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.

They don’t need to do this!!! The children are appointed as replacements for PFA. All they need to do is confirm to the OPG that the original attorneys lack capacity.

Can the two overseas poa rescind?

@Hayley1256 but I was under the impression you cannot set up an LPA for someone who lacks capacity though. Is your suggestion to revoke the current LPAs held by @charliehungerford elderly people and then set about setting up new ones with new attorneys?

Yes, I think this is the route we may have to take. The solicitor is still intending to meet with them this month, so we’ll wait to see what they say. We just seem to be going around in circles at the moment.

They don’t need to rescind, they are happy to be POA and thankfully all three children are in agreement.

The solicitor isn't worth the hourly fee if they've told you you need to look for a clause in the LPA. There is no such thing. The way they are set up is that anyone named as replacement attorney can step in when the first attorney/attorneys can't.

Are your husband and his siblings explicitly named under the replacement section, or as Attorneys?

In each case - are they appointed jointly, jointly and severally or j&s on some and jointly on others?

Sorry, the solicitor didn’t mention clauses, I was just saying I wish there was one! All three siblings are listed as replacements. Jointly and severally. The issue is proving they no longer have the capacity to act for each other. A professional capacity assessment is probably going to be the way forward.

You may not need a professional capacity report (they can cost £££!). Ask the GP, a social worker etc, before you go down that route.

But yes if they’re all listed as replacements, it’s as simple as sending the LPAs to the OPG with the proof (you’ll need a letter for each parent). H&W will be cancelled but like I say, they’ll consult family on those decisions without one. You’re unlikely to get a H&W deputyship order for them. PFA LPAs will be returned with a “this Attorney cannot act” stamp for each parent and a “this Attorney can now act” for each replacement. Get certified ID for all Attorneys (or just the one in this country, if that’s their preference) and send certified copies off to the banks etc. it can be time consuming but the solicitor isn’t really needed at this stage

I think if a POA is already registered with the OPG you’re not able to do an additional one. The original has to be removed.

It's to do with the change from Enduring PoA to Lasting PoA. EPAs only covered property and finances. LPAs cover H&W too. My parents were caught in this, but our solicitors are good. The advantage to LPAs is you get the digital access codes which makes it easier to register them with organisations.

if in England

Make sure that you have claimed attendance allowance for them both. Long form but low threshold and basically virtually automatic at their age

Also claim for a reduction in council tax due to mental infirmity. Just email the council

if you ask for a social services assessment they will probably action both of the above for you as part of that

A friend of mine works for this company who can do MCA for you. Something like this would work.
https://tsfassessments.co.uk/

I appreciate attendance allowance is there for people who need it but the in laws have a very good income most of which they are not spending, it’s just sitting in various bank accounts. They don’t need any extra financial support.

I did enquire about social services being involved but they wouldn’t agree to that, and to be honest with them being self funding I doubt SS are interested, or have the manpower.

re Attendance Allowance. It can be a 'gateway' to assist in getting other things such as blue badges (I think).

Did you contact the OPG or did you go straight to a solicitor?

I think you're making this harder and more drawn out (and more expensive) than it needs to be. Just pick up the phone and speak to the OPG. They're really helpful.

DH has spoken to the OPG. They confirmed that as long as Mil and FIL have POA for each other, the replacement attorneys can’t act on their behalf. They need to be removed. It’s just proving difficult to remove them due to their lack of understanding of the process.

This isn’t true and I highly doubt this is what the OPG has told you. You’ve been told multiple times what you need to do. “Removing” them doesn’t mean that they need to make new LPAs. It means you send the original LPAs to the OPG with proof of the attorneys lacking capacity.

Had an easy time sorting this for MiL as she said I can't understand my bank or bank statements and I keep loosing passwords and that person on the phone doesn't help (a recorded voice message mostly). So I had to make an appointment with the bank and had a 6 week wait, when I went with my ID etc (DH & I both named on PoA) I was asked whether this was to fully remove her from accessing bank account or some sort of half way - I didn't know what was an option. She recognised her own ability and later had a nasty fall and was in hospital on and off for a while so it was good timing BUT my DS and I were talking about parents and we can't see them ever admitting they can't understand or cope with finances - albeit we have PoA. We wondered whether at any point their bank would be obliged (FCA rules maybe) to suggest it? So I am interested to see how this works - I suspect it will be at least another year before DPs are noticeably struggling, but DM got a letter from the bank when I was there and she couldn't understand it but wouldn't ask me for help nor show me - they are meeting the bank tomorrow and I am half expecting a phone to ask my advise post the meeting. Good luck OP and let us know when you get this resolved.

I know, I said this earlier. We are going to have to get a capacity assessment done for both of them. It’s frustrating though, we don’t want to put them through that, but looks like we have no choice. It’s frustrating that they thought setting up their POA ten years ago was the right thing to do, no one envisioned them Both losing capacity at the same time. It’s very sad.

I think our situation is slightly different as mil and fil have POA for each other. I’m sure we’ll get some resolution but it’s hard work !

Or you could get them for free via the gp
spamming for your ‘friend’ isn’t acceptable

Did they take advice at the time?
it was pointless if they were married

They do need to claim it. It isnt just the money you get engagement with adult social care here as well,

have they had a social services assessment in the home? just put in a request

it is £10k a year for a couple. I told my parents that the government were paying to them as they recognised they needed some extra help and they had to spend it on that. We started with extra cleaning days but in effect another day when someone popped in and checked they were ok

A capacity assessment starts with a visit to the gp. That is it. Simple start and then the gp advises from there

at the same time adult social care can be contacted and do a home visit

@kyotoorbust that’s not true AFAIK. PoA for your spouse is very useful in a lot of circumstances. Being next of kin has no legal status in the UK. Having power of attorney means you can make actual health and/or financial decisions with legal status in the other person’s best interests.