Educate me on power of attorney

I have all the forms done and it all sent back and it’s been in the filing cabinet for about 5 years. My mum is wanting to move to a retirement flat and got her house valued. Estate agent concerned mum lacks the judgement to decide this so I need to activate power of attorney. To be honest I was hoping to just do it with her but…seems not.

So what happens when I activate it? Does she then lose all ability to control anything? Or do I show the estate agents the paperwork etc and that’s it? Anyone been through it got any tips?

I think you just need to proove to the agents you have POA…?

EDIT, wrong link

https://www.gov.uk/lasting-power-attorney-duties/proving-your-lasting-power-of-attorney

I had it for both my parents and still for my mother and I act as her attorney now. She is not gone but she could not cope with financial matters, housing etc so I do that.

If it’s all registered then it should be just a case of you showing the PoA to the relevant parties and start to act.

This is useful

https://www.gov.uk/lasting-power-attorney-duties

I found this bit somewhat bizarre – and it was really hard to find out what you were meant to do but worked it out in the end –

You have power of attorney – you are authorised to act on her behalf so when you feel it is appropriate you can do so. Nothing needs to happen, you don’t need to report that you’re doing it or tell anyone.  It doesn’t mean you have to act on her behalf for everything.  She can continue to do stuff alongside you.

Depending on what the organisation is they might require you to fill in some forms and usually want to see the PoA doc (banks can be quite heavy on admin on this) but others you just show them – that should b enough for the estate agent.  (they usually take a copy to record why they’ve let you act).

First thing you should do is go to a solicitor and get some certified copies of it made – which the solicitor should sign and stamp on EVERY page.  You really don’t want your only copy going missing in the post, or some company taking ages to post it back to you.

You really don’t want your only copy going missing in the post, or some company taking ages to post it back to you.

It sounds like the OP had it done recently enought for it to be digital now, so they shouldnt need to pay a solicitor for a certified copy:

If your LPA was registered on or after 1 January 2016, you can let companies and organisations view an online summary of the latest version of the LPA.

You’ll need to create an online account to generate an access code for each LPA.

Companies and organisations can use the access code to view a summary of your LPA which includes:

if it’s still valid and registered
the donor’s name, address and date of birth
the attorneys’ names, addresses and dates of birth
how decisions are made by the attorneys
the donor’s instructions and preferences

https://www.gov.uk/lasting-power-attorney-duties/proving-your-lasting-power-of-attorney

Great advice thanks guys so I literally just show the forms to estate agent and they are covered….tip of getting some copies from solicitors is a good one.

There are 2 types of LPA, basically finances and health decisions.

You can activate financial decisions if person still retains mental capacity for those decisions .. if health, soon as they assessed as lacking it.

There are two, one for health & welfare and one for finances, you’ll be needing POA for finances to act on her behalf with regards to a house move.

You will need to show the original POA to the relevant people in the finance process.

Is anyone else named in the POA in terms of the decision making?

If your mums not in agreement, someone (not the estate agent) should assess your mother as lacking in capacity in relation to her house sale.

https://www.gov.uk/lasting-power-attorney-duties/property-financial-affairs

Cool, so I have the finance one, I can activate and online account to “display” it to those that need it and I can just use it as and when required….

Great, thanks guys I was going round in circles online!!

Is anyone else named in the POA in terms of the decision making?

No, my family are not very good at living, it’s a wonder I am still here tbh ?

If your mother is still capable of some decision making she can certify copies and save paying for a solicitor

https://www.gov.uk/power-of-attorney/certify

Personally i didn’t bother with a copy but I never sent the original off, if  say a bank needed a copy I took it in and they copied it there and then.

As an attorney for my father I am a little surprised that an estate agent can determine your mothers mental capacity.

It may be she does not have capacity, however I would expect that to be assessed by a professionally qualified medic, not a seller of houses

Solicitors would only assess a persons mental capacity regarding financial decisions as anyone else selling goods or expecting someone to sign an agreement would, there is a presumption of capacity .. but if the solicitor felt the person lacked it they would ask an appropriate professional to assess it – typically a social worker or GP.

Confirmation of a valid LPA is held by the Office of the Public Guardian. I wouldnt stress too much if you have lost your own copy, you can just email them for confirmation.

https://www.gov.uk/government/publications/how-to-be-an-attorney/how-to-be-an-attorney-property-and-financial-decisions

That link might help?
(My sister and I have LPA for my Mum, we’ve not had to use it yet)

I am a little surprised that an estate agent can determine your mothers mental capacity

Obviously  they can’t but I also see no problem with them being cautious

A solicitor can certainly give advice on how diminishing capacity affects an individual’s ability to make financial decisions for themselves. I was surprised at how high the threshold for incapacity was. Even people with significant dementia can be, at times, lucid enough to be involved in decision making.

