Power of attorney question.

DesperateScousewife

My father has recently died. My brother and I have Lasting Power of Attorney for my mum who has Vascular Dementia.

Brother lives 200 miles away. He organised the POA. Because I live by mum and because my brother couldn't be bothered, I have been dealing with all the paperwork.
I've asked him for the POA original papers as the bank needs to see the originals. He seems hesitant to give me them. Insisting that because he is 'the author' of the POA and they are a legal document they have to stay with him.

Can I get legal copy of the POA to have in my possession?

Thanks in advance for any replies.

TBagpuss

If you are both attorneys then theres no more reason for it to be in his possession than in yours, but yes, you should be able to get a certified copy - your brother would need to take the original, plus a photocopy, to a solicitor or court and get the copy certified. For a power of attorney every page needs to be separately certified and then the final page has to also certify the whole (stating the number of pages ) is accurate.

If it was drawn up by a solicitor they may be willing to do a certified copy without charging, otherwise there will be a small (usually per page) charge. If he takes it to the public counter of a court they should be able to do it free of charge.

You may find that some organisations insist on seeing the original (although they shouldn't!) so it may be better if your brother gets the certified copies, keeps those and lets you have the original.

Yorkshireman99

DesperateScousewife wrote: »

My father has recently died. My brother and I have Lasting Power of Attorney for my mum who has Vascular Dementia.

Brother lives 200 miles away. He organised the POA. Because I live by mum and because my brother couldn't be bothered, I have been dealing with all the paperwork.
I've asked him for the POA original papers as the bank needs to see the originals. He seems hesitant to give me them. Insisting that because he is 'the author' of the POA and they are a legal document they have to stay with him.

Can I get legal copy of the POA to have in my possession?

Thanks in advance for any replies.

Are the attorneys authorized to act jointly or jointly and severally? In any case your brother is being totally unreasonable.

DesperateScousewife

We are authorised to act jointly.

Yorkshireman99

DesperateScousewife wrote: »

We are authorised to act jointly.

That means that your brother has to agree to every single action and probably sign as well. That obviously means complications. If your brother is not interested in acting then it would be much simpler if he resigned his attorneyship.

finallyretired

I hope that I've got this the right way around. If you just have joint power of attorney and can only act "jointly" then you both have to act together on all decisions e.g. setting up bank accounts/moving money etc. If one of you is unable or unwilling to act then the entire power of attorney is no longer valid. This would be a major problem if the person (donor) no longer has capacity to create a new power or attorney.

If under the terms of the power of attorney you can act "jointly or severally" then either one of you can make a decision/action. Even then one of the attorneys resigning could be a problem if the other one died or couldn't act through bankruptcy or insanity or some other reason. So resigning could be a bad move if there are no powers to create new attorneys under the terms of the original power of attorney.

Editted to add: My comments were in relation to enduring powers of attorney, and I've just realised that you have a lasting power of attorney, but I imagine that similar considerations may apply.

Take proper legal advice before either of your resign, assuming that either of you wished to do so.

Keep_pedalling

Yorkshireman99 wrote: »

That means that your brother has to agree to every single action and probably sign as well. That obviously means complications. If your brother is not interested in acting then it would be much simpler if he resigned his attorneyship.

Unfortunately if the donor has stipulated that the attorneys can only act jointly, and one of those attorneys will or can no longer act the whole POA will fail unless it names an alternative attorney or attorneys who would then take over from all the original attorneys.

The brother is also talking rubbish about needing to hold on to the original document because he is the author. The Donor (your mother) is the one who should have made the decisions as to what was included in the LPA. You should hold a certified copy of it, and copies are required if you ever need to send one to an organisation such as the DWP.

littleheather

I think you can get a copy from the office of the public guardian who record these? I think there is a small fee.

Keep_pedalling

littleheather wrote: »

I think you can get a copy from the office of the public guardian who record these? I think there is a small fee.

I believe they will now only do this if the original has been lost or destroyed. As the brother holds the original he should ring round a few local solicitors to get a price to obtain a copy.

When I did my mother's a couple of years back, I made a copies and got her to certify them, but that can only be done when the donor has the mental capacity to do so.

RAS

DesperateScousewife wrote: »

We are authorised to act jointly.

As said said previously, if you only have joint power rather than joint and several (with limits is desired), than you can do nothing without the explicit agreement of your brother to every single action. Which renders the LPA somewhat redundant if your brother is being anything other than fully co-operative.

Even with joint and several power we struggled because the limit on several action was eventually exceeded by the care home fees, so we both had to sign every time.

securityguy

I'm amazed that people agree to joint (rather than joint and several) PoAs.

My parents originally said that they were going to make my brother and I joint attorneys, and both of us point-blank refused: we live a fair distance apart, both work full time in jobs involving travel and currently meet up about twice a year.

We said that if they wanted that form of PoA they should find other people willing to sign it, but (a) we wouldn't and (b) we would state, clearly and for the record, that in the event of our parents needing a PoA we would not seek one from the court of protection (I've seen how hard those are to run). That might mean they would reap the consequences of their own decisions: well, life's about choices.

Either they trust us enough to act as attorneys or they don't, and I'm not interested in playing games. After all, if they think we're both bad people then we would still be bad people acting in concert, and if they think only one of us is a bad person, the other should be made a sole attorney.

After a while things calmed down, and we hold a j&s PoA with our respective spouses named as alternates in the event of our death.