normally. Can I just invoke the POA without his consent? The original certificate is held by his solicitor so would the solicitor need dad's consent to release it? All I have is a note from the office of public guardian saying it's held with solicitor.
Sorry to hear about your dad, this is an increasingly common problem, and it's very hard for all concerned.We fully expect dad to resist any attempt to take over his bank account but this is necessary to allow them to live normally. Can I just invoke the POA without his consent? The original certificate is held by his solicitor so would the solicitor need dad's consent to release it? All I have is a note from the office of public guardian saying it's held with solicitor.
I'm assuming it's a Lasting Power of Attorney, rather than the older Enduring Power of Attorney.
The first question is whether your dad has mental capacity. Merely having dementia doesn't automatically mean that he's lost capacity - there are plenty of people with mild dementia who still have capacity. If in doubt you should talk to his doctor.
If he does have capacity then you need to check the LPA to see if he's said it can only be used if he's lost capacity. In the current version the option is at section 5 on page 6. If he's ticked that option then you can't use the LPA without his permission.
If he hasn't ticked it then you can use the LPA. However, if he objects to you doing so he can revoke (cancel) the LPA entirely.
In the probably more likely event that he has lost capacity then by definition he has no say in the matter. You can use the LPA whether he likes it or not.
The solicitor can't refuse to release the original LPA to you unless your dad has ticked the option I mentioned. In that event the solicitor would be justified in requesting evidence that your dad had lost capacity.
However, whilst that may be the legal position it's obviously very upsetting for all concerned if you're using the LPA in the face of his opposition. I guess it depends on how much he is capable of understanding what's going on at all. If he really isn't then the best solution is probably just not to tell him.
Unfortunately, it's one of those situations where there's no easy answer. Good luck in dealing with it.
Slightly off topic, but it may be relevant to the OP as well.
My Mum's LPA's were drawn up in 2010 and registered with the OPG in 2011. Section 5 is entitled "About Restrictions and Conditions" and there is no box to tick. Just a box to describe any that she may have wanted to apply, but the box has been crossed through enabling her attorneys to make decisions with no restrictions or conditions.
Presumably if she only wanted her attorneys to act in the event she lost her mental capacity it should have said that in the box?
My Mum's LPA's were drawn up in 2010 and registered with the OPG in 2011. Section 5 is entitled "About Restrictions and Conditions" and there is no box to tick. Just a box to describe any that she may have wanted to apply, but the box has been crossed through enabling her attorneys to make decisions with no restrictions or conditions.
Presumably if she only wanted her attorneys to act in the event she lost her mental capacity it should have said that in the box?
I think based on info given here, I would struggle to prove he has lost capacity. If he lived on his own, he wouldn't be able to cope but because mum is there to remind him about bills, finances etc they get by.
Problem is, he has lost his mind and is often getting ripped off by buying stuff in shops or mail order that he doesn't need. Then he worries he hasn't got enough money, then he reduces the amount he gives mum for essentials like food.
A few years ago, he moved what he had in a savings account (about £15k) into his current account. Not sure why. Now he considers the balance of his current account to be his spending money but complains when the balance goes down. Meanwhile, mum has to get by on a measly amount he gives her and her state pension.
All I want to do is move a chunk back into a savings account so it's not so easy for him to waste and to increase the amount given to mum each month. He would never do this voluntarily because he doesn't think there is anything wrong with how he manages money.
Problem is, he has lost his mind and is often getting ripped off by buying stuff in shops or mail order that he doesn't need. Then he worries he hasn't got enough money, then he reduces the amount he gives mum for essentials like food.
A few years ago, he moved what he had in a savings account (about £15k) into his current account. Not sure why. Now he considers the balance of his current account to be his spending money but complains when the balance goes down. Meanwhile, mum has to get by on a measly amount he gives her and her state pension.
