Quiry: Power of Attorney

Lyra Fangs

Hi, would appreciate any guidance on this as I'm currently very confused.

My mother was previously diagnosed with a form of dementia. She appears to me similar to how she always has been, no major signs of decline etc.

She is currently living in a care facility and as such is not able to look after her affairs.

I need to establish power of attorney (POA) but I can't determine if an ordinary POA will suffice for now or whether, due to her diagnosis, the only option is enduring POA. However, I know enduring POA only becomes 'active' so to speak when she is considered unable to make decisions for herself.


So my questions are:
1. Can I establish an ordinary POA that will allow me to deal with everyday, mundane tasks e.g. dealing with utility providers on her behalf, dealing with her mail? How is this done?
2. For enduring POA, what does the solicitor do? Do they request/organise a medical assessment to determine she is sound of mind? What is the cost of this?
3. Who decides when another medical assessment should be done to determine if she is no longer sound of mind in order to activate the enduring POA? Is it a matter of waiting and seeing and the appointed attorney decides?

Thanks in advance,
Lyra

hullaballoo

Unfortunately, if your mother does not have the capacity to manage her own affairs due to her diagnosis, then the likelihood is she also does not have the capacity to grant an EPOA. To answer your question, it's an EPOA that you would be looking for. A POA is a completely different animal.

But as above, the time has passed for an EPOA in relation to your mother.

To bear even more bad news, and I apologise for doing so, but the need here is to have your mother made a Ward of Court.

That is unless somehow your mother's treating doctors are of the opinion that somehow she retains the capacity to grant an extensive legal power, having lost the capacity to manage her affairs. I'm just a bit doubtful those 2 things can be reconciled.

whippet

Unfortunately it seems like it’s too late.

You can apply to the circuit court to have her made a ward of court in order to manage her affairs. This does not give you power over her affairs .. you would need to apply to the court if you wanted to make any decisions on her behalf.

It’s painful and I’m going through a similar situation at the moment

December2012

Has she actually lost her capacity at the moment, or is it likely to happen soon? She may be able to execute an Enduring Power of Attorney if she still retains her capacity, but you need to do it soon. You need to go to a solicitor who specializes in this area. Sometimes a Dr will advise a patient in the early stages that they should make an EPOA, so speak with her doctor and get proper legal advice from a solicitor acting in the area. A Dr's opinion must be obtained that your mother still has the capacity.

Lyra Fangs

Thanks everyone for your replies.

Just to clarify, she is in a care home because of a separate physical issue that requires daily monitoring and careful management she would not be capable of at home.

The dementia diagnosis is related to/developed from this condition; though its more mild cognitive impairment rather than dementia in the standard sense.

I realise my opinion does not matter from a legal perspective but I don't think she's lost her mental capacity at this point - again it's not a typical case of dementia. She's up to date with current events, knows the date, never has issues with recognising visitors/nurses/doctors etc.

I spoke with her doctor and he said he would only carry out a medical assessment when prompted by a solicitor.

I assume then if she wasn't sound of mind he would advise us against an EPOA and instead indicate that she needs to be made a ward of the court?

hullaballoo

That clarification is helpful.

In that case, I would head straight to your or your mother's solicitor and get the wheels in motion on the EPOA as a matter of priority.

I do not believe it is a particularly expensive process. I granted my wife an EPOA in approx 2015 and it was relatively cheap. Admittedly I only had to pay for the assessment report.

From what you have posted, your mother's doctor appears to be of the view that she has capacity to grant the EPOA and therefore you should prioritise that now before the situation has any adverse developments that will cost a lot more time and money.

December2012

Contact the solicitor today. The solicitor will need to take your mams instructions, but may be able to do that over the phone. Your mother needs to appoint at least one attorney, and she needs to appoint two notice parties, whom she advises that she has made the EPOA. The Dr and the Solicitor sign a certificate if they believe that your mother, at the time of signing the EPOA has sufficient capacity to make it. All parties have various pieces to sign (but not at the same time).

If your mother in the future becomes unable use sufficient capacity to manage her own affairs , you then apply to the High Court to register the EPOA. You must notify her and the notice parties of your intention to make that application.

This is just general advice - you and your mam should take proper legal advice from a solicitor with experience in this area as soon as possible

hullaballoo

Notice parties can trip people up too; another reason to get proper legal advice. It's all fine and dandy (usually) if the donor of the power (your mum) has plenty of living close relatives who are on good terms and not about to pop their clogs.

A whole different ballgame if all relatives as defined by the SI are elderly, infirm, or bollixes.

ohnonotgmail

hullaballoo wrote: »

That clarification is helpful.

In that case, I would head straight to your or your mother's solicitor and get the wheels in motion on the EPOA as a matter of priority.

I do not believe it is a particularly expensive process. I granted my wife an EPOA in approx 2015 and it was relatively cheap. Admittedly I only had to pay for the assessment report.

From what you have posted, your mother's doctor appears to be of the view that she has capacity to grant the EPOA and therefore you should prioritise that now before the situation has any adverse developments that will cost a lot more time and money.

depends what you are comparing it to. we were quote 1250+vat for my mothers EPOA. The final bill was more.