Activating a POA definitely does not flick a switch and leave everything in your hands. There is, rightly, a range of involvement because you are simply there to act in her best interests, rather than make all her decisions for her. It smooths her (and your) dealings with banks, estate agents, utilities etc, and allows you to deliver her wishes while she is still capable of expressing them.

As long as your mum is capable of being part of the decision-making process, she should be part of it as fully as possible.

I’m actually fairly impressed that an estate agent would seek to confirm capacity, although I guess they don’t want the sale falling through later on.

In healthcare, capacity (to make decisions about your health) is specific to the question being posed. “Do you mind if I take some blood?” may be easier to answer than “Do you want surgery, chemotherapy or palliative care for your cancer?” Capacity can also fluctuate.

I assume it is similar in financial matters.

you are simply there to act in her best interests, rather than make all her decisions for her.

I don’t think this is correct. If you have LPOA, and the person affected lacks capacity to make a certain decision, you are there to make that decision on their behalf. But as above, not necessarily all decisions.

Yes, but as you say, capacity can fluctuate, so at the point AA is describing, he is there to assist her with major decisions to ensure that best interests are protected. The key thing is that her involvement and wishes are still paramount right up to the point where capacity is absent, or sufficiently diminished that her wishes are obviously not in her best interests, eg

‘I want to stay in my house’ – when incapable of safe independent living even with support. But that’s a judgement that will usually be made in conjunction with the expertise of Social care and health professionals.

There is rarely (ie never) any formal assessment of capacity in my experience. People just get on with it.

Also, financial LPoA can be set up so it *either* is only applicable when the donor has lost capacity, *or* it can apply even when the donor still has capacity but wants a bit of help anyway. This depends on how it’s written (which boxes are ticked for the DIY version). Welfare LPoA *always* applies only when donor has lost capacity, they cannot willingly abdicate thei decision-making while still fully sentient.

I came here to say what @thecaptain said – the question on whether it needs “activated” actually depends what it says in the document.

but since I’m here:

As an attorney for my father I am a little surprised that an estate agent can determine your mothers mental capacity.

It may be she does not have capacity, however I would expect that to be assessed by a professionally qualified medic, not a seller of houses

actually, I would say an Estate Agent has a duty to question whether someone has capacity if they are in doubt.  Imagine an unscrupulous relative selling the property from under a bewildered parent, or an unscrupulous estate agent spotting that she wasn’t really up to it and offering a bunch of premium services!  The courts would take a dim view when the wheels came off later.  What AA had described is presumably the estate agents suggestion that “if he had POA” then it would be simplest if he is going to be doing all the instructing for him to use that; presumably if AA was convinced she has capacity and he does not need to be involved there would be an alternative medical / legal assessment to establish that.

anagallis_arvensis

Full Member

Cool, so I have the finance one, I can activate and online account to “display” it to those that need it and I can just use it as and when required….

Great, thanks guys I was going round in circles online!!

You have it nailed.

You can generate a code on-line for whoever and they can use the code to check on-line.This is the modern version of a certified copy.

Good luck.

Paul

Btw, PoA can now be shared digitally once you get it set up, a bit like the driving license sharing code thing. Should make all this “getting certified copies” somewhat redundant.

Yeah except hardly anyone understands the electronic thing…it’s a shambles. At least it was a few months ago when we were dealing with FiL (now deceased).

I would say an Estate Agent has a duty to question whether someone has capacity if they are in doubt.

It’s certainly ethically correct, unless the motivation is simply not to have the sale collapse messily later on. They don’t have any formal duty of care as such, although it’s refreshing to see a hint of one in that particular business.

I have recent experience of this with my Mother who died in July.

The Financial LPA is simple to implement. As above if set up to assist rather than take over. I looked after my Mothers finances for the last year or so and most organisations were really straightforward. Supply the code to the LPA website and away you (they) go. Instantly. It removes a barrier to getting stuff done. Some organisations can have unhelpful and arcane rules which really protect them rather than the subject of the LPA but generally you can work around that. I found the Web based service straightforward and reliable.

