power of attorney - Decisions

Sea_Shell

What if they lose physical capacity, to make any purchase or bank transfer themselves, but still want to make a gift to the PoA. How should that be documented?

Primrose

Loss of physical capacity isn't the same as loss of mental capacity. If the person who has granted the power of attorney to an individual is physically disabled and can't get to a bank for example to withdraw money the appointed attorney may do so with the donor!s knowledge and agreement. The attorney is effectively acting as an enabler or facilitator as I see it but they must act totally in the donor's interests.

But if the donor then became mentally incapacitated as well, the donor then has an obligation to take over the control and running