Power of Attorney

Enid0511

How much power does a POA have if the agreement was made prior to 2005 and has been signed by a solicitor ?

Do they have the power to sell the property against the persons wishes and also more than likely not in their best interests ?

I know that the person it concerns can ask to have their affairs back at any time with this POA, but they do not know this.

rogerblack

Depending on the POA - the entire point is that you can do things against the persons wishes - or without express consent.
Powers of attorney do vary, and there are different sorts.

If the person is capable of consenting, and the person knows they are acting against their wishes and against the best interests of the person they are the attorney for - they may be committing a criminal offence.

kurgon

Any decision can be appealed through the court of protection

cattermole

Using one's power as an attorney against someone's best interests could also be a criminal offence as Roger says and could be considered abuse.

If you have any concerns in this regard follow the advice below.

https://www.gov.uk/report-concern-about-attorney-deputy

Enid0511

Thank you for your responses.

I can give a bit more info in the hope that someone will be able to assist.

Family member(1) has MH problems, POA was gained by another family member after (1) has been sectioned for a year and discharged as (1) had lots of people chasing for money.

To our knowledge the POA never went to court but we have been told that it was signed by a solicitor.

The person who has POA lives the other end of the country so we have no further information on the POA, but do know that (1) can take back his affairs at any time.

POA has managed affairs until now, but, we have major concerns.

We know that POA lent money to another family member and do not know if this has ever been paid back, (1) was not aware that this had happened. POA has not submitted a tax return at any time for (1) who has had an income from a property during this time.

Property has now become empty, POA wants to sell property by auction. (1) has said that they do not want this to happen. We have told POA that this is not in their best interests and would be better served being rented out again so that (1) has an income.

POA have instructed an estate agent to sell by auction.

We have questioned their ability to sell, POA has told us that they do, we have no sight of any paperwork so cannot confirm or deny this.

We get the feeling that POA wants shot of the responsibility and this is all in their best interests rather than (1) best interests.

Help

Mojisola

Looks like 1 should be rescinding the POA -
https://www.gov.uk/power-of-attorney/cancel-or-end-a-lasting-power-of-attorney

cattermole

The Lasting Power of Attorney has to be registered with the Office of the Public Guardian. A solicitor signing it is not enough.

https://www.gov.uk/power-of-attorney/register-a-lasting-power-of-attorney

Assuming 1 had capacity when they made this LPA and it was with their solicitor, who is on the list for people to be told about this? Are you? See link above.

Now if the Attorney is already dealing with their financial affairs we must to some extent assume they have the right paperwork as banks etc. are very strict on this.

Is 1 capable of rescinding the POA?

if the Attorney has lent money from 1's to someone else this is mis-use and probably theft of 1's money.

I really think you and/or 1 should contact the Office of the Public Guardian and get further advice report your concerns in addition to 1 rescinding the LPA if they are able to do so.

https://www.gov.uk/report-concern-about-attorney-deputy

The other thing I find odd it is very unusual to appoint only one attorney for all sorts of reasons and I find it very strange that the solicitor who gave the advice in the first place did not advise at least two should be on the LPA. Having two is obviously a much bigger safeguard.

Enid0511

If there was a solicitor it was only the person who has the POA who had any dealings. 1 would not have had any legal advice whatsoever.

No forms have ever been received and yes, we would have thought we would had to have one as 1 only has 4 immediate relatives (1 who has the POA, 1 the POA has no contact with whatsoever, a full blood sibling (us) and a half blood sibling who isthe poa other child) .

1 does not have a copy of the document they signed.

1 is capable of some decision making, however, if 1 had access to all their finances 1 would just spend everything and have nothing left.

We requested that a trust was set up for 1 which would give him a regular allowance and trustees could decide to allow access to other funds if needed.

POA had no clear plan what would happen to the proceeds of the house sale and has mentioned things that concern us immensely.

We have been instructed by the POA to take keys to an estate agents so that the property can be in the auction at the end of the month. Of course we don't want to do this, but know that locks can be drilled etc...

We are also aware that this is going to cause major repercussions and will probably result in a major family rift.

POA is also happy not to conduct 1's tax affairs and this could result in 1 having a tax liability - is the POA ultimately responsible if tax returns have not been completed for 1 ??

