Do I Need A Power Of Attorney? Will I Need A Lawyer?31st Jan 2020
You’re worried about an elderly loved one. They’re forgetting things and becoming confused more often.
You’ve considered a power of attorney (and perhaps mentioned it to them) so you can legally make decisions on their behalf if they lose the mental capacity to do so themselves.
But then for whatever reason you dismissed the idea. After all, you’re looking after them already; running errands for them,
paying bills for them. Why would you need a power of attorney?
Lots of reasons. Very important reasons…
Are You Getting By On Luck Rather Than Judgment?
In my experience, too many carers are riding their luck. They’re risking all kinds of legal costs and pitfalls – often without realising it.
And all because their loved one didn’t put powers of attorney in place. Yes, you read that correctly: powers plural – because you need more than one.
Why Would I Need Power Of Attorney If My Name Is Jointly On The Person's Bank Account?
It is a common misconception that you don’t need a power of attorney if you’re already named on the account. You do.
Here’s one situation that explains why…
Your elderly parents have a joint bank account. They added you as a third name so you can help them to organise their finances and pay bills.
And here’s the problem. The account is a complex mess of payments and withdrawals. It’s getting harder to spot which transactions relate to Mum (who is fine mentally) and which are for Dad (who has lost capacity).
The Court of Protection takes a very dim view of any mixing of finances in a vulnerable person’s account because there is a greater risk of money going astray.
The bank is equally concerned so plays it safe by freezing the account. That leaves you and your elderly parents with a logistical nightmare. How do you get to their money to pay their monthly household bills?
You should have put in place a Property And Financial Affairs lasting power of attorney. And taken advice from a solicitor on how to implement it in accordance with the law.
What If My Elderly Relative Is In A Care Home Or A Retirement Living Rental Property? There Would Be No Property Sale Or Estate To Manage
Yes there would. There is almost always some form of financial estate to manage (even if it doesn’t include a family home).
And it’s not all about wealth. What about the health of the person? What if important medical decisions are needed?
With no power of attorney, you would need a ‘best interests meeting’ to decide the way forward for the vulnerable person. These meetings (usually instigated by social services) can be complex, time-consuming and costly.
I recall one such meeting at which no fewer than 13 different professionals were present. They included two other solicitors, a barrister, social workers, an occupational therapist, care home staff and council representatives.
All that uncertainty could have been avoided with a Health and Welfare power of attorney.
I Manage Their Bills For Them Anyway, Surely I Don’t Need Power Of Attorney To Do This?
So you manage their bills. On whose authority? What proof do you have if the Court of Protection is unhappy with the way you have been handling the finances.
You have no formal document in place. And you can’t rely on the testimony of your loved one because they have lost their mental capacity.
It is far better to formalise these arrangements with a power of attorney.
If A Power Of Attorney Is Essential, Could I Not Just Complete One Online?
You could. But DIY powers of attorney downloaded from the internet can backfire just as easily and as badly as a DIY will. Neither is recommended.
What if you fill in the form incorrectly? What if you get the signing process wrong? A power of attorney must be signed in the correct order by the:
- donor – the person giving the authority
- certificate provider – the person who confirms that a power of attorney is needed
- attorney(s) – who take on the responsibility of decision-making.
In the past, certificate providers would usually be recognised professionals such as solicitors, barristers or doctors. But now the law is much more flexible – which is leading to all kinds of problems.
Here’s an example: the Court of Protection judge asks the certificate provider whether the donor had mental capacity when they signed the LPA. The provider says they did.
So the judge then quite rightly asks:
- How do you know for sure?
- How familiar are you with the Mental Capacity Act?
- In what professional capacity do you speak?
- What is your expertise in assessing mental capacity?
- What tests did you perform to confirm beyond doubt that the donor had lost capacity?
And at that point the DIY power of attorney starts to look far from reliable as far as the court is concerned. Especially if the attorneys have not discharged their roles correctly.
As a Court of Protection panel deputy, I am frequently called on to look into instances where a power of attorney or deputyship (in the absence of a POA) has failed or been abused.
The words I hear from those who got it wrong are always the same: “No one told us what to do.”
That is because they did not take legal advice from a solicitor who specialises in lasting powers of attorney.
Find Out More About Powers Of Attorney
Are you are concerned about a loved one’s mental capacity? Do you need powers of attorney to help take care of them?
Contact Coles Miller Partner Stuart Bradford, head of the Probate Department for expert advice.
Stuart is a Court of Protection Panel Deputy (one of only 10 in the South West and the only one in Dorset). He works with the Office of the Public Guardian to provide legal protection to people who have lost the ability to make decisions and have no friends or family to help them.