Emmersons Solicitors - Newcastle and Sunderland
The bank insists I have a Lasting Power of Attorney
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The bank insists I have a Lasting Power of Attorney



Emmersons Solicitors Elderly client Department is often asked to give advice in relation to the management of money by or on behalf of clients.

Some banks insist that a Lasting Power of Attorney should be in place before relatives can access money. Many people give their bank card to their relative so that they can take money out of the account on their behalf. However, I have come across some cases recently where the bank have blocked the card and written to their customer asking them to contact the bank for a new card. The customer has not done so and I have been consulted by relatives who can no longer access their money.

There are various issues arising here. If the bank is not contacted by their account holder in these circumstances is it because they no longer have the mental capacity to deal with their affairs?

Is the bank trying to protect its customer from potential financial abuse?

How are the family going to assist their elderly relative?

As long as you still have mental capacity you can arrange your affairs in such a way that suits you. Many people allow their pension to be collected by their relatives. Others set up a bank account in the joint names of themselves and a relative. Thus both can deal with financial affairs. Others allow use of their bank cards as above.

The trouble arises if you lose mental capacity. In the scenarios above it may become impossible to access money if you can’t give instructions for this to continue. I had to advise both clients above that, as their relatives had lost mental capacity, and as they had not made a Lasting Power of Attorney, they would have to apply to the Court of Protection to be appointed as a deputy. This would take about five to six months to achieve.

State Benefits

There are many people who are not claiming all of the benefits to which they are entitled. Are you? However, there are some who are claiming when they are not entitled. If you are your relative are receiving a means tested benefit then you are not entitled to that benefit when your savings are over a certain limit.

In two of our probate cases recently money was refunded to the Department of Work and Pensions by a deceased’s estate. In one case the person who had received the benefit had not spent it. Eventually their savings were over the threshold and all of the money received by them after that point had to be refunded. This amounted to £17,000. In another case a long forgotten policy was found and encashed during the probate process. As this policy was worth over £15,000 the deceased should have declared it at the time of claiming benefits.

If you or a relative need care don’t forget to look to the NHS for funding. There is a lower rate of payment for those who require basic nursing assistance. This can be accessed even if you remain in your own home. There is the higher rate which applies when very strict criteria are met. There is now a standard assessment form that all health authorities must use. You are entitled to an assessment. This becomes relevant when it is suggested that you need to move into residential care. You are also permitted to see the assessment, which should be carried out in a timely fashion. Not months later as is often the case.

Jacqueline Emmerson
Collaborative Family Lawyer
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