All I want to do is move a chunk back into a savings account so it's not so easy for him to waste and to increase the amount given to mum each month. He would never do this voluntarily because he doesn't think there is anything wrong with how he manages money.
Sorry to hear about your Dad, mine was the same and in the later part of his life made my mums hell, not deliberately but as she was from the "in sickness and health" meaning something she soldiered on.
When she died we then took over his affairs as an LPA was in place and we got the Dr to confirm in their opinion he had lost the capability to make reasoned decisions and in our case nothing was contested by any family members.
I guess it will depend on how bad he is, how bad your mum feels he is and how bad the Doctor thinks he is. Sorry to say you are in for a tough time but perhaps your mum getting her own bank account for her pension etc or persuading them a joint account might be best, could be an easier way to start the process of getting some control.
Also look into all the benefits your mum can get, for care assistance with him, age concern are pretty good at that sort of advice. For example this week Martin Lewis raised the issue that people with dementia are entitled to pay no rates in the UK, but many councils deny this.
As I said be prepared for this to be unpleasant as events unfold especially if your Dad is still convinced he is right.
When she died we then took over his affairs as an LPA was in place and we got the Dr to confirm in their opinion he had lost the capability to make reasoned decisions and in our case nothing was contested by any family members.
I guess it will depend on how bad he is, how bad your mum feels he is and how bad the Doctor thinks he is. Sorry to say you are in for a tough time but perhaps your mum getting her own bank account for her pension etc or persuading them a joint account might be best, could be an easier way to start the process of getting some control.
Also look into all the benefits your mum can get, for care assistance with him, age concern are pretty good at that sort of advice. For example this week Martin Lewis raised the issue that people with dementia are entitled to pay no rates in the UK, but many councils deny this.
As I said be prepared for this to be unpleasant as events unfold especially if your Dad is still convinced he is right.
xx99xx said:
I think based on info given here, I would struggle to prove he has lost capacity. If he lived on his own, he wouldn't be able to cope but because mum is there to remind him about bills, finances etc they get by.
Problem is, he has lost his mind and is often getting ripped off by buying stuff in shops or mail order that he doesn't need. Then he worries he hasn't got enough money, then he reduces the amount he gives mum for essentials like food.
A few years ago, he moved what he had in a savings account (about £15k) into his current account. Not sure why. Now he considers the balance of his current account to be his spending money but complains when the balance goes down. Meanwhile, mum has to get by on a measly amount he gives her and her state pension.
All I want to do is move a chunk back into a savings account so it's not so easy for him to waste and to increase the amount given to mum each month. He would never do this voluntarily because he doesn't think there is anything wrong with how he manages money.
There's your answer right there.Problem is, he has lost his mind and is often getting ripped off by buying stuff in shops or mail order that he doesn't need. Then he worries he hasn't got enough money, then he reduces the amount he gives mum for essentials like food.
A few years ago, he moved what he had in a savings account (about £15k) into his current account. Not sure why. Now he considers the balance of his current account to be his spending money but complains when the balance goes down. Meanwhile, mum has to get by on a measly amount he gives her and her state pension.
All I want to do is move a chunk back into a savings account so it's not so easy for him to waste and to increase the amount given to mum each month. He would never do this voluntarily because he doesn't think there is anything wrong with how he manages money.
Care to elaborate as I can't think how that provides a clue to an answer?
Just because he thinks he knows what he's doing, doesn't mean he actually knows what he's doing. E.g. he blames mum for 'hiding' things when actually, he has moved stuff and forgotten where he put them or even moving them in the first place. So as far as he's concerned, he never does anything wrong and everything he says is fact, which is comical when you hear the crap that comes out of his mouth.
Just because he thinks he knows what he's doing, doesn't mean he actually knows what he's doing. E.g. he blames mum for 'hiding' things when actually, he has moved stuff and forgotten where he put them or even moving them in the first place. So as far as he's concerned, he never does anything wrong and everything he says is fact, which is comical when you hear the crap that comes out of his mouth.
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