Marcusm

hullaballoo wrote: »

Notice parties can trip people up too; another reason to get proper legal advice. It's all fine and dandy (usually) if the donor of the power (your mum) has plenty of living close relatives who are on good terms and not about to pop their clogs.

A whole different ballgame if all relatives as defined by the SI are elderly, infirm, or bollixes.

From what I have seen it is the third category which is the most difficult and which has led a number of people to avoid the whole process and kick the can down the road.

Lyra Fangs

hullaballoo wrote: »

Notice parties can trip people up too; another reason to get proper legal advice. It's all fine and dandy (usually) if the donor of the power (your mum) has plenty of living close relatives who are on good terms and not about to pop their clogs.

A whole different ballgame if all relatives as defined by the SI are elderly, infirm, or bollixes.

As a bit of unfortunate luck my mother is relatively young so she has plenty of relatives to whom she can give notice to so I don't see this as being a particular issue.

Thanks for highlighting this though, the more information I have the better I can assist with the process.

Assuming the doctor/solicitor are happy with her current mental capacity what allows us to act on her behalf prior to the EPOA activating?

By way of example, even paying for the EPOA, she doesn't have direct access to her own finances.

ohnonotgmail

Lyra Fangs wrote: »

As a bit of unfortunate luck my mother is relatively young so she has plenty of relatives to whom she can give notice to so I don't see this as being a particular issue.

Thanks for highlighting this though, the more information I have the better I can assist with the process.

Assuming the doctor/solicitor are happy with her current mental capacity what allows us to act on her behalf prior to the EPOA activating?

By way of example, even paying for the EPOA, she doesn't have direct access to her own finances.

what is the current situation with her finances? who controls them?

Lyra Fangs

ohnonotgmail wrote: »

what is the current situation with her finances? who controls them?

No one controls them really, bills relating to the family home are covered by the family. The only income she receives is a disability allowance that goes directly to the care home.

Whatever finances she had prior to entering the care home have remained unchanged.

ohnonotgmail

Lyra Fangs wrote: »

No one controls them really, bills relating to the family home are covered by the family. The only income she receives is a disability allowance that goes directly to the care home.

Whatever finances she had prior to entering the care home have remained unchanged.

if she has access to those funds can they be used to pay for her EPOA?

hullaballoo

Lyra Fangs wrote: »

As a bit of unfortunate luck my mother is relatively young so she has plenty of relatives to whom she can give notice to so I don't see this as being a particular issue.

Thanks for highlighting this though, the more information I have the better I can assist with the process.

Assuming the doctor/solicitor are happy with her current mental capacity what allows us to act on her behalf prior to the EPOA activating?

By way of example, even paying for the EPOA, she doesn't have direct access to her own finances.

The solicitor can advise in relation to what can and cannot be done but broadly, until the grant of EPOA, nothing can be done. The solicitor and or doctor may agree to hold off on demanding payment until the EPOA is in place.

Once it is in place but before it is activated so to speak, there are limited things the donee can do even before registration with the WOC Registrar. On registration, the EPOA document itself will specify the extent of the attorney's powers but in most cases these are fairly boilerplate.

Make sure to understand both the extent and limitations on the powers being granted as well as the obligations you have to not abuse your position. Seems obvious but it's not so obvious that no one has ever gotten themselves in trouble for overreaching.

Lyra Fangs

ohnonotgmail wrote: »

if she has access to those funds can they be used to pay for her EPOA?

She doesn't have direct access as she can't freely leave the care home. It would require a member of the family to bring her to the bank. This could be an option for once off transactions such as the EPOA.

However, for more general tasks as I mentioned in my initial post - dealing with utility providers/taking care of mail etc - how can we protect ourselves from a legal POV prior to the EPOA being activated? Will written permission from my mother suffice as in the case of an ordinary power of attorney?

I'm just trying to understand what will fill the gap between now and the point at which she's classed mentally unfit and the EPOA is activated.

ohnonotgmail

Lyra Fangs wrote: »

She doesn't have direct access as she can't freely leave the care home. It would require a member of the family to bring her to the bank. This could be an option for once off transactions such as the EPOA.

However, for more general tasks as I mentioned in my initial post - dealing with utility providers/taking care of mail etc - how can we protect ourselves from a legal POV prior to the EPOA being activated? Will written permission from my mother suffice as in the case of an ordinary power of attorney?

I'm just trying to understand what will fill the gap between now and the point at which she's classed mentally unfit and the EPOA is activated.

that is something that requires legal advice based on all of the relevant facts. you really need to talk to a solicitor for that.

whippet

No body here can advise you .. ignoring the fact that it’s against the charter of the boards here ... but without knowing what your mothers mental capacity is .. no one can give an opinion.

Only a doctor can decide on the mental capacity for her to make decisions. Even bringing her to a bank to make a payment / withdraw money could be considered in a very negative light.

Also don’t assume that all close family members will agree on anything .. you can be sure of some level of disagreement and arguments