A friend's mother has dementia and has had to be placed in a care home. 
Her daughter has been given Power of Attorney.

The mother had little money but did own her own home, and as a result
is required to fund her own care home fees.  The house has been sold
and has realised approx £100k.

In this situation would it be legal for the daughter to make exempt
lifetime transfers of £3000 for the current and previous tax years from
her mother's money?




-- 
Earthling

> A friend's mother has dementia and has had to be placed in a care home.
> Her daughter has been given Power of Attorney.
>
> The mother had little money but did own her own home, and as a result
> is required to fund her own care home fees.  The house has been sold
> and has realised approx £100k.
>
> In this situation would it be legal for the daughter to make exempt
> lifetime transfers of £3000 for the current and previous tax years from
> her mother's money?


The local authority can ignore such transfers so it will not prevent the 
money falling into their hands. Secondly the person holding the power of 
attorney should have registered it. The holder of the POA is legally obliged 
to act in the best interests of the person so it is unlikely that giving the 
money away will meet that criteria.


Peter Crosland

On Fri,  4 Jul 2008 01:10:04 퍝, Earthling
 wrote:

>
>A friend's mother has dementia and has had to be placed in a care home. 
>Her daughter has been given Power of Attorney.
>
>The mother had little money but did own her own home, and as a result
>is required to fund her own care home fees.  The house has been sold
>and has realised approx £100k.
>
>In this situation would it be legal for the daughter to make exempt
>lifetime transfers of £3000 for the current and previous tax years from
>her mother's money?

Of course... everybody does that. Included presents for the
grandchildren, which cannot be contested.

And don't get intimidated by the LA Nazis who try to find out all your
business.  You will also get some PC advice here from the usual
suspects...

On 4 Jul, 01:10, Earthling  wrote:
> A friend's mother has dementia and has had to be placed in a care home.
> Her daughter has been given Power of Attorney.
>
> The mother had little money but did own her own home, and as a result
> is required to fund her own care home fees.  The house has been sold
> and has realised approx £100k.
>
> In this situation would it be legal for the daughter to make exempt
> lifetime transfers of £3000 for the current and previous tax years from
> her mother's money?
>
> --
> Earthling

Before the mother got dementia she *could* have given her daughter
power of attoney over her affairs, as any of us can when we are sane.

What is much more likely here is that the mother, when she was sane,
signed an Enduring Power of Attorney, stating that if she ever lost
the ability to act for herself her daughter could make decisions for
her.

As Peter suggests:

1) It must be registered at the Court of Protection.
2) The court will supervise all payments on the mothers behalf.
3) Anything in the way of a non-trivial gift to anyone else is
extremely unlikely to be an option.

troysteadman@yahoo.co.uk wrote:
> On 4 Jul, 01:10, Earthling  wrote:
>> A friend's mother has dementia and has had to be placed in a care
>> home. Her daughter has been given Power of Attorney.
>>
>> The mother had little money but did own her own home, and as a result
>> is required to fund her own care home fees. The house has been sold
>> and has realised approx £100k.
>>
>> In this situation would it be legal for the daughter to make exempt
>> lifetime transfers of £3000 for the current and previous tax years
>> from her mother's money?
>>
>> --
>> Earthling
>
> Before the mother got dementia she *could* have given her daughter
> power of attoney over her affairs, as any of us can when we are sane.
>
> What is much more likely here is that the mother, when she was sane,
> signed an Enduring Power of Attorney, stating that if she ever lost
> the ability to act for herself her daughter could make decisions for
> her.
>
> As Peter suggests:
>
> 1) It must be registered at the Court of Protection.
> 2) The court will supervise all payments on the mothers behalf.
> 3) Anything in the way of a non-trivial gift to anyone else is
> extremely unlikely to be an option.

One plan of action is for the daughter to avoid registering the Power of 
Attorney as long as her mother is reasonably lucid most of the time. She may 
have dementia, but that does not necessarily mean that she is incapable of 
making decisions. Dementia may just mean that she has a poor memory. If the 
mother can, of her own free will, make presents, she should probably be 
encouraged to do so.

I am not an expert on local authority law (actually that probably overstates 
my knowledge!), but I do not see why the gifts should be limited to £3,000. 
That limit applies for IHT purposes, but unless mum has already given away 
over £300k in the last 7 years, I can't see that that matters.

Peter Crosland;537169 Wrote: 
> The local authority can ignore such transfers so it will not prevent the
> money falling into their hands ....

If the money has gone it's gone.  Are you saying the local authority
could pursue the transferee for recovery of the money?  Or perhaps sue
the person holding the Power of Attorney?  I have difficulty believing
that in practice local authorities would be likely to pursue such
action, but I have no relevant experience.