The care and welfare LPA is a whole different ball game. IME, the ‘authorities’ used Capacity as a sneaky way to do exactly what they wanted. If it suited them, she didn’t have Capacity and vice versa. Her Capacity also did change +/-/+/- over the last months of her life. Also bear in mind, if the subject has previously been strongly in favour of x, the authorities will (did) defer to this regardless of current Capacity or LPA holders wishes. Example; My Mother wanted to be at home when it would have been best for her to be cared for elsewhere. She was adamant when she had Capacity and the authorities chose to comply with this even when she didn’t have Capacity and was at home, alone, in bed 24×7. I think it served their resource/budget purposes but then I’m a cynical shit. Beware.

Agree about the capacity thing, we actually have a complaint in with the hospital who professed ignorance of the PoA when it suited them (they didn’t bother to discuss things with my wife), also considered FiL to have capacity when convenient for them (eg consenting to treatment he didn’t understand) but not when it wasn’t (so they could deprive him of liberty).

Yeah except hardly anyone understands the electronic thing…it’s a shambles. At least it was a few months ago when we were dealing with FiL (now deceased).

I have had no issues with banks, electricity, phone, insurance, mortgage, estate agents etc using the online code, across two parents and multiple accounts and services. Only issue I have found so far was that the social services are so backed up that the online code had expired before they tried to view it. Takes 15 seconds to generate a code and about the same for an organisation to check it. I usually send the code, the expiry date and the web address to access it all in one email for those who might be less familiar.

Other tips – many banks only give restricted access to those using an LPA. For example NatWest would not let me (with PoA for my dad) set up a new bank account. Also NatWest only shows me account numbers, and I cannot name the accounts like my Dad had set up (for some reason he had multiple current accounts, each for different things, but these had all become mixed up, with some being used, some ‘joint’ with my mum using the cards etc). While your parents still have some degree of capacity make sure that the account numbers, passwords, memorable details etc are all recorded somewhere safe.

Similarly if you have a health LPA make sure the GPs surgery has you as someone they can speak to over the phone about health issues. Otherwise you find your parent instantly forgetting the appointment dates/times and you not (officially) being able to get them.

Finally take it a bit at a time. Managing someone else’s entire finances is time consuming and frustrating. I now have boxes of paper records, and spreadsheets to manage my parents money, but it took me several days (spread over a few months) to get everything sorted, and figure out where the various direct debits were all going (and which were no longer needed, such as breakdown cover for a car they don’t own any more, and auto renewing software and magazine subscriptions for my dad who is blind and has dementia).

@thecaptain I’d like to consider it a case of Hanlon’s Razor but I’m not totally convinced…

Also bear in mind, if the subject has previously been strongly in favour of x, the authorities will (did) defer to this regardless of current Capacity or LPA holders wishes. Example; My Mother wanted to be at home when it would have been best for her to be cared for elsewhere. She was adamant when she had Capacity and the authorities chose to comply with this even when she didn’t have Capacity

This is why the wording in the LPA application, when the donor has capacity to understand, is really important. My parents both wanted a clause like that – to stay in the home as long as possible. I discussed this with them and we agreed that it should be something like as long as it is safe and practical, and they have access to suitable care in their own home. I would try and get donors to avoid absolutes in LPA documents, because you never know what life will throw at you.

Another example was my mum who wanted to refuse all medical care once she entered hospital – I pointed out that if she broke an arm, surely she would want it mended, even if she was 90? “Well obviously I didn’t mean that, I meant I don’t want to be kept alive if xxxxx happens”. These are legal documents and wording is really important.

Similarly if you have a health LPA make sure the GPs surgery has you as someone they can speak to over the phone about health issues. Otherwise you find your parent instantly forgetting the appointment dates/times and you not (officially) being able to get them.

You’ve reminded me of something else – this is becoming ‘Top Tips’.

Some Surgeries won’t speak to you even with LPA. In our case, the Surgery wanted the subject to agree (in writing) to me acting on their behalf. Luckily we sorted this whilst my Mother had Capacity so we could deal with the Surgery otherwise, goodness knows how screwed up things would have become. The Surgery, generally were very good. They made many home calls towards the end often with little notice. The only ‘issue’ being, every visit required the completion of an online triage form to explain the why’s and wherefore’s. Irritating in the circumstances but not impossible to deal with.

@Ji In our case, it wasn’t what was in the LPA doc. My Mother verbalised her choices when she had Capacity and these became persistent once she didn’t. The Authorities (in our case) chose what suited them and their agenda regardless of the LPA, our wishes and changing circumstances.