Catch 22 with elderly parents and POA

[charliehungerford]

My in-laws, 89 and 90, live independently at home a few hours away from me, they have been in their current home since the 1960’s. We organise home shopping, prescriptions etc and visit when we can. They are no longer able to keep on top of their finances, are pretty much housebound, can’t get to a bank unless we take them, don’t do tech, refuse to pay anything on line, won’t use cards. They have both become very confused over the past year and their short term memory is terrible. They don’t recall a conversation you had with them an hour ago.

They sorted POA ten years ago, they have POA for financial issues for each other, and then their three children are named, two of which live overseas. Problem is that the children (one of which is my husband) cannot act for them unless their POA’s for each other are revoked. They don’t understand why they need to be revoked, they don’t have capacity to instruct their solicitor to change it, but they don’t have capacity to act for each other in the event of something happening, such as needing to pay for carers etc. They have numerous bank accounts with significant funds but have no way of accessing them as they don’t understand how to without significant assistance, but as we cannot currently use the POA we are stuck.

they did the right thing setting up the POA but unfortunately they are trapped in an awful situation where they aren’t able to act for each other and no one can act for them.

Does anyone have any experience of this problem? Any advice on how to move forward would be appreciated.

is this what a solicitor has told you?
Is it something like I name spouse but if spouse is unable/unwilling I name children?
In which case could you get solicitor to come to house to see they are no longer able and agree children can act?

There doesn’t seem to be a clause saying if they lose capacity to act for each other and the solicitor agreed, then the POA passes to the children. The solicitor is trying to help but their hands seem to be tied as they say the current POA for each other has to be removed first, but they don’t understand why they have to do so. The solicitor is prepared to do a home visit, but I don’t think it will change the situation. We managed to get them to the solicitor but by time they got in the room with them they couldn’t remember what they were there to do! It’s very frustrating.

As they don’t have capacity, they cannot act and therefore the replacement attorneys step in.

That’s what I thought, it should be automatic, if the solicitor feels they don’t have capacity surely the POA should be able to be used by the children. It’s a confusing mess tbh.

If they are appointed as Attorneys in the first instance, and the children as replacement, you need to just get the original LPAs (assuming as you said they did this ten years ago, they're LPAs and not EPAs), and send them to the OPG with proof of the Attorney losing capacity (a capacity report). The OPG will stamp to show the main Attorney cannot act, and that the replacement Attorneys are now acting. You don't need a solicitor to do this.

I’d suggest getting in touch with the OPG.

I would be surprised if someone without capacity can be a an attorney, so it may solve itself once that’s confirmed.

If they still officially have capacity your DH could take them both or one of them depending on account status to a bank and change one account with plenty of funds into a joint account with your DH. He could then use that account online to pay bills etc. I realise this might be frowned upon but it works, as long as the parent has enough capacity to agree in the meeting with bank official. Obviously your DH would need to keep copies of all statements to satisfy anyone asking that he wasn't personally misappropriating funds.

No no no!!!

You CANNOT do this. As soon as one party loses capacity the account will need to be frozen. OP needs to get the Attorneys to get ahold of the LPAs, send them to the OPG, and get it sorted.

Obviously if a solicitor has done a full capacity assessment for each of them and deemed them to lack capacity then the joint bank account would not work.
But people do not suddenly lose capacity, as memories begin to fail they may still be capable of some decisions but not others.

The solicitor can only make decisions in relation to testamentary capacity and the capacity to make LPAs etc.

a professional needs to make the capacity decision. But in any event, the joint account does not work and leaves the door open for action to be taken after death.

Have they had an assessment to say they have no longer have full capacity @charliehungerford? As far as my knowledge goes a solicitor cannot deem them to lack capacity

I think you are correct, perhaps we should look at getting proper capacity assessment for both of them, then go down the OPG route as others have suggested.

@charliehungerford I only say this because my siblings and I are in a similar situation with our mother. We desperately need help with her as she is resistant to anything that might help her refusing to have food delivery/cleaner/carers etc. We contacted Social Services who were really helpful EXCEPT that our mother refused an assessment and was deemed by them to ‘have capacity’. Our LPA for Health and Welfare is utterly useless quite frankly. Good luck it is such a difficult situation.

https://www.nhs.uk/tests-and-treatments/consent-to-treatment/capacity/

Your word that they don't have capacity is not enough, I assume you would need a GP or geriatric specialist to give a professional opinion in writing.

Sorry you are also having difficulties @BlueLegume. I don’t think they would have an objection to an assessment, we might need to go down that route. I know these procedures are there to protect people, but it does make it very difficult to help them.

@charliehungerford thank you. I know that if I had my time again I would be very firm on the LPA we set up for our parents about certain ‘I don’t want’ statements we are now facing and have discussed with our mother than certain things are needed - maybe she does not ‘want’ them but it is running us ragged trying to manage her life. We, well not me so much now as I have had to step back as it made me ill.

Please take care and perhaps have a conversation with the elderly people in your life that they at a stage now where needs trump wants.

Did they set up H&W LPAs when things changed? The EPAs will only let you do the financial stuff.

Thank you @BlueLegume, I hope your situation eventually resolves itself. In hindsight we should have reviewed the POA set up a few years ago when they were just a bit forgetful’, it could have been much easier, I fear it’s now too late. They do want us to help, but they aren’t able to explain this to the solicitor. We are starting to make provision for our old age and will try to ensure things are not so difficult for our own children.

They do have H & W for each other but did not list replacement attorneys, so we don’t have any control over that. Not sure why they only did financial.

I would also suggest phoning the OPG before doing anything.

They take a long time to pick up but are very helpful.

I wouldn’t do that. DH would be liable for tax on half the interest, and could be in trouble for persuading a vulnerable person to give him money.

There’s nothing complicated about this situation.

H&W is tougher but in the absence of a valid LPA, family members etc will be consulted.

You need to get a capacity assessment and then contact the OPG. That’s all you need to do.

Would either parent be able to understand 'I want my daughter/son to look after my money and pay the bills'.

Doing a new LPOA without the solicitor but with family and friends may be possible.

It takes a lot to lack capacity. When DM was ill we were told that as long as mum understood the question when asked it, and was able to answer, she had capacity.

The fact she had no memory of it an hour later was neither here nor there, apparently.

Get the paperwork to revoke the POA and then the paperwork to set up a new new one. If they are formally diagnosed with any kind of dementia then it will need to be registered with the court of protection.