LPA Confusion

[PrizedPickledPopcorn]

DM came close to doing her LPA recently, but the first proper question confused us. They are strongly recommending the finance LPA is effective immediately, rather than needing to be invoked when needed. She’s very afraid of losing control and will see that as interference- even though we won’t actually do anything unless she asks us to. She won’t give anyone 3rd party access, for example.

Invoking it later is being presented on the website as problematic, that you need to repeatedly prove the donor has lost capacity. I’d assumed that if the other people to be informed and the donor didn’t object, then it would go through rather than needing to be proved at every step.

Does anyone have any experience?

Not a lawyer.

Invoke now.
You get an activation code.

In your case don't then activate via the code until needed. This can be done later with permission or after capacity is lost without.

Note capacity goes gently it isn't all or nothing.

We are currently activating as DPs can't do complex stuff any more (investments) but can still do simpler things. Mainly activating so if needed I can spend an hour on the phone to someone re gas or whatever.

Where have you been looking online? When we did it with my MIL we just completed it via the Gov website. https://www.gov.uk/power-of-attorney
The finance LPA doesnt need to be effective immediately, it just needs to be activated and her bank will need a copy of her LPA certificate for future reference.

@Soontobe60 One of the very first questions on the form is whether it can be effective immediately or only after loss of capacity. I just re read my parents one 3 days ago!

Effective immediately just means it can be used straight away, BUT only with the person's permission or if they don't have capacity. It can be useful if, for eg, your mum has capacity but finds sorting her house insurance out or dealing with her bank difficult, and so gives you permission to do it for her.

If you choose the other option, it means the LPA can only be used when your mum has lost capacity. So when you try to use it at her bank or wherever, they can potentially say "please show us evidence she has lost capacity" or next time you try to use it with them "please show us evidence she still doesn't have capacity" (because capacity can change). It has the potential to be a complete pain.

Reassure your mum you won't use it without permission. If she still says no, tell her she can keep the paper LPA somewhere safe, so they can't be used without her knowing. If she's comfortable with the internet, she can also have an account to check when the LPA is used online

Yes, and you'd have to prove she'd lost capacity by involving her GP. In our experience, "capacity" can come and go erratically and getting medical proof could be a real nuisance. We were advised to tick the 'active now' box and all decisions are made with aged relative's agreement, as their condition deteriorates their involvement will taper off.

Thank you for your advice. She is a little erratic- her ability has sharply declined but she isn’t yet ready to let go of anything. So we fire fight trying to sort things out remotely after she’s made them extra complicated. It would be easier by far to do things for her rather than unpick the chaos later, but there we go,

If it’s registered and activated, can the attorney give another relative 3rd party access? We are in that situation, where DM is reluctant to let the closest person be an attorney. The person she probably will trust to be the attorney isn’t physically near so will need to facilitate from a distance. He’ll be able to do online bank stuff, but there should probably be someone nearby who can get cash out, for example, if it’s needed.

No, the attorney can't grant access to the accounts because it's not their account. I have LPA for my father as does my sibling. I registered with the bank immediately and they asked if I felt he still had the capacity to make decisions and understood totally that 'it depends'. Initially we involved him in everything but he can no longer make sensible decisions regarding his finances so now the bank deal with me.

My sibling doesn't really want to deal with finances and hasn't registered at the bank. I share information (like we need to renew insurance it costs x or the care home fees are going out on y date and there's enough money, there's £xxx in the account etc) because they are also an attorney but I can't give them my login details for online banking and they can't use the debit and cash cards registered in my name.

It is best to have 2 attorneys so that if something happens there is always a backup. (The worst case scenario is that an attorney dies and the donor no longer has the capacity to appoint a new one - the application starts again if theres only one.) Both attorneys can register with the bank and both will be issued with cards so the one who needs to withdraw cash can and there is a record of who used the card.

Hope that helps!

No, an attorney can't give a third party access.

Why doesn't your mum put both people down as joint and several attorneys? (Note, joint and several, not joint) That way the person closest can do the day to say stuff and just keep the other attorney informed. And vice versa.

My parents activated theirs immediately but all information needed is in their safe which I have the code for. Means I could immediately act if needed

Yes I know it does, They are strongly recommending the finance LPA is effective immediately, rather than needing to be invoked when needed. Invoking it later is being presented on the website as problematic, that you need to repeatedly prove the donor has lost capacity my question was which website is she using strongly recommends / problematic wording.

Ime permission isn’t needed.

relative had a LPA. Was competent, but needed physical care. Her daughter lodged the LPA with banks without asking her, and got full access. Took every penny. Thousands. Was even able to get her house on the market.

bank didn’t question it until relative managed to get to the bank with a friend as she’d “lost” her bank cards. When they saw what had happened the account were all immediately frozen and a referral to OPG made.

Estate agent didn’t question it. Just needed the LPA documents.

not one institution phoned or asked to see the donor to check she knew the LPA had been invoked.

banks need to put systems in place to check LpA’s have been done with permission. At the minute there isn’t.

Oh I see. On the notes I read against my DPs' it did exactly that, present it as problematic to only have it when capacity is lost.

I had LPOA for DM and DH. I had no problems invoking it when they lost capacity at later date.

That’s shocking, @Usernamenotfound1 ! Poor woman.

@Soontobe60 the government form you fill out I would describe as ‘strongly recommends’. The wording is definitely suggesting that you may have repeatedly prove capacity. I’ve attached the screenshot.