-- 
Earthling

>>> A friend's mother has dementia and has had to be placed in a care
>>> home. Her daughter has been given Power of Attorney.
>>>
>>> The mother had little money but did own her own home, and as a result
>>> is required to fund her own care home fees. The house has been sold
>>> and has realised approx £100k.
>>>
>>> In this situation would it be legal for the daughter to make exempt
>>> lifetime transfers of £3000 for the current and previous tax years
>>> from her mother's money?
>>>
>>> --
>>> Earthling
>>
>> Before the mother got dementia she *could* have given her daughter
>> power of attoney over her affairs, as any of us can when we are sane.
>>
>> What is much more likely here is that the mother, when she was sane,
>> signed an Enduring Power of Attorney, stating that if she ever lost
>> the ability to act for herself her daughter could make decisions for
>> her.
>>
>> As Peter suggests:
>>
>> 1) It must be registered at the Court of Protection.
>> 2) The court will supervise all payments on the mothers behalf.
>> 3) Anything in the way of a non-trivial gift to anyone else is
>> extremely unlikely to be an option.
>
> One plan of action is for the daughter to avoid registering the Power of
> Attorney as long as her mother is reasonably lucid most of the time. She 
> may
> have dementia, but that does not necessarily mean that she is incapable of
> making decisions. Dementia may just mean that she has a poor memory. If 
> the
> mother can, of her own free will, make presents, she should probably be
> encouraged to do so.

Ignoring the law should seldom be taken lightly. In this case ignoring the 
law on registering the EPOA or LPOA is the by doing so the attorney could 
end up having to pay back any sums that they paid out  unlawfully.

> I am not an expert on local authority law (actually that probably 
> overstates
> my knowledge!), but I do not see why the gifts should be limited to 
> £3,000.
> That limit applies for IHT purposes, but unless mum has already given away
> over £300k in the last 7 years, I can't see that that matters.

The IHT provisions on gifts are irrelevant in this context. The law on what 
funds can be taken by the local authority to pay for care contain provisions 
that mean that giving money away in this manner is disregarded in 
calculating the assets of the person concerned. If it were not so then 
people could dissipate their assets rather than contribute to their care. Of 
course there are arguments against this on principle but it is the law.

Peter Crosland

> Peter Crosland;537169 Wrote:
>> The local authority can ignore such transfers so it will not prevent the
>> money falling into their hands ....
>
> If the money has gone it's gone.  Are you saying the local authority
> could pursue the transferee for recovery of the money?  Or perhaps sue
> the person holding the Power of Attorney?  I have difficulty believing
> that in practice local authorities would be likely to pursue such
> action, but I have no relevant experience.


The local authority will only take money up to a certain limit so that the 
person is left with some funds. However, they can , and indeed often do, put 
a charge on the property the person lived in even if their spouse is still 
living there. They may not necessarily force a sale of the property whilst 
the spouse is alive but will recoup it, plus interest, when the spouse dies. 
Personally I find the whole thing repugnant but that is only an opinion and 
not the law. Take a look here for more information.

http://www.gpss.tripoduk.com/nhscare/overview.htm

Peter Crosland

On 4 Jul, 19:10, Earthling  wrote:
> Peter Crosland;537169 Wrote:
>
> > The local authority can ignore such transfers so it will not prevent the
> > money falling into their hands ....
>
> If the money has gone it's gone.  Are you saying the local authority
> could pursue the transferee for recovery of the money?  Or perhaps sue
> the person holding the Power of Attorney?  I have difficulty believing
> that in practice local authorities would be likely to pursue such
> action, but I have no relevant experience.
>

See www.ageconcern.org.uk/AgeConcern/Documents/TRANSFEROFASSETSFS40JUN07.pdf

Toom

On 4 Jul, 01:10, Earthling  wrote:
> A friend's mother has dementia and has had to be placed in a care home.
> Her daughter has been given Power of Attorney.
>
> The mother had little money but did own her own home, and as a result
> is required to fund her own care home fees.  The house has been sold
> and has realised approx £100k.
>
> In this situation would it be legal for the daughter to make exempt
> lifetime transfers of £3000 for the current and previous tax years from
> her mother's money?
>

It would probably be regarded as 'intentional deprivation of capital
assets'

www.ageconcern.org.uk/AgeConcern/Documents/TRANSFEROFASSETSFS40JUN07.pdf

Toom

GB;537268 Wrote: 
> troysteadman@yahoo.co.uk wrote:-
> On 4 Jul, 01:10, Earthling solihull63DU...@lineone.net.NO.WAY wrote:-
> A friend's mother has dementia and has had to be placed in a care
> home. Her daughter has been given Power of Attorney.
> 
> The mother had little money but did own her own home, and as a result
> is required to fund her own care home fees. The house has been sold
> and has realised approx £100k.
> 
> In this situation would it be legal for the daughter to make exempt
> lifetime transfers of £3000 for the current and previous tax years
> from her mother's money?
> 
> --
> Earthling-
> 
> Before the mother got dementia she *could* have given her daughter
> power of attoney over her affairs, as any of us can when we are sane.
> 
> What is much more likely here is that the mother, when she was sane,
> signed an Enduring Power of Attorney, stating that if she ever lost
> the ability to act for herself her daughter could make decisions for
> her.
> 
> As Peter suggests:
> 
> 1) It must be registered at the Court of Protection.
> 2) The court will supervise all payments on the mothers behalf.
> 3) Anything in the way of a non-trivial gift to anyone else is
> extremely unlikely to be an option.-
> 
> One plan of action is for the daughter to avoid registering the Power
> of 
> Attorney as long as her mother is reasonably lucid most of the time.
> She may 
> have dementia, but that does not necessarily mean that she is incapable
> of 
> making decisions. Dementia may just mean that she has a poor memory. If
> the 
> mother can, of her own free will, make presents, she should probably be
> 
> encouraged to do so.
> 
> I am not an expert on local authority law (actually that probably
> overstates 
> my knowledge!), but I do not see why the gifts should be limited to
> £3,000. 
> That limit applies for IHT purposes, but unless mum has already given
> away 
> over £300k in the last 7 years, I can't see that that matters.

