How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ash Your Own Question
Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
75100385
Type Your Law Question Here...
Ash is online now

Reality check please. As Acting Power of Attorney for the

Customer Question

Reality check please. As Acting Power of Attorney for the claimant who is fully knowledgeable and in agreement with the claim raised and the fact that payment for the action will be coming from her own funds. The defendant has stated that he believes that if I as POA am bringing the claim on behalf of the claimant that I would “need to obtain a court order or at least the permission of my brother and other beneficiaries”. I guess he is referring to the fact that the funding of the case is coming from the claimant directly and not the POA. It is just me who is the nominated POA no one else. Is the defendant right?
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
Hi.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Does the claimant have full mental capacity?

Why do you have Power of Attorney?

Where is the claimant not bringing the action themselves?

What is the background to the claim please?

Jo
Customer: replied 3 years ago.

Does the claimant have full mental capacity? YES in so much as she has not been assessed otherwise.

 

Why do you have Power of Attorney? My 98 year old Grandmother’s medical prognosis (post 2 quick succession bleeds on the brain) was one of no recovery and imminent death. Amazingly she started to recover but with limited capacity physical and mental. She has over 8 months made a remarkable comeback, can now shuffle around and her speech is really very good considering. She now needs full time care and as such her new home is a care home.

 

During this period using the POA I have acted on her behalf and with her knowledge to sort all things financial out as well as her welfare needs. Although my Grandmother has not been assessed as lacking in ‘capacity’ she is unable to do the things that I am doing on her behalf to sort out her affairs.

 

Where is the claimant not bringing the action themselves? The claim has been instigated with the full knowledge of Grandma and it is her name on the forms as bringing the action. She is the claimant. She understands what I am doing and wants me to get answers on her behalf. She is just not capable of completing the necessary communication regarding the claim.

 

What is the background to the claim please? Very briefly ….. As a result of advice given by the defendant the claimant entrusted £13,500 to the defendant. This was based on the premise that the defendant would then set-up a charity which would provide for her chosen charities (£13,500) upon her death and during her life provide a “double” the monthly amount of income that was received from the claimants investments that she surrendered in order to acquire the £13,500. This was pre hospitalisation and the claimant was then looking after all her own affairs. Upon hospitalisation I became involved and noticed that there was zero communication in the defendant’s possession regarding the defendant or the advice that had been given (he was a ghost). Importantly there was and still is no documentation regarding the agreement regarding the £13,500 and the ‘charity’. The promised increase in monthly returns occurred for 5 months from May 13 to Sept 13 and then ceased with no explanation. The claimant does not know how her money is being used, how/if her legacy is safeguarded or why the promised monthly payments have stopped. I have been in extensive (one way communication) with the defendant with no answers and hence the submission of the claim.

Expert:  Jo C. replied 3 years ago.
Misselling of investments isn't really my area so I will opt out for others for you.
Customer: replied 3 years ago.

The scenario is that the 'victim' has not been assessed as lacking 'capacity' but she is unable to complete the court forms and 'push' things forward as she is 98 years of age and of fragile disposition and so what authority does her POA need to provide support?



The victim has asked me to progress matters in order to find out what has happened to the money that she entrusted to an individual and why he has not kept his promise.


 


Given recent medical issues detail earlier I have been using the POA to deal with the Victims financial affairs and as the £13,500 is part of this I have continued by filing a claim. The claimant being the 'Victim' not me. As POA for the claimant I continue to undertake the completion of the necessary court forms and endeavouring to engage through ADR with the defendant on behalf of the claimant.



Can someone please advise if what I am doing is an acceptable course?


Thank you

Expert:  Ash replied 3 years ago.
Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.

If a party to proceedings does not have capacity or ability to conduct them then you can make an application to the court to become a litigation friend.

Can I clarify anything?

Customer: replied 3 years ago.

Thank you. I presume that what I have been doing so far as an acting POA is correct procedure?


 


Building on this what route do I take to have the claimants capacity and/or ability assessed? Is it to engage a medical professional?


 


 

Expert:  Ash replied 3 years ago.
Well if there is not capacity you need to get a report saying so. Then an application can be made to the court to appoint a litigation friend,

Alex

Customer: replied 3 years ago.

As it stands the claimant will be expected to give evidence. She will at that time be 99 years of age, she is fairly frail, but pretty excellent condition for a 99 year old. I don’t want her to be overly stressed and think that if she is considered to lack capacity that I am best placed to represent her.


Obviously I don’t know what the capacity measures are, she makes her own decisions on what to do, what to wear, what to eat, talks a lot and can think, occasionally gets a little confused. So I don’t think it will be a capacity issue so much as an ability issue – if I understand the difference. She has some dexterity / coordination issues, cannot fill in the forms or liaise effectively with the defendant (ADR). She will not really be able to effectively put her case forward in a structured manner and cite all the reasons and facts supporting the claims made against the defendant. This is where really I could do with being her litigation friend as I think that I can do this. Also on the day of the trial, finger crossed all will be well and she can attend but if she is medically unfit to attend at 99 (next week) there are good days and bad days then having me as a litigation friend would presumably be better.


If it is determined that she lacks capacity then how does this affect the perception of the ‘quality / standing’ of her witness statement? She is quite clear on what the defendant said and promised.


Obviously not pre-judging anything but is there a situation where through a medical assessment she could be considered to have capacity (therefore credible witness statement) but lack ‘ability’ therefore possibly allowing me to be a litigation friend?

Expert:  Ash replied 3 years ago.
In that case you can assist her as a Mckenzie friend but she needs to represent herself. The court will or course be sympathetic.

But unless there is a condition she will have to represent herself.

Alex

Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
Ash and other Law Specialists are ready to help you
Customer: replied 3 years ago.

thank you

Expert:  Ash replied 3 years ago.
All the best.