There’s an issue with that. DM isn’t easy, and there’s a history of falling out with some relatives. One of those relatives has said ‘you must include me’, which has stopped her setting it up at all. I would rather someone at least was able to do something, even if it wasn’t the best/easiest arrangement.

So I think the physically distant relative needs it to manage her money, and can repay the local relative for any expenditure as and when it’s needed.

It’s complicated!

Just a thought... I had solicitors draw up the LPoA for DM, DH and me. I have assumed it was worth the money as I've had no problems invoking PoA in any circumstance.

Yes, so the nearby relative could, for example, do the weekly food shop for your mum, send the attorney photos of receipts, then the attorney could check the receipts and then pay the relative back from Mum's money. Obvs, I'm not a lawyer, but I couldn't see there being an issue with that. I would recommend the attorney keeps careful records though, just in case there's family drama down the line.

It would actually be better if your mum has 2 attorneys. If one attorney is ill, or on holiday (or worst case, but it happens, dies) your mum no longer has anyone to look after her affairs. If she refuses, try to get her to name the nearby relative as a replacement attorney. But I understand it's tricky and you have to be pragmatic if your mum is being difficult. One attorney is better than none!

Having granted it over a decade ago, my DP agreed to invoke the POA about 2 years ago. They both have capacity but needed help with stuff like insurance claims, tax returns, finding tradesmen and paying their invoices, etc.

To begin with I paid for stuff they needed and they repaid me, but after a few months I notified their bank and now have online access to their bank accounts and a bank card. It makes it much simpler both to pay bills and buy stuff they need.

I am joint POA with my sibling but it has worked out that I do all the work ... but they could step in if I was not able to.

This is really difficult and shows the difference between theory and reality with LPA. In theory, if the elder doesn’t trust other people, they shouldn’t give them power of attorney. In practice, it is exactly the people who are suspicious of everyone else who probably most need to have it in place.

How about saying to your mum that it’s possible to revoke the finance LPA and why doesn’t she put it in place and see how it goes for a year, then if not happy, revoke it? Or is she too likely to do that?

I sold it to my mum on the principle that ‘you make the decisions, I do the legwork’ which was true. I did nothing with it for several months except set up an online login so that I could reassure her when she rang me in a panic. I think I also helped her with her tax return but I could have done that withoutvLPA tbh. Then she had a stroke.

Yes, I think that’s the way we’ll approach it. Even filling the wretched thing out is tricky, as we’ll need to go there for the signing. She has form for getting us there for various things, not letting us do them, then complaining we are leaving so soon as there is so much to do. And at every turn the situation has to be past crisis point before she’ll engage. We started this 10 years ago for Dad after a terminal diagnosis, but she wouldn’t let it happen until he was practically on his death bed when it was too late.
If said relative takes time off work to go and do the paperwork, and it doesn’t get done, it will be irritating. However, any attempt to ensure she does respect his time and do the task he’s there for could easily be interpreted as elder abuse.
I fear she’s going to end up trapped in a situation she doesn’t want to be in, with us unable to help.

I would get two sets of papers set up and ready, and leave one with her for a while to think about - literally ‘oh here’s that LPA paperwork, I’m sure you’ll want to take a look before we go any further’ and then leave it for a few days/weeks. Then go back and when she ‘can’t find’ the paperwork, bring out the other set and proceed in the most neutral practical way you can manage when every sinew is straining to get the bloody thing done.

It’s easy to say when I know I don’t intend to abuse the power (dm might see it differently) but to me it is a no-brainer. In the vast majority of families, it is better to have next of kin making decisions for you than some random professional who has never seen you before. That’s the choice, and that’s why it’s difficult- people struggle to hold the idea of being genuinely incapable of making decisions in their heads - they can’t imagine what it would look like.

I’m sure I’ve said this before, but we did get one signed with a bit of a set up, with the elderly relatives 2 closest friends (who were worried about the ER) coming for lunch, and going on about what a sensible idea it was, and how much they admired her for thinking about it etc. One of them was able to act as certifier and another as a witness, so we could hit while the iron was hot so to speak.

and yes being able to deal with finances without certified lack of competence was v useful, we first realised the wheels were coming off when her tax return wasn’t done.

It is a relief to hear of other people needing to manoeuvre a bit to get things in motion. I know rationally that it’s her, not me, but it’s easy to feel a failure when your family dynamics are very complicated.

DH’s parents are in a similar place, though their paperwork is in place. His siblings are all a bit hands off, lovely but unable to think ahead, plan, be proactive. Yesterday BiL1 said he didn’t think they needed attendance allowance or to trigger the PoA because when he was visiting BiL2 went out over Christmas, without worrying about leaving the elderly parents alone at home. …. Because of course they weren’t at home alone because BiL1 was there 🤦‍♀️ He didn’t seem to have realised that BiL2 was only able to go out because BiL1 was there. And he hadn’t thought through that BiL2 was having to pay all the household expenses that weren’t on direct debit now his parents don’t go out- so needed to be able to access their money.

It’s like juggling jelly.

We invoked later. It involved e-mails to all close relatives copied into the office of the power of attorney and a months wait while they waited for any injections. We had a doctors note too.

Slight derail, the cheque for my POA was cashed 11th November but it still says Received and hasn't got as far as being checked yet - I've chased it and you get holding emails saying they'll respond in 15 working days. So, 9 weeks sitting in an in-tray somewhere.....don't leave it too long before applying for one!