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  • FIRST POST
    • MrBo
    • By MrBo 6th Jul 17, 10:12 AM
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    MrBo
    power of attorney - Decisions
    • #1
    • 6th Jul 17, 10:12 AM
    power of attorney - Decisions 6th Jul 17 at 10:12 AM
    Hello all,

    I have a problem with a fellow PoA that would like to use are mothers money for something (Sorry I can not go into much detail). To do this he needs to ask for are mothers decision to do this. The problem is that she is being pushed into making this decision and she has said to me on four occasions that she does not want to do this but she just feels powerless to do anything else.

    I have tried talking to my fellow PoA but they are still going to do it.

    What can I do?
    Last edited by MrBo; 06-07-2017 at 11:17 AM.
Page 1
    • Keep pedalling
    • By Keep pedalling 6th Jul 17, 10:31 AM
    • 3,752 Posts
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    Keep pedalling
    • #2
    • 6th Jul 17, 10:31 AM
    • #2
    • 6th Jul 17, 10:31 AM
    For complaints about attornies you should contact the Office of the Public Guardian, who will then investigate your complaint.

    However, this does not seem to be a case of someone abusing their powers of attorney, but someone, I assume one of your siblings, pressuring your mother to gift them money which is somewhat more difficult to deal with.
    • MrBo
    • By MrBo 6th Jul 17, 10:47 AM
    • 7 Posts
    • 1 Thanks
    MrBo
    • #3
    • 6th Jul 17, 10:47 AM
    • #3
    • 6th Jul 17, 10:47 AM
    For complaints about attornies you should contact the Office of the Public Guardian, who will then investigate your complaint.

    However, this does not seem to be a case of someone abusing their powers of attorney, but someone, I assume one of your siblings, pressuring your mother to gift them money which is somewhat more difficult to deal with.
    Originally posted by Keep pedalling
    That is the case exactly. I have already spoken with the Office of the Public Guardian with a different problem about the same sibling because they were trying to make money for helping her. You can not do this because you can not be seen to be making a profit. I feel like they have found a loophole of sorts.
    • Frogletina
    • By Frogletina 6th Jul 17, 11:03 AM
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    Frogletina
    • #4
    • 6th Jul 17, 11:03 AM
    • #4
    • 6th Jul 17, 11:03 AM
    I'm not sure what you mean by PoL? Can you explain?

    If the Power of Attorney is in force this means that the attorneys can make decisions as if they are the Donor - however if the donor is capable should still be involved in the decision.

    If you are joint and severally holding the Power of Attorney then either of you can make decisions, but they should be in the best interest of the Donor. In this case your mother does not agree and neither do you.

    A person who acts as an attorney should not profit from holding this position. Gifts should be nominal and of the size given prior to the PoA being in place.

    I've only just started as an attorney and I find most of the information I can find is on how to set one up and very little advice on how to proceed once it is in force.

    frogletina
    Not Rachmaninov
    But Nyman
    The heart asks for pleasure first

    SPC 8 #441 £1567.31 SPC 9 #441 £1014.64
    • Malthusian
    • By Malthusian 6th Jul 17, 11:27 AM
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    Malthusian
    • #5
    • 6th Jul 17, 11:27 AM
    • #5
    • 6th Jul 17, 11:27 AM
    The fact that someone who still has capacity can do what they want with their own money is hardly a loophole. It is just life.

    If she is being blackmailed then call the police, if the pressure being put on her is merely emotional, then she needs to stop telling you she doesn't want to do it and tell the other attorney.

    Why has she not already removed the other attorney, since she still has capacity and knows they are trying to extract money from her against her will? See here - she does not need to make an entirely new power of attorney, she only needs to send the Office of the Public Guardian a "partial deed of revocation". You would remain attorney. (But she should consider appointing another whom she trusts in case you become unable to act - this would require an entirely new LPA, at least in England and Wales.)

    She needs to do it now while she is still able, because once she loses capacity it will fall to you to fight the other attorney in front of the OPG and it could create an almighty mess.
    • MrBo
    • By MrBo 6th Jul 17, 11:52 AM
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    MrBo
    • #6
    • 6th Jul 17, 11:52 AM
    • #6
    • 6th Jul 17, 11:52 AM
    The problem is that she feels like she's in a weak position/powerless and with her alzheimer she as bad short term memory.