Thanks for all the replies, they do help clarify the position.  It
seems the mum is never lucid now - doesn't even know her own daughter. 
So even if it is just an Enduring PoA mum would not be capable of making
these gifts herself, and I'm told the daughter's conscience would not
let her take these decisions unilaterally.

My own view is that since it will be at least two years before the
capital is depleted to the point where the local authority has to start
funding the care, then it would be safe for her to make these smallish
gifts now with little risk of any comeback later on.

But then I am not the daughter.




-- 
Earthling

>> A friend's mother has dementia and has had to be placed in a care
>> home. Her daughter has been given Power of Attorney.
>>
>> The mother had little money but did own her own home, and as a result
>> is required to fund her own care home fees. The house has been sold
>> and has realised approx £100k.
>>
>> In this situation would it be legal for the daughter to make exempt
>> lifetime transfers of £3000 for the current and previous tax years
>> from her mother's money?
>>
>> --
>> Earthling-
>>
>> Before the mother got dementia she *could* have given her daughter
>> power of attoney over her affairs, as any of us can when we are sane.
>>
>> What is much more likely here is that the mother, when she was sane,
>> signed an Enduring Power of Attorney, stating that if she ever lost
>> the ability to act for herself her daughter could make decisions for
>> her.
>>
>> As Peter suggests:
>>
>> 1) It must be registered at the Court of Protection.
>> 2) The court will supervise all payments on the mothers behalf.
>> 3) Anything in the way of a non-trivial gift to anyone else is
>> extremely unlikely to be an option.-
>>
>> One plan of action is for the daughter to avoid registering the Power
>> of
>> Attorney as long as her mother is reasonably lucid most of the time.
>> She may
>> have dementia, but that does not necessarily mean that she is incapable
>> of
>> making decisions. Dementia may just mean that she has a poor memory. If
>> the
>> mother can, of her own free will, make presents, she should probably be
>>
>> encouraged to do so.
>>
>> I am not an expert on local authority law (actually that probably
>> overstates
>> my knowledge!), but I do not see why the gifts should be limited to
>> £3,000.
>> That limit applies for IHT purposes, but unless mum has already given
>> away
>> over £300k in the last 7 years, I can't see that that matters.
>
> Thanks for all the replies, they do help clarify the position.  It
> seems the mum is never lucid now - doesn't even know her own daughter.
> So even if it is just an Enduring PoA mum would not be capable of making
> these gifts herself, and I'm told the daughter's conscience would not
> let her take these decisions unilaterally.
>
> My own view is that since it will be at least two years before the
> capital is depleted to the point where the local authority has to start
> funding the care, then it would be safe for her to make these smallish
> gifts now with little risk of any comeback later on.
>
> But then I am not the daughter.

If the mother is that mentally impaired then the time for the POA to be 
registered is here. If the daughter does not register it she is not only 
liable for any money that is not used appropriately but she could be 
prosecuted as well. You should advise her to register is now if she has not 
already done so. The making of any gifts of more than a few pounds would not 
be appropriate.

Peter Crosland

"Peter Crosland"  wrote in message 
news:srydnao-Z-Cq9_PVnZ2dneKdnZydnZ2d@posted.plusnet...
>> One plan of action is for the daughter to avoid registering the Power of
>> Attorney as long as her mother is reasonably lucid most of the time. She
>> may
>> have dementia, but that does not necessarily mean that she is incapable 
>> of
>> making decisions. Dementia may just mean that she has a poor memory. If
>> the
>> mother can, of her own free will, make presents, she should probably be
>> encouraged to do so.
>
> Ignoring the law should seldom be taken lightly. In this case ignoring the
> law on registering the EPOA or LPOA is the by doing so the attorney could
> end up having to pay back any sums that they paid out  unlawfully.

In what way is that ignoring the law?


