Please can anyone advise when/how to put a Power of Attorney into effect?

[BarryStar]

Not sure if my title makes sense, but basically, I have PoA for my elderly father. It seems that he's beginning to make dubious decisions regarding his finances and is becoming forgetful re quite big issues. I'm starting to think that it may be time for me to assume responsibility but, other than discussing this with him, is there any other procedure which needs to be followed?

For example, does there need to be some sort of medical examination? Or do I just start exercising the PoA (with his say-so?)

Thank you (in advance!)

Me and DW gave each other Power of Attorney (and also our lawyer) should one or other of us be incapacitated.

It involved signing a simple legal document. You need a decent family solicitor. It did not involve a health check.

Problem is getting your father to agree. He almost certainly will not take kindly to being told he is incapapable of making good financial decisions by his daughter.

There is a good simple link about Lasting Power of Attorney on the DirectGov website.

If you actually already have the Lasting Power of Attorney, then you are already entitled to act on his behalf. Its a bit difficult I guess if he does not want you to - he has to give permission for you to do so - I suggest you ask a solicitor for advise. I have LPOA for my uncle and he wants me to handle everything for him and just keep him informed. Can you talk to your Dad and offer to take the pressure off him? I know for my uncle it was a massive relief for him not to worry about this anymore.

There is also a the full set of legal documents at the Department of Justice website plus more info.

Thanks for replies and the link, I'll go check it out now.

It depends upon what type of power your father has granted as to what current authority you have. There are a number of different powers which can be granted, though you are more likely to have either an enuring power or a lasting power. If you have the latter then in order to deal with finances it has to be a LPS for Property and Financial affairs, it has to be registered before it can be relied upon and the instrument itself may have conditions or limitations within it particular to your appointmetn which limit what you can do and when you can do it.

Whilst I respect to the above replies, I disagree with some of them and in my opinion it is impossible to give you an answer to your query without substantially more information and sight of the power. I would expect any solicitor who drew it up to give you registration advice without further charge...I would.

BBC iplayer, radio 4, Money Box Live today was a phone in with legal experts, including scotland, and all about different types of power of attorney. Its not on iplayer yet, but says 'coming soon' so you may get some useful info there when it is posted up.

here

When did he grant the power?

The law changed in (I think) October 2007 - prior to that, it would have been an Enduring Power of Attorney, which needs to be registered when the donor (your father) loses mental capacity.

After that date, Lasting Powers of Attorney came in and they are registered when granted so there is nothing to do when the donor loses capacity.

You need to see which one it is. Feel free to PM me if you want, I am an ex solicitor (gave up last December) and I used to do this sort of work.

If you look at the document it might set out the conditions for activating it eg requiring a medical examination to confirm incapacity.

" I would expect any solicitor who drew it up to give you registration advice without further charge...I would."

I would happily explain how a power of attorney works to a client - but if it is an Enduring Power of Attorney that now needs to be registered, I wouldn't advise on and prepare the documents for the registration for free (and I don't know any solicitors who would) - and there will be a fee payable to the Court of Protection on registration. But you could do it yourself without a solicitor I would think. As the law has been changed for some time now, it is a long time since I have done registration of an EPA so I can't remember how much work is involved .

With regard to Emsyjs reply - it does depend on the country that you are living in.

sorry, cross post, it was your 21.19 reply that I was commenting on emsyj.

I am England & Wales - so not qualified to advise on Scots law! So if you're in Scotland I'm no use .

Hi, I had an enduring power of attorney and decided to register it (which was pretty easy apart from having to contact relatives, and didn't need a solicitor) when my mum could no longer use her cards to buy things or use an ATM so we had to give her pocket money. I wondered for a while beforehand but it was quite obvious when it came to it.

Emsyj - LPA's are not always registered when they are granted.

If I drew up the LPA then I would advise the donor or donee about the registration process at that time and I would be happy to reitereate this advice any time afterwards. I did not say i would carry out the registration process or pay the OPG fee (the fee is not always applicable),)

I can't envisage a situation where I would send a client away with an LPA without registering it, given that they cannot be used until registered. So technically, yes you could prepare it but not register it - but why would you? A delay could lead to a situation where the donor is no longer capable and registration is no longer possible - then you've wasted your time preparing the documents and you're into Deputyship territory (which is more costly and complex). Is there is a reason why you would advise a delay in registration? Genuinely interested, not being arsey.

I also think when you tell a lay person that you would do X for free, you need to be clear about what X is. I was just pointing out that there may be work to do here (if the OP chooses to use a solicitor, which she may not want or need to) and that it may be perfectly legitimate for there to be a fee for it.

There are a number of reasons why it may not be appropriate to register on the grant. ...cost, limitations in the power, conditions in the power, privacy , particular isues within family arrangemetns are all valid reasons. What I advise as to registration depends upon the circumstances, thought I tend to suggest registration rather that not.

The donee can register as well as the donor so the deputyship/donor capacity point is not an issue.

What about the issue that they are not usable until registered though? Can you give an example of where you have advised a delay in registration? I am just wanting to get a grip on what sort of situation this would apply to - just for my own personal edification!

Donee registration process is obviously not comparable with donor registration, as there are more hoops to jump through - so the availability of donee registration doesn't make a potential loss of capacity of the donor a non-issue, just a salvageable problem.

No, they are not useable until registered but in my experience it is rare that the donors grant powers and will want/need them to be used immediately. They make them in anticipation of the need (real or potential) arising in the future. If the matter is truly urgent for finances they'd grant a general or specific power not and LPA.

Donee registration is straightforward in my experience and the hoops are not more difficult.

I have done quite a few LPAs where they wanted to use them immediately - usually where the person is elderly and compos mentis, but finding it harder to keep on top of paperwork and bills and to get out and about to collect pension, visit the bank etc (and not too keen on newfangled internet banking!) Perhaps because I have dealt with a lot of fairly elderly clients.

I still don't get why you wouldn't register it, even if it isn't going to be used straight away. I've been out of the loop for five months now, but when I was last in practice registration was taking up to 3 months. This could potentially be problematic if the person were to lose capacity and donee registration is required before the power can be used.

I also had an EPA for someone and registered it once they were unable to manage. The forms were available to download and I just posted them out to the appropriate relatives. It was all quite straightforward.
Also had to show it to the bank etc

We are just doing this for my mum. We asked her do doctor first whether now was the time to register it. Then the solicitor who drew it up registered it with the Court of Protection (beginning of March). We are still waiting and apparently it will be through by end of May. Before you register it our solicitor advised getting mum to write a cheque to my brother so that he had some money to pay bills as it will be three months before we can access her bank account and some of her bills require paying before the. If your dad does that then wait until that cheque clears before you register the poa

Incidentally I had to call the Dept of Work and Pensions as my mum had gone into hospital and then into a care home as they want you to tell them any change of circumstances. They said that my mum would have to have an "appointee" who would need to be vetted by them and her pension then paid into that oerson's account. I told them that wasn't necessary as there would be a power of attorney but they didn't care. They want someone whom they themselves have vetted and could make phone calls about benefits to handle my mum's benefits. So I had to meet somene at my mum's care home so that they could see for themselves that she has dementia and cannot manage her affairs and that I an trustworthy and sensible. I have had to set up a separate bank account in my name and now her pension is coming into that bank account. I don't see why it couldn't just be paid into her own bank account but there you go.