power of attorney - Decisions

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?

[Deleted User]

Malthusian wrote: »

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?

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

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".

[Deleted User]

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.

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

Malthusian wrote: »

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).

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

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

Frogletina wrote:

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.

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.

Primrose wrote: »

Too late now if the individual has dementia, to make a new P of A

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

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?

Primrose

I think attorneys are entitled to reclaim reasonable legitimate expenses but they have to be whiter than white in the way they handle an individual's affairs so in the interests of scruples it's better that any "treats" previously enjoyed as a gift from from the grantee cease once the P of A kicks into action due to loss of mental capacity.

It wouldn't apply simoly because a P of A" is REGISTERED because of course this can be done years in advance of somebody losing mental capacity (if indeed they ever do) simply as a precaution against it being needed sometime in the future. Whilst a donor still has mental capacity they are totally free to do what they like with their own assets in terms of giving gifts , treats etc.

If there is any doubt about somebody's mental capacity the correct thing is to is for the donor to be assessed by their GP or other suitably qualified physician.

Indeed it's advisable for a P of A document to be registered as soon as it's been prepared so that the Office of Public Guardian can check that it has been drawn up correctly, signed and dated in the right order and is legally fit for purposes. There no point in preparing a document and sticking it in a filing cabinet for years only to find that years later the donor has lost mental capacity and the document has been incorrectly drawn up and is therefore useless.

So yes, the donor can have their P of A drawn up and registered and go on giving gifts etc as long as they retain mental capacity. The donor can also withdraw a P of A at any time while mentally competent if they decide they no longer wish a person to act for them.