Hi. I hold LPAs for Mum, for Finance and Property and Health and Welfare. Out of the blue, we received an email from the OPG saying they were investigating due to an allegation that she did not have the mental capacity to execute her H&W Lasting Powers of Attorneys. At the time of signing she had been diagnosed with Dementia but she was still able to make decisions. Four months after the LPA was signed, we were told by email that capacity had been lost. So we’d done this in good faith. We think we know who challenged this, and it is concerning. We and the certifier are worried about the consequences for us as well as Mum, Considering Mum is now in care, and NHS stepped in for a recent medical event, the challenge seems pointless. Has anyone else had this happen? I’ve read plenty about the F&P LPA but not so much H&W. What is the likely outcome? Should we worry?
If they just 'filled in a form', they are going to need to provide more information before it is likely to be taken seriously. You might be asked to provide a little information, that's all, and in that you should also name the person and the reasons they might be doing this.
Perhaps you could put a brief pleasant written letter in their letter box (not just on line), asking to discuss their concerns - if you think it might help to resolve this quickly. One letter is most unlikely to provide a reason for a restraining order to be made. Keep a copy ready to hand in to the allegation ‘inquiry’ – if it ever happens, which I doubt. Or alternatively, perhaps best just to ignore the whole thing for now, and sit tight.
Come back if this goes anywhere - which I doubt. If it does, you should remember to threaten a defamation action yourself. I don't like escalating problems unnecessarily, but sometimes a counter-threat can be very helpful.
We do have some members from the UK. The one though who could maybe help, Country Mouse, has not posted in months. I think you will need to find a Solicitor to answer your questions.
You are quite right, most challenges are about money, so Finance and Property rather than Health and Welfare. If you ‘think you know’ who made the allegation, is it worth going to see them and trying to sort out their problems? What are they trying to achieve? If they make it clear that the point of the allegation is to annoy you (quite possible), rather than concerns about M, report the conversation back to whoever is investigating this.
I wouldn't spend money on lawyers until this gets a bit firmer, and in fact there is nothing to take to a solicitor now. They can only say 'Oh Really?'. (I'm qualified as a solicitor in the UK, though 50 years past practising there)
People often worry too much about stir complaints that in fact will never go anywhere. Good joke, huh? Don’t fall for that trick!
Lawyer/attorney (US) = Solicitor (UK)
Power of Attorney (POA) (US) = Lasting Power of Attorney (LPA) (UK)
Attorney-in-fact/representative (US) = Attorney (UK)
Witness and/or Notary (US) = "Certifier" (UK)
Tribble, you need to see a solicitor to make sure you've got things completed properly.
You say the "certifier" is worried. Clearly you are not in the USA where we used such designations as APS, POA, Attorney, and etc. Is a "certifier" much like our notaries? Because if you had a minimally competent person create a POA with you and simply had her signature notarized, then that is likely to be adjudged NOT good enough. If certifier is like our notary they ONLY attest to a signature, not to the LEGAL MENTAL ABILITY of the signee to UNDERSTAND fully what she is signing. The Cerfifier, if that's all she is doing (attesting to a signature) has no problem, but if he/she is certifying someone completely competent to sign, she/he may be having cause to worry now, as well.In the case of someone minimally competent you need MORE: I went through it so I know. Explanation:
My brother was diagnosed with probable early Lewy's dementia by symtoms after he had a car accident. He and I (as a nurse) were aware where this diagnosis would take him and he asked me to be his POA and the Trustee of his Trust. We went to an attorney where he was CAREFULLY and COMPLETELY examined as to competency to make these changes. His attorney with me present and with me asked to leave the room examined him thoroughly telling him that his finances would be in MY HANDS ALONE. This examination and results of it were carefully documented in the POA paper itself.
You cannot know how your own situation will be judged. You can only do the best you can to provide EVIDENCE that at the time your mom signed these papers putting you in complete charge of everything she understood COMPLETELY what she was doing. If you can prove that with witnesses you are in the clear. If not, you may have guardianship taken from you in the case of a family dispute before the courts.
Wishing you good luck.