>> I am not an expert on local authority law (actually that probably
>> overstates
>> my knowledge!), but I do not see why the gifts should be limited to
>> £3,000.
>> That limit applies for IHT purposes, but unless mum has already given 
>> away
>> over £300k in the last 7 years, I can't see that that matters.
>
> The IHT provisions on gifts are irrelevant in this context. The law on 
> what
> funds can be taken by the local authority to pay for care contain 
> provisions
> that mean that giving money away in this manner is disregarded in
> calculating the assets of the person concerned. If it were not so then
> people could dissipate their assets rather than contribute to their care. 
> Of
> course there are arguments against this on principle but it is the law.
>
> Peter Crosland
>
>
>

On 5 Jul, 01:10, Earthling  wrote:
> GB;537268 Wrote:
>
>
>
>
>
> > troystead...@yahoo.co.uk wrote:-
> > On 4 Jul, 01:10, Earthling solihull63DU...@lineone.net.NO.WAY wrote:-
> > A friend's mother has dementia and has had to be placed in a care
> > home. Her daughter has been given Power of Attorney.
>
> > The mother had little money but did own her own home, and as a result
> > is required to fund her own care home fees. The house has been sold
> > and has realised approx £100k.
>
> > In this situation would it be legal for the daughter to make exempt
> > lifetime transfers of £3000 for the current and previous tax years
> > from her mother's money?
>
> > --
> > Earthling-
>
> > Before the mother got dementia she *could* have given her daughter
> > power of attoney over her affairs, as any of us can when we are sane.
>
> > What is much more likely here is that the mother, when she was sane,
> > signed an Enduring Power of Attorney, stating that if she ever lost
> > the ability to act for herself her daughter could make decisions for
> > her.
>
> > As Peter suggests:
>
> > 1) It must be registered at the Court of Protection.
> > 2) The court will supervise all payments on the mothers behalf.
> > 3) Anything in the way of a non-trivial gift to anyone else is
> > extremely unlikely to be an option.-
>
> > One plan of action is for the daughter to avoid registering the Power
> > of
> > Attorney as long as her mother is reasonably lucid most of the time.
> > She may
> > have dementia, but that does not necessarily mean that she is incapable
> > of
> > making decisions. Dementia may just mean that she has a poor memory. If
> > the
> > mother can, of her own free will, make presents, she should probably be
>
> > encouraged to do so.
>
> > I am not an expert on local authority law (actually that probably
> > overstates
> > my knowledge!), but I do not see why the gifts should be limited to
> > £3,000.
> > That limit applies for IHT purposes, but unless mum has already given
> > away
> > over £300k in the last 7 years, I can't see that that matters.
>
> Thanks for all the replies, they do help clarify the position.  It
> seems the mum is never lucid now - doesn't even know her own daughter.
> So even if it is just an Enduring PoA mum would not be capable of making
> these gifts herself, and I'm told the daughter's conscience would not
> let her take these decisions unilaterally.
>
> My own view is that since it will be at least two years before the
> capital is depleted to the point where the local authority has to start
> funding the care, then it would be safe for her to make these smallish
> gifts now with little risk of any comeback later on.
>
> But then I am not the daughter.
>
> --
> Earthling- Hide quoted text -
>
> - Show quoted text -

You are quoting some earlier responses which talk about limits for
inheritance tax purposes. That is irrelevant.
You should seek expert advice on what would be acceptable as 'small
gifts' from capital which is funding care now. If the care has started
now it doesn't matter when the local authority will start funding.
What matters is what the assets are now and what happens to them.

Again, I'd point you to www.ageconcern.org.uk/AgeConcern/Documents/TRANSFEROFASSETSFS40JUN07.pdf
which covers these points comprehensively.

Toom

>>> One plan of action is for the daughter to avoid registering the Power of
>>> Attorney as long as her mother is reasonably lucid most of the time. She
>>> may
>>> have dementia, but that does not necessarily mean that she is incapable
>>> of
>>> making decisions. Dementia may just mean that she has a poor memory. If
>>> the
>>> mother can, of her own free will, make presents, she should probably be
>>> encouraged to do so.
>>
>> Ignoring the law should seldom be taken lightly. In this case ignoring 
>> the
>> law on registering the EPOA or LPOA is the by doing so the attorney could
>> end up having to pay back any sums that they paid out  unlawfully.
>
> In what way is that ignoring the law?

Because the law requires that the POA be registered with the Court of 
Protection once the person lacks mental capacity to act for themselves. 
Furthermore the holder of the OA is legal obligated to act only in the best 
interests of the person concerned. Acting improperly is a serious breach of 
trust and in some cases can be criminal as well.


>>> I am not an expert on local authority law (actually that probably
>>> overstates
>>> my knowledge!), but I do not see why the gifts should be limited to
>>> £3,000.
>>> That limit applies for IHT purposes, but unless mum has already given
>>> away
>>> over £300k in the last 7 years, I can't see that that matters.
>>
>> The IHT provisions on gifts are irrelevant in this context. The law on
>> what
>> funds can be taken by the local authority to pay for care contain
>> provisions
>> that mean that giving money away in this manner is disregarded in
>> calculating the assets of the person concerned. If it were not so then
>> people could dissipate their assets rather than contribute to their care.
>> Of
>> course there are arguments against this on principle but it is the law.