    @Frogletina
    sorry I meant to say PoA.
    • Frogletina
    • By Frogletina 6th Jul 17, 11:53 AM
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    Frogletina
    • #7
    • 6th Jul 17, 11:53 AM
    • #7
    • 6th Jul 17, 11:53 AM
    That is the case exactly. I have already spoken with the Office of the Public Guardian with a different problem about the same sibling because they were trying to make money for helping her. You can not do this because you can not be seen to be making a profit. I feel like they have found a loophole of sorts.
    Originally posted by MrBo
    Cross posted.

    I would be interested to know what the sibling was claiming for. Was the 'helping' that she claimed for outside of what a normal family member would do? What did the OPG advise?

    I imagine that the loophole would be that your mother makes the decision and that your sibling would claim that it was freely done by her, but with undue pressure being put on her it would seem to be a case for contacting the OPG again.

    I'm new to all this, so I may be completely on the wrong track.

    frogletina
    Not Rachmaninov
    But Nyman
    The heart asks for pleasure first

    SPC 8 #441 £1567.31 SPC 9 #441 £1014.64
    • Frogletina
    • By Frogletina 6th Jul 17, 11:54 AM
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    Frogletina
    • #8
    • 6th Jul 17, 11:54 AM
    • #8
    • 6th Jul 17, 11:54 AM
    The problem is that she feels like she's in a weak position/powerless and with her alzheimer she as bad short term memory.

    @Frogletina
    sorry I meant to say PoA.
    Originally posted by MrBo
    I understand completely. My donor likewise has alzheimers also.

    frogletina
    Not Rachmaninov
    But Nyman
    The heart asks for pleasure first

    SPC 8 #441 £1567.31 SPC 9 #441 £1014.64
    • Mojisola
    • By Mojisola 6th Jul 17, 11:58 AM
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    Mojisola
    • #9
    • 6th Jul 17, 11:58 AM
    • #9
    • 6th Jul 17, 11:58 AM
    The problem is that she is being pushed into making this decision and she has said to me on four occasions that she does not want to do this but she just feels powerless to do anything else.
    Originally posted by MrBo
    Could you record your mother saying this?

    Or make an appointment with a solicitor so that she can say it in front of him/her? You can then tell the other attorney that you have the evidence and will take it further if the pressure doesn't stop.

    If your mother is capable, she should remove the attorney who is putting pressure on her.
    • MrBo
    • By MrBo 6th Jul 17, 12:04 PM
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    • 1 Thanks
    MrBo
    Cross posted.

    I would be interested to know what the sibling was claiming for. Was the 'helping' that she claimed for outside of what a normal family member would do? What did the OPG advise?

    I imagine that the loophole would be that your mother makes the decision and that your sibling would claim that it was freely done by her, but with undue pressure being put on her it would seem to be a case for contacting the OPG again.

    I'm new to all this, so I may be completely on the wrong track.

    frogletina
    Originally posted by Frogletina
    no its for normal house work e.g. tidying, gardening and odd jobs. Some of these jobs she doesn't even want to doing.
    • MrBo
    • By MrBo 6th Jul 17, 12:08 PM
    • 7 Posts
    • 1 Thanks
    MrBo
    Could you record your mother saying this?

    Or make an appointment with a solicitor so that she can say it in front of him/her? You can then tell the other attorney that you have the evidence and will take it further if the pressure doesn't stop.

    If your mother is capable, she should remove the attorney who is putting pressure on her.
    Originally posted by Mojisola
    I will have to look into that one. Thanks
    Last edited by MrBo; 06-07-2017 at 12:15 PM.
    • Malthusian
    • By Malthusian 6th Jul 17, 12:49 PM
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    Malthusian
    As you may know mental capacity is not a one-way street - someone with Alzheimer's can have capacity in some moments and not have it in others.

    If at times she is capable of understanding why she doesn't want to give the other attorney money, remember why she doesn't want to give them money, weigh up the decision, and then tell you that she doesn't want to give them money, then at those times she still has mental capacity; in the same way she has the capacity to remove them as attorney. (It would be a very good idea to get a solicitor to see her to arrange this.)