If a POA is rescinded, can another be set straight up with a solicitor or such like holding one of the POA positions and another being held by a family member or if the money is put into some kind of trust would the need for a POA to deal with financial matters not be required ?

Thank you so much, your advice so far has been most helpful

cattermole

I don't see how they could have got POA without it being at a solicitors and 1 being present.

Have you checked on the system they do actually have this POA?

The POA can't opt in and out as they choose of managing 1's financial liabilities and yes they would be liable. They could appoint someone else to do it like an accountant but they are still responsible.

You really need to ring the Office of the Pubic Guardian asap, it all sounds a very dubious situation. Is the POA a parent of 1 then?

The house is definitely in the name of 1 is it? Not the POA in the first place?

The only other thing I can think of is that the POA is not an Attorney but has been appointed by the Court of Protection as a Deputy, this would not require consent from 1, however it would need attendance at Court and justification for being appointed an Deputy, lack of capacity would have to be shown etc.

Where is 1 living now then, if not in the house?

I agree a trust does sound the most sensible course of action. You could however argue that renting out the house would bring in an income for 1, rather than selling it.

POA must always act in the best interests of 1.

They also have to keep detailed accounts of all the money, which as a relative you can ask to see or if a complaint is made so can the Office of the Public Guardian.

Does 1 have a Social Worker or Health Worker?

cattermole

It really all sounds very odd

Read this :

https://lastingpowerofattorney.service.gov.uk/#/help/topic-certificate-providers

So if you don't name anyone to be told then you need two certificate providers to verify you know what you are doing.

You can check here whether the POA has been registered here :

https://www.gov.uk/find-someones-attorney-or-deputy

Enid0511

1 signed if I remember correctly a pink form, there was no solicitor present at this time. POA took this form away with them and as far as I am aware there are no copies. We are not aware that POA went to court, the only thing that POA has told us is that he has been to see his solicitor and he can sell the house. He has also stated that a solicitor has signed this form also.

Haven't checked system, but have just located form to do this thank you.

POA is thinking that hmrc won't find out and despite us asking for this to be addressed is happy to do nothing. We are very unhappy about this and have no problem with the POA passing the books to an accountant and 1 having to pay for this service, we just want things in order.

The POA is 70 and doesn't want to do it anymore.

We have asked several times about financial things and have been fobbed off with such phrases as I haven't had time to do a full audit etc..

Yes the house is definitely in the name of 1, it had been rented out for years to a family who have recently left when the POA contacted them and told them that he was putting it in the hands of a letting agent.

Property is in need of repair, but there are funds available to do this and basically the tennants did everything so 1 has had an income and it has cost him nothing in maintainance over the years.

Sale of property will probably give him a sum of 130k whereas renting even with fees will clear them £500 min per month. As 1 is only in his mid 40's we feel that this option would be in his best interest even with laying out about 15k to get it to an acceptable standard. 1 does have funds to do this and when asked said he didn't want to sell the property.

1 lives with his partner and hasn't lived in this property for years. He doesn't have his own social worker but his partner does.

POA is a parent who was estranged throughout 1 childhood up until 1 was in his 30's.

POA lives in the north of the country and 1 lives in the south. POA has had not contact with 1 for the last few years apart from the odd telephone call when 1 wants extra money.

We live in the south also and have limited contact with 1 purely down to the fact that we have had to request sectioning for 1 when he has become unwell so he associates us with going into hospital. We do however have his best interests at the heart of everything we do. 1 will go underground when it suits him and cannot have access to large sums of money because he will just spend it or give it away, there are concerns about alcohol and substance misuse. We do however, arrange to buy large items for 1 when required ie white goods etc.

We think a trust is best for his future, but we also think that renting the property to give him an income is the way forward. We do not want the house sold and nor does 1.

I get the feeling that the POA thinks we are stupid and is trying to pull a fast one just to get rid of the responsibility. However, when they are using phrases like "the money from the house sale can be made to disappear so the hmrc don't find it, I've got my accountant looking at that", frankly scares us...

The other thing that scares us is that 1 could be left with nothing 130k is worth much more up north than it is down south. If the current arrangement is ending we want the POA to ensure everything is done correctly.

As a sideline, 1 doesn't know that POA has instructed an estate agent as he is currently not answering his phone.