Lasting Power of Attorney - One Attorney later diagnosed with dementia. What to do?

[DiamondEcho]

I'd be very grateful for any pointers on the following family situation.

The family is 2 parents and 2 children. Some years ago the parents, via their solicitors, registered Lasting Power of Attorney documents. The LPoA's were made on a 'Jointly and Severally' basis. The Donors are the parents, the Attorneys are all four family members.

One parent has recently been formally diagnosed with dementia. I see that an Attorney 'must have the mental capacity to understand and make decisions'. The question is whether this parent now has the capacity to legally act as an Attorney? If not, is the best course of action to formally cancel [?] their role as an Attorney? Or as the PoA has a 'Jointly and Severally' basis, could all Attorneys continue to be consulted on matters requiring decisions, but if needs be the 'best interests' be decided excluding the dementia sufferer?

Another angle on the question. Should the LPoA have a formally diagnosed dementia sufferer Donor/Attorney removed as an Attorney for the LPoA to continue and 'remain valid'.

Looking into this I can see many articles on LPoA Donors concerning if they have or are later diagnosed with dementia. I can't find anything concerning when an Attorney is later diagnosed with it.

Thanks for any help.

[Dod101]

I'd be very grateful for any pointers on the following family situation.

The family is 2 parents and 2 children. Some years ago the parents, via their solicitors, registered Lasting Power of Attorney documents. The LPoA's were made on a 'Jointly and Severally' basis. The Donors are the parents, the Attorneys are all four family members.

One parent has recently been formally diagnosed with dementia. The question is whether this parent now has the capacity to legally act as an Attorney? If not, is the best course of action to formally cancel [?] their role as an Attorney? Or as the PoA has a 'Jointly and Severally' basis, could all Attorneys continue to be consulted on matters requiring decisions, but if needs be the 'best interests' be decided excluding the dementia sufferer?

Another angle on the question. Should the LPoA have a formally diagnosed dementia sufferer Donor/Attorney removed as an Attorney for the LPoA to continue and 'remain valid'.

Thanks for any help.

Am I missing something? All four family members are Attorneys? For whom? Surely the parents are not, in addition to the two children, acting as Attorneys for themselves? Individuals do not appoint themselves as Attorney for themselves. That is superfluous if nothing else. Anyway, surely if an appointed Attorney has dementia, they cannot take decisions for themselves never mind for others and they would surely be disqualified without any further action being required.

If I were you, I would be discussing this with the parent who is still 'with it' and get them to agree if possible, that the two children be appointed as Attorney for that parent and take advice/use the existing Powers of Attorney to look after the affairs of the parent with dementia.

Sounds a bit of a legal quagmire.

Dod

[didds]

If in doubt, set them up anew ?

[tacpot12]

The donor doesn't need to remove the attorney that has been diagnosed with Dementia. They can do so if they wish, by making a new PoA, but the result is just further cost. It doesn't change anything. The attorney that has Dementia can't act if they have lost capacity and will not regain it. This link confirms this point: https://www.gov.uk/lasting-power-attorn ... p-attorney

However the link is silent on the situation if the attorney has capacity at some time, and not at others. They might have capacity to make simple decisions, but not complex ones, and in the spirit of the mental health act, they should perhaps be helped to make decisions that they can safely make, e.g. whether to move the donor's money to get a better interest rate.

To some degree, the condition might be come self-limiting, e.g. the sufferer might not remember where they keep the password details to perform online transactions in their role as attorney, or even that they have power of attorney!

The problem comes if the attorney doesn't accept that they don't have capacity and wants to make a decision (or has made a decision) that the other attorneys think is a bad idea. This is one of the downsides to attorneys being able to act jointly and severally - one of them might do something that the others wish they had not done, but all you can do is try to persaude the attorney with dementia that they should stop.

I expect this situation is more common than we realise as many elderly couples appoint each other and their children as their attorneys. As the couple start to lose capacity, it can be difficult for each to give up caring for their partner in the way they perhaps should.

[pochisoldi]

"Capacity" is not an absolute - someone may lose capacity to do some things and retain it to do others. Someone may lose capacity for a period of time, and then regain it. This applies to both the donor and the attorney.

One question - does the attorney with the diagnosis have an LPA, and if so, does it appoint any common attorneys? (In other words are any of the other three attorneys also attoneys for the 4th one?)

[DrFfybes]

I think the potential issue is if the person losing the capacity is continued to be authorised to act, and then falls victim to some sort of scam.

The whole purpose of a PoA is to be able to act for someone once they lose capacity, so the first step should be to remove the person named from any bank account signatory sheets etc. However I think you can only make a PoA up when you are mentally capable, so certainly they cannot change theirs.

Paul

[Clitheroekid]

The sensible option would appear to be for the parent with capacity to revoke the appointment of the parent without capacity. This would leave the LPA's fully operational, but with only the two children as the attorneys.

This can be achieved by a `partial deed of revocation' - https://www.gov.uk/power-of-attorney/ch ... f-attorney

[DiamondEcho]

One question - does the attorney with the diagnosis have an LPA, and if so, does it appoint any common attorneys? (In other words are any of the other three attorneys also attoneys for the 4th one?)

Hi PS,

The original letter I received from the solicitor enclosing the LPAs 'for you attention' ie signature reads as follows. Hopefully this clarifies the common or crossed nature of power granted.

'Lasting Powers of Attorney for [father] & [mother]
As you will be aware your parents have decided to appoint you as one of their Attorneys in their Lasting Powers of Attorney (LPA) - Property and Financial Affairs. A property and Financial Affairs LPA is a legal document that allows someone (known as a Donor) to appoint somebody they trust (known as an Attorney) to make decisions on their behalf about their property and financial affairs.

Your parents have chosen each other, you and your sister for this role.' [continues].