    If she has lost capacity then the other attorney cannot get her to give them the money herself, and they can't use their power of attorney to make gifts to themselves or act in a way that is not in the donor's interests. So they are stuck, and they should butt out before they get themselves into any more legal hot water.

    If she still has capacity at times and chooses, despite extreme reluctance, to give them money then that is an altogether different problem. How likely is it that she would actually remain lucid long enough to go through the practicalities? Does she keep large amounts of cash on her, does she know where her chequebook is, is she likely to ring her bank and instruct them to make a transfer?
    • MrBo
    • By MrBo 6th Jul 17, 1:26 PM
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    • 1 Thanks
    MrBo
    As you may know mental capacity is not a one-way street - someone with Alzheimer's can have capacity in some moments and not have it in others.

    If at times she is capable of understanding why she doesn't want to give the other attorney money, remember why she doesn't want to give them money, weigh up the decision, and then tell you that she doesn't want to give them money, then at those times she still has mental capacity; in the same way she has the capacity to remove them as attorney. (It would be a very good idea to get a solicitor to see her to arrange this.)

    If she has lost capacity then the other attorney cannot get her to give them the money herself, and they can't use their power of attorney to make gifts to themselves or act in a way that is not in the donor's interests. So they are stuck, and they should butt out before they get themselves into any more legal hot water.

    If she still has capacity at times and chooses, despite extreme reluctance, to give them money then that is an altogether different problem. How likely is it that she would actually remain lucid long enough to go through the practicalities? Does she keep large amounts of cash on her, does she know where her chequebook is, is she likely to ring her bank and instruct them to make a transfer?
    Originally posted by Malthusian
    She has her good days and bad days but her short term memory is always bad. You need to explain things to her multiple time and in different ways before she can understand it correctly.

    Now he has asked her to pay this money and she said yes without explain and checking if she understands. He has access to her accounts and money, so he can just pay himself.
    • Malthusian
    • By Malthusian 6th Jul 17, 2:32 PM
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    Malthusian
    How does he have access? He is not allowed to use the power of attorney to pay himself, and if he does so anyway you need to contact the Office of the Public Guardian so that he can be removed as attorney.

    If he has online banking passwords or some other way of operating her bank account while masquerading as her, ring the bank and tell them to remove online access immediately, and that they should only accept instructions in writing.

    Legally he won't have a leg to stand on if his justification for taking the money is "my mum who has Alzheimer's and flits in and out of mental capacity said I could, but I have no written record of this".
    • MrBo
    • By MrBo 6th Jul 17, 3:05 PM
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    MrBo
    He has access to online banking and access to her cards. This was setup to control finances, pay for help and for food etc. This has only been happening because he has been rushing thing and communicating with me.

    At the moment in time, I know he has not taken anything out of himself. This is only because I have been trying to block this as much as I can do.
    Last edited by MrBo; 06-07-2017 at 3:09 PM.
    • Malthusian
    • By Malthusian 6th Jul 17, 5:06 PM
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    Malthusian
    Reading between the lines, I can only assume you haven't told the bank to withdraw the online banking access and debit card because his help is needed to manage her finances and provide for her needs, and you can't or don't want to do it yourself.

    If you want to stop him doing as he pleases you will either have to get more actively involved, or accept that you will have to scrutinise her bank statements and outgoings and if he does take any money illegally, take action after the fact.

    Just to reiterate, he cannot take out money for himself. Either he will have to persuade her into physically giving him the money, at a point when she has capacity. Or he will have to masquerade as her using her online banking password or other means, which is fraud. (Did the bank set him up with online access, or has she given him her own login? The latter is almost certainly against the bank's T&Cs and they will shut it down if they find out.) Or he uses the power of attorney to give the money to himself, which is a violation of his duties and will result in the OPG removing him (especially as it is a second offence).
    • Frogletina
    • By Frogletina 6th Jul 17, 6:08 PM
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    Frogletina
    Reading between the lines, I can only assume you haven't told the bank to withdraw the online banking access and debit card because his help is needed to manage her finances and provide for her needs, and you can't or don't want to do it yourself.

    If you want to stop him doing as he pleases you will either have to get more actively involved, or accept that you will have to scrutinise her bank statements and outgoings and if he does take any money illegally, take action after the fact.

    Just to reiterate, he cannot take out money for himself. Either he will have to persuade her into physically giving him the money, at a point when she has capacity. Or he will have to masquerade as her using her online banking password or other means, which is fraud. (Did the bank set him up with online access, or has she given him her own login? The latter is almost certainly against the bank's T&Cs and they will shut it down if they find out.) Or he uses the power of attorney to give the money to himself, which is a violation of his duties and will result in the OPG removing him (especially as it is a second offence).
    Originally posted by Malthusian
    I am confused that you are saying he should not have access to the donor's money. Surely the main reason for having a finance Power of Attorney is to pay for necessary expenses because the donor cannot deal themselves.

    As an attorney I have access to the donor's money and have to take money out to pay for food and needed household items, pay for transport costs/car parking etc. I also give him money to spend as he needs it, as at the moment he is not able to go to the bank and withdraw the money himself, but can at times make it to the corner shop. There have been vets fees and a cattery bill to pay for when one of his cats had an accident, and he was in hospital.

    It would be impossible for me to deal without access to his money and there are occasions where there are legitimate expenses that I have as PoA which are allowable. I keep accurate records which are more detailed than necessary according to the guidelines. If I don't take out the money for my own legitimate expenses then I would never get paid for them. I have to say that the total I have incurred to date are less than £20.

    frogletina
    Not Rachmaninov
    But Nyman
    The heart asks for pleasure first

    SPC 8 #441 £1567.31 SPC 9 #441 £1014.64
    • Primrose
    • By Primrose 6th Jul 17, 8:47 PM
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    Primrose
    Too late now if the individual has dementia, to make a new P of A but to avoid this I have stated in my Financial Affairs document specifically that my attorneys may not make any gifts. Best to think about possible situations that might occur in the future while you still have mental capacity then it leaves no room for doubt.
    • Malthusian
    • By Malthusian 7th Jul 17, 9:29 AM
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    Malthusian
    I am confused that you are saying he should not have access to the donor's money. Surely the main reason for having a finance Power of Attorney is to pay for necessary expenses because the donor cannot deal themselves.
    by Frogletina
    You have overlooked that the OP is also attorney and would still be able to do that. The other one has repeatedly tried to misappropriate the donor's money so if the OP can arrange the necessary expenses, no the other one shouldn't have access. Certainly not via online banking or any other form which does not leave a paper trail.

    If the OP can't arrange the necessary expenses and the other attorney is the only one that can, then we have a thorny situation; somehow he has to be monitored and handheld into carrying out his legal duties, without persisting in his attempts to misappropriate money.

    Too late now if the individual has dementia, to make a new P of A
    Originally posted by Primrose
    Not necessarily as covered previously; there are degrees of dementia and someone with a dementia diagnosis may have capacity at some times and not others. Although the OP has said the donor at times displays awareness of what is going on, it's impossible to say over the Internet whether that amounts to capacity to make a new PoA. Obviously if the donor wants to make a new power of attorney in their lucid periods, a solicitor will need to be on hand to make sure the new one is absolutely watertight.

    but to avoid this I have stated in my Financial Affairs document specifically that my attorneys may not make any gifts.
    Not necessary to stop attorneys enriching themselves as that is already expressly forbidden without the need for such a clause. It only stops them, e.g, making gifts to your children/nieces/nephews on your behalf on birthdays/Christmas/weddings in the way you liked to do before you lost capacity, and may result in a greater share of your estate going to the taxman. Of course if you don't anticipate wanting to make any gifts to relatives this isn't a problem.
    • Sea Shell
    • By Sea Shell 7th Jul 17, 2:41 PM
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    Sea Shell
    Question? If a donor has usually given a future attorney a thankyou gift in the past for help with oddjobs etc. either cash or say a meal out, would this have to stop under a registered PoA?
    " That pound I saved yesterday, is a pound I don't have to earn tomorrow "
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