Peter Crosland

Toom Tabard;537336 Wrote: 
> On 4 Jul, 01:10, Earthling solihull63DU...@lineone.net.NO.WAY wrote:-
> A friend's mother has dementia and has had to be placed in a care
> home.
> Her daughter has been given Power of Attorney.
> 
> The mother had little money but did own her own home, and as a result
> is required to fund her own care home fees. *The house has been sold
> and has realised approx £100k.
> 
> In this situation would it be legal for the daughter to make exempt
> lifetime transfers of £3000 for the current and previous tax years
> from
> her mother's money?
> -
> 
> It would probably be regarded as 'intentional deprivation of capital
> assets'
> 
> http://tinyurl.com/68omcq
> 
> Toom

The Age Concern pamphlet completely answers my original question.  I
shall ensure the daughter gets to see it.  Many thanks.




-- 
Earthling

"Peter Crosland"  wrote in message 
news:zdydnbpnPt-Sy_LVnZ2dnUVZ8rCdnZ2d@posted.plusnet...
>>>> One plan of action is for the daughter to avoid registering the Power 
>>>> of
>>>> Attorney as long as her mother is reasonably lucid most of the time. 
>>>> She
>>>> may
>>>> have dementia, but that does not necessarily mean that she is incapable
>>>> of
>>>> making decisions. Dementia may just mean that she has a poor memory. If
>>>> the
>>>> mother can, of her own free will, make presents, she should probably be
>>>> encouraged to do so.
>>>
>>> Ignoring the law should seldom be taken lightly. In this case ignoring
>>> the
>>> law on registering the EPOA or LPOA is the by doing so the attorney 
>>> could
>>> end up having to pay back any sums that they paid out  unlawfully.
>>
>> In what way is that ignoring the law?
>
> Because the law requires that the POA be registered with the Court of
> Protection once the person lacks mental capacity to act for themselves.
> Furthermore the holder of the OA is legal obligated to act only in the 
> best
> interests of the person concerned. Acting improperly is a serious breach 
> of
> trust and in some cases can be criminal as well.

That's all well known. In what way does it conflict with what I said?

>>>>> One plan of action is for the daughter to avoid registering the Power
>>>>> of
>>>>> Attorney as long as her mother is reasonably lucid most of the time.
>>>>> She
>>>>> may
>>>>> have dementia, but that does not necessarily mean that she is 
>>>>> incapable
>>>>> of
>>>>> making decisions. Dementia may just mean that she has a poor memory. 
>>>>> If
>>>>> the
>>>>> mother can, of her own free will, make presents, she should probably 
>>>>> be
>>>>> encouraged to do so.
>>>>
>>>> Ignoring the law should seldom be taken lightly. In this case ignoring
>>>> the
>>>> law on registering the EPOA or LPOA is the by doing so the attorney
>>>> could
>>>> end up having to pay back any sums that they paid out  unlawfully.
>>>
>>> In what way is that ignoring the law?
>>
>> Because the law requires that the POA be registered with the Court of
>> Protection once the person lacks mental capacity to act for themselves.
>> Furthermore the holder of the OA is legal obligated to act only in the
>> best
>> interests of the person concerned. Acting improperly is a serious breach
>> of
>> trust and in some cases can be criminal as well.
>
> That's all well known. In what way does it conflict with what I said?


The OP has stated that the person concerned is never lucid therefore the POA 
should have already been registered. Not registering a POA when legally 
required to is a serious matter. In any case it is extremely doubtful that 
making any gifts would come within the remit of the POA. Your post clearly 
implied that the requirement to register the POA could be ignored.

Peter Crosland

Toom Tabard;537419 Wrote: 
> 
> Again, I'd point you to http://tinyurl.com/68omcq
> which covers these points comprehensively.
> 
> Toom

I acknowledged this in #12




-- 
Earthling

"Peter Crosland"  wrote in message 
news:IYSdnU7UxevzMPLVRVnyigA@posted.plusnet...
>>>>>> One plan of action is for the daughter to avoid registering the Power
>>>>>> of
>>>>>> Attorney as long as her mother is reasonably lucid most of the time.
>>>>>> She
>>>>>> may
>>>>>> have dementia, but that does not necessarily mean that she is
>>>>>> incapable
>>>>>> of
>>>>>> making decisions. Dementia may just mean that she has a poor memory.
>>>>>> If
>>>>>> the
>>>>>> mother can, of her own free will, make presents, she should probably
>>>>>> be
>>>>>> encouraged to do so.
>>>>>
>>>>> Ignoring the law should seldom be taken lightly. In this case ignoring
>>>>> the
>>>>> law on registering the EPOA or LPOA is the by doing so the attorney
>>>>> could
>>>>> end up having to pay back any sums that they paid out  unlawfully.
>>>>
>>>> In what way is that ignoring the law?
>>>
>>> Because the law requires that the POA be registered with the Court of
>>> Protection once the person lacks mental capacity to act for themselves.
>>> Furthermore the holder of the OA is legal obligated to act only in the
>>> best
>>> interests of the person concerned. Acting improperly is a serious breach
>>> of
>>> trust and in some cases can be criminal as well.
>>
>> That's all well known. In what way does it conflict with what I said?
>
>
> The OP has stated that the person concerned is never lucid therefore the 
> POA
> should have already been registered. Not registering a POA when legally
> required to is a serious matter. In any case it is extremely doubtful that
> making any gifts would come within the remit of the POA. Your post clearly
> implied that the requirement to register the POA could be ignored.
>
> Peter Crosland

The OP has indeed stated that, in a posting dated 5 July. Your criticism of 
what I said was dated 4 July. So, please justify it based on the information 
available then, or perhaps simply accept that your criticism was actually 
not justified.

>>>>>>> One plan of action is for the daughter to avoid registering the 
>>>>>>> Power
>>>>>>> of
>>>>>>> Attorney as long as her mother is reasonably lucid most of the time.
>>>>>>> She
>>>>>>> may
>>>>>>> have dementia, but that does not necessarily mean that she is
>>>>>>> incapable
>>>>>>> of
>>>>>>> making decisions. Dementia may just mean that she has a poor memory.
>>>>>>> If
>>>>>>> the
>>>>>>> mother can, of her own free will, make presents, she should probably
>>>>>>> be
>>>>>>> encouraged to do so.
>>>>>>
>>>>>> Ignoring the law should seldom be taken lightly. In this case 
>>>>>> ignoring
>>>>>> the
>>>>>> law on registering the EPOA or LPOA is the by doing so the attorney
>>>>>> could
>>>>>> end up having to pay back any sums that they paid out  unlawfully.
>>>>>
>>>>> In what way is that ignoring the law?
>>>>
>>>> Because the law requires that the POA be registered with the Court of
>>>> Protection once the person lacks mental capacity to act for themselves.
>>>> Furthermore the holder of the OA is legal obligated to act only in the
>>>> best
>>>> interests of the person concerned. Acting improperly is a serious 
>>>> breach
>>>> of
>>>> trust and in some cases can be criminal as well.
>>>
>>> That's all well known. In what way does it conflict with what I said?
>>
>>
>> The OP has stated that the person concerned is never lucid therefore the
>> POA
>> should have already been registered. Not registering a POA when legally
>> required to is a serious matter. In any case it is extremely doubtful 
>> that
>> making any gifts would come within the remit of the POA. Your post 
>> clearly
>> implied that the requirement to register the POA could be ignored.
>>
>> Peter Crosland
>
> The OP has indeed stated that, in a posting dated 5 July. Your criticism 
> of
> what I said was dated 4 July. So, please justify it based on the 
> information
> available then, or perhaps simply accept that your criticism was actually
> not justified.

Your original posting clearly implied that the legal requirement to register 
of the POA could be ignored even though the person was not mentally capable. 
The fact that the person might have some periods of lucidity does not mean 
that the requirement to register can be delayed. Furthermore, until the POA, 
assuming it is an EPOA or LPOA, does not give the holder any power to act 
until it is registered. The exception is that it does allow payments for 
everyday living expenses and necessities but not large sums such as you 
suggest. So your suggestion was wrong regardless of thw mental capacity.

Peter Crosland

"Peter Crosland"  wrote in message 
news:he6dnQHHnLAO6e3VnZ2dnUVZ8q7inZ2d@posted.plusnet...
>>>>>>>> One plan of action is for the daughter to avoid registering the
>>>>>>>> Power
>>>>>>>> of
>>>>>>>> Attorney as long as her mother is reasonably lucid most of the 
>>>>>>>> time.
>>>>>>>> She
>>>>>>>> may
>>>>>>>> have dementia, but that does not necessarily mean that she is
>>>>>>>> incapable
>>>>>>>> of
>>>>>>>> making decisions. Dementia may just mean that she has a poor 
>>>>>>>> memory.
>>>>>>>> If
>>>>>>>> the
>>>>>>>> mother can, of her own free will, make presents, she should 
>>>>>>>> probably
>>>>>>>> be
>>>>>>>> encouraged to do so.
>>>>>>>
>>>>>>> Ignoring the law should seldom be taken lightly. In this case
>>>>>>> ignoring
>>>>>>> the
>>>>>>> law on registering the EPOA or LPOA is the by doing so the attorney
>>>>>>> could
>>>>>>> end up having to pay back any sums that they paid out  unlawfully.
>>>>>>
>>>>>> In what way is that ignoring the law?
>>>>>
>>>>> Because the law requires that the POA be registered with the Court of
>>>>> Protection once the person lacks mental capacity to act for 
>>>>> themselves.
>>>>> Furthermore the holder of the OA is legal obligated to act only in the
>>>>> best
>>>>> interests of the person concerned. Acting improperly is a serious
>>>>> breach
>>>>> of
>>>>> trust and in some cases can be criminal as well.
>>>>
>>>> That's all well known. In what way does it conflict with what I said?
>>>
>>>
>>> The OP has stated that the person concerned is never lucid therefore the
>>> POA
>>> should have already been registered. Not registering a POA when legally
>>> required to is a serious matter. In any case it is extremely doubtful
>>> that
>>> making any gifts would come within the remit of the POA. Your post
>>> clearly
>>> implied that the requirement to register the POA could be ignored.
>>>
>>> Peter Crosland
>>
>> The OP has indeed stated that, in a posting dated 5 July. Your criticism
>> of
>> what I said was dated 4 July. So, please justify it based on the
>> information
>> available then, or perhaps simply accept that your criticism was actually
>> not justified.
>
> Your original posting clearly implied that the legal requirement to 
> register
> of the POA could be ignored even though the person was not mentally 
> capable.

Umm, no, that's the crux of the argument, isn't it? I said that she could 
avoid registration 'as long as her mother is reasonably lucid most of the 
time'. Under the Mental Capacity Act 2005, every adult has the right to make 
his or her own decisions and must be assumed to have capacity to make them 
unless it is proved otherwise.

I have practical experience of caring for an elderly relative who was 
mentally extremely sharp and perfectly capable of making decisions most of 
the time. She did have a memory loss issue, though, and therefore was 
diagnosed as suffering from dementia. I think it would have been wrong to 
register the POA when she was still capable of making her own decisions. 
However, I stand to be corrected on that.

The relevant part of the Mental Capacity Act is as follows, by the way:-

2 People who lack capacity

(1) For the purposes of this Act, a person lacks capacity in relation to a 
matter if at the material time he is unable to make a decision for himself 
in relation to the matter because of an impairment of, or a disturbance in 
the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or 
temporary.

(3) A lack of capacity cannot be established merely by reference to-

(a) a person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead 
others to make unjustified assumptions about his capacity.

(4) In proceedings under this Act or any other enactment, any question 
whether a person lacks capacity within the meaning of this Act must be 
decided on the balance of probabilities.


3 Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for 
himself if he is unable-

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the 
decision, or

(d) to communicate his decision (whether by talking, using sign language or 
any other means).

(2) A person is not to be regarded as unable to understand the information 
relevant to a decision if he is able to understand an explanation of it 
given to him in a way that is appropriate to his circumstances (using simple 
language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a 
decision for a short period only does not prevent him from being regarded as 
able to make the decision.

(4) The information relevant to a decision includes information about the 
reasonably foreseeable consequences of-

(a) deciding one way or another, or

(b) failing to make the decision.


Section 3 (3) specifically covers the situation where someone is lucid but 
perhaps has impaired memory.

To sum this up, I think there are degrees of dementia, and not everybody 
with dementia is necessarily unable to make their own decisions. (In this 
case, it turns out that the mother is well past that stage, but I think it 
is useful to record this discussion, just in case somebody else refers to it 
later on.)


> The fact that the person might have some periods of lucidity does not mean
> that the requirement to register can be delayed.

Your reference for this?

BTW 'some periods of lucidity' is considerably different from what I said: 
'lucid most of the time'. However, I am interested in exploring what is or 
is not allowed by the law and it is helpful actually to consider a range of 
possible levels of incapacity.


> Furthermore, until the POA,
> assuming it is an EPOA or LPOA, does not give the holder any power to act
> until it is registered. The exception is that it does allow payments for
> everyday living expenses and necessities but not large sums such as you
> suggest. So your suggestion was wrong regardless of thw mental capacity.

Again, I think you may have misunderstood what I said. I said that mother 
could possibly make her own gifts. I certainly did not intend to say that 
could be done under a POA, and re-reading what I said (above), I don't think 
I did say that.

It's probably worth having a quick look here:

http://www.publicguardian.gov.uk/mca/assessing-capacity.htm

-- 
Peter Crosland
"GB"  wrote in message 
news:4870e157$0$2523$da0feed9@news.zen.co.uk...
>
> "Peter Crosland"  wrote in message
> news:he6dnQHHnLAO6e3VnZ2dnUVZ8q7inZ2d@posted.plusnet...
>>>>>>>>> One plan of action is for the daughter to avoid registering the
>>>>>>>>> Power
>>>>>>>>> of
>>>>>>>>> Attorney as long as her mother is reasonably lucid most of the
>>>>>>>>> time.
>>>>>>>>> She
>>>>>>>>> may
>>>>>>>>> have dementia, but that does not necessarily mean that she is
>>>>>>>>> incapable
>>>>>>>>> of
>>>>>>>>> making decisions. Dementia may just mean that she has a poor
>>>>>>>>> memory.
>>>>>>>>> If
>>>>>>>>> the
>>>>>>>>> mother can, of her own free will, make presents, she should
>>>>>>>>> probably
>>>>>>>>> be
>>>>>>>>> encouraged to do so.
>>>>>>>>
>>>>>>>> Ignoring the law should seldom be taken lightly. In this case
>>>>>>>> ignoring
>>>>>>>> the
>>>>>>>> law on registering the EPOA or LPOA is the by doing so the attorney
>>>>>>>> could
>>>>>>>> end up having to pay back any sums that they paid out  unlawfully.
>>>>>>>
>>>>>>> In what way is that ignoring the law?
>>>>>>
>>>>>> Because the law requires that the POA be registered with the Court of
>>>>>> Protection once the person lacks mental capacity to act for
>>>>>> themselves.
>>>>>> Furthermore the holder of the OA is legal obligated to act only in 
>>>>>> the
>>>>>> best
>>>>>> interests of the person concerned. Acting improperly is a serious
>>>>>> breach
>>>>>> of
>>>>>> trust and in some cases can be criminal as well.
>>>>>
>>>>> That's all well known. In what way does it conflict with what I said?
>>>>
>>>>
>>>> The OP has stated that the person concerned is never lucid therefore 
>>>> the
>>>> POA
>>>> should have already been registered. Not registering a POA when legally
>>>> required to is a serious matter. In any case it is extremely doubtful
>>>> that
>>>> making any gifts would come within the remit of the POA. Your post
>>>> clearly
>>>> implied that the requirement to register the POA could be ignored.
>>>>
>>>> Peter Crosland
>>>
>>> The OP has indeed stated that, in a posting dated 5 July. Your criticism
>>> of
>>> what I said was dated 4 July. So, please justify it based on the
>>> information
>>> available then, or perhaps simply accept that your criticism was 
>>> actually
>>> not justified.
>>
>> Your original posting clearly implied that the legal requirement to
>> register
>> of the POA could be ignored even though the person was not mentally
>> capable.
>
> Umm, no, that's the crux of the argument, isn't it? I said that she could
> avoid registration 'as long as her mother is reasonably lucid most of the
> time'. Under the Mental Capacity Act 2005, every adult has the right to 
> make
> his or her own decisions and must be assumed to have capacity to make them
> unless it is proved otherwise.
>
> I have practical experience of caring for an elderly relative who was
> mentally extremely sharp and perfectly capable of making decisions most of
> the time. She did have a memory loss issue, though, and therefore was
> diagnosed as suffering from dementia. I think it would have been wrong to
> register the POA when she was still capable of making her own decisions.
> However, I stand to be corrected on that.
>
> The relevant part of the Mental Capacity Act is as follows, by the way:-
>
> 2 People who lack capacity
>
> (1) For the purposes of this Act, a person lacks capacity in relation to a
> matter if at the material time he is unable to make a decision for himself
> in relation to the matter because of an impairment of, or a disturbance in
> the functioning of, the mind or brain.
> (2) It does not matter whether the impairment or disturbance is permanent 
> or
> temporary.
>
> (3) A lack of capacity cannot be established merely by reference to-
>
> (a) a person's age or appearance, or
>
> (b) a condition of his, or an aspect of his behaviour, which might lead
> others to make unjustified assumptions about his capacity.
>
> (4) In proceedings under this Act or any other enactment, any question
> whether a person lacks capacity within the meaning of this Act must be
> decided on the balance of probabilities.
>
>
> 3 Inability to make decisions
> (1) For the purposes of section 2, a person is unable to make a decision 
> for
> himself if he is unable-
>
> (a) to understand the information relevant to the decision,
>
> (b) to retain that information,
>
> (c) to use or weigh that information as part of the process of making the
> decision, or
>
> (d) to communicate his decision (whether by talking, using sign language 
> or
> any other means).
>
> (2) A person is not to be regarded as unable to understand the information
> relevant to a decision if he is able to understand an explanation of it
> given to him in a way that is appropriate to his circumstances (using 
> simple
> language, visual aids or any other means).
>
> (3) The fact that a person is able to retain the information relevant to a
> decision for a short period only does not prevent him from being regarded 
> as
> able to make the decision.
>
> (4) The information relevant to a decision includes information about the
> reasonably foreseeable consequences of-
>
> (a) deciding one way or another, or
>
> (b) failing to make the decision.
>
>
> Section 3 (3) specifically covers the situation where someone is lucid but
> perhaps has impaired memory.
>
> To sum this up, I think there are degrees of dementia, and not everybody
> with dementia is necessarily unable to make their own decisions. (In this
> case, it turns out that the mother is well past that stage, but I think it
> is useful to record this discussion, just in case somebody else refers to 
> it
> later on.)
>
>
>> The fact that the person might have some periods of lucidity does not 
>> mean
>> that the requirement to register can be delayed.
>
> Your reference for this?
>
> BTW 'some periods of lucidity' is considerably different from what I said:
> 'lucid most of the time'. However, I am interested in exploring what is or
> is not allowed by the law and it is helpful actually to consider a range 
> of
> possible levels of incapacity.
>
>
>> Furthermore, until the POA,
>> assuming it is an EPOA or LPOA, does not give the holder any power to act
>> until it is registered. The exception is that it does allow payments for
>> everyday living expenses and necessities but not large sums such as you
>> suggest. So your suggestion was wrong regardless of thw mental capacity.
>
> Again, I think you may have misunderstood what I said. I said that mother
> could possibly make her own gifts. I certainly did not intend to say that
> could be done under a POA, and re-reading what I said (above), I don't 
> think
> I did say that.

Notwithstanding all the above the fact remains that not registering a POA 
when required to do so is not a course of action that it is wise to take. 
Unfortunately the perception of the POA by many people is that the POA is 
carte blanche to do as they wish with the donor's property when in fact it 
is a position of strict trust. That was, and remains, the point I was making 
in respect of the question raised by the OP. I agree that the MCA does have 
implications for other cases but that is outside the context of the OP's 
question. What it does illustrate that anyone making a POA or agreeing to be 
a donee needs to think long and hard about the implications before doing so.

Peter Crosland