Power of Attorney

Soontobemum_2

My DH has today been asked by his parents if he minds if they give his (DH's) sister power of attorney should they become mentally incompetent. DH said yes, although he didn't really know what he was being asked.

DH and his sister do not talk and have not really had a relationship in the past 10 years or so. Does this mean that if she gained power of attorney she will be able to do as she sees fit with their financial affairs? What are the implications. if any, for DH? He doesn't know if he's said the wrong thing or nott, or if indeed they would listen anyway.

This is obviously potentially a long way off, but he has agreed to something on the spur of the minute without really knowing what it means (apparently they are meeting with the solicitor tomorrow to draw this up).

Mojisola

Soontobemum wrote: »

My DH has today been asked by his parents if he minds if they give his (DH's) sister power of attorney for their financial affairs should they become mentally incompetent. DH said yes, although he didn't really know what he was being asked.

DH and his sister do not talk and have not really had a relationship in the past 10 years or so. Does this mean that if she gained power of attorney she will be able to do as she sees fit with their financial affairs? What are the implications. if any, for DH? He doesn't know if he's said the wrong thing or nott, or if indeed they would listen anyway.

This is obviously potentially a long way off, but he has agreed to something on the spur of the minute without really knowing what it means (apparently they are meeting with the solicitor tomorrow to draw this up).

She should be doing what is best for their parents - but, basically, yes.

Ideally, both siblings would be joint attorneys but as they don't have a relationship, you can see why the parents would choose just to have one.

Your DH really needs to read up on the powers and speak again with his parents if he's not happy.

emmielou

I would say that it would be better for his parents to appoint both DH and his sister jointly and severely. That way one can act without the other so no need to agree every little expenditure and if something should happen that meant one of them couldn't act as an attorney they have 'back up'.

Appointing just one person is not a good idea as unfortunately anything could happen in the future such as that one person moving abroad or worse.

Then they would need to apply to the Court of Protection which negates any benefit of making a Lasting Power of Attorney in the first place!

The Office of the Public Guardian website may be a good place to get an idea of what an LPA means as well as other threads on this forum!

LooniesMum

I've had some recent experience of this. I have several siblings but I was nearest geographically to my father when he began to struggle to cope with his financial affairs. He wanted just me to be his attorney, but I felt I'd rather have someone else 'in the know' so that the family couldn't accuse me of doing anything to their (or my father's) disadvantage at a later date. My father agreed to one other sibling having POA with me, and we were able to act jointly and severally. We put a cap on decisions/transactions involving larger sums of money, meaning that big sums needed both signatures. However, when we came to need to register the POA sometime later (my poor father had dementia by then....), the Court of Protection rejected the clause regarding the larger sums of money and we had to take it out!! That meant redoing a shed load of paperwork.

Two other take home points: when the day comes and you have to register the POA with the Court of Protection (in order to take control of the donor's affairs), the solicitor will write to all siblings and ask if they object - so you could at that point object (though you probably need a reasonable reason to object......). Secondly, we had a clause in the POA (EPA these days), that said our parents' home couldn't be sold without consent of all their children ("unless such consent should be unreasonably withheld" - i.e. you can't just say no without a good reason!). So your husband could ask his parents to put that in. Also, could he ask for the name of the solicitor, and write to them himself saying that this is his wish?

Not a legal expert myself, but hoping to be helpful...... :think:

jollyme

Hope that I'm not hijacking this thread. I have a question regarding Power of attorney. Where is the paperwork held after paperwork is signed? Is it with the solicitor? A relative of mine might have done this some years ago - but can't remember. His daughter thinks he did - but has no paperwork herself.

LooniesMum

When we did it, the donor (person giving the power) had a copy, the attorneys (or attorneys-to-be) had copies and the solicitor held a copy. If you have an old style power of attorney for someone, you should get legal advice on updating it to the newer enduring power or lasting power of attorney. The older style power of attorney only covers financial issues and does not allow the attorney to make health and welfare decisions on behalf of the person who has lost their capacity. The lasting power of attorney does cover health and welfare - which if you're acting for a loved one is just as important as what happens to their pennies! As I understand it the LPA would maybe give you power to decide things like 'do not resuscitate' or give consent for an operation if the person is no longer able to give informed consent.

I'm not a solicitor but we've waded our way through a load of this stuff recently. I recommend relatives being as open as possible and for the donors to make as many of their wishes known as possible before they get too addled to say so!!

You need to register the power of attorney with the Court of Protection in order to act on behalf of the donor without any consent from the donor (taking their powers away). Before it's registered you can help manage their financial affairs by acting on their behalf e.g. you can have the power of attorney/EPA/LPA 'registered' on the donor's bank account so that you can then pay bills for them (for example) when they are ill or finding it difficult to do for themselves.

Once the donor has lost capacity the power of attorney must be registered with the Court of Protection and the tricky thing can be knowing exactly when to do that. If they have some big event (e.g. car accident) from which they never recover their marbles, then it's obvious. However, mental decline can happen very slowly. We eventually decided it was time to register but it took months - by the time we got some paperwork from the Court, it was barn-door obvious we needed it registering! It was so slow that my father actually died before it was ever registered !!! You need to start the ball rolling when the person "IS BECOMING" incompetent, not wait until there's absolutely no doubt. If you've got it wrong they can object when they are served their copy of the Notice to Register - if they aren't able to object, then it's time to register!!!

If it's of use to anyone out there, I've recently put together a list of useful information you need from the relative who is donating the power to you e.g. their bank account numbers, where there savings are (you don't need to know how much they've got!), their national insurance number, where they hide important documents in the house etc etc. I'll post it if folk want it!

As I say, not an expert - this is just from recent experience!

jollyme

Thanks, Looniesmum. That's a very helpful post.

RAS

STBM are you in England or Scotland as the rules are very different.

Soontobemum_2

Am in England.

DH has spoke to his father who it turns out does not really know what power of attorney means, he certainly didn't seem to know that it covered financial affairs and thought it was about making decisions about care homes and so on. It seems strange to us though to be giving power of attorney to someone without knowing what it really is!!

RAS

There are two sort of POA and he needs to see this http://www.publicguardian.gov.uk/

Errata

Soontobemum wrote: »

Am in England.

DH has spoke to his father who it turns out does not really know what power of attorney means, he certainly didn't seem to know that it covered financial affairs and thought it was about making decisions about care homes and so on. It seems strange to us though to be giving power of attorney to someone without knowing what it really is!!

Dad also needs to understand that the health and welfare power can result in him being moved into a care home against his wishes, even though that's where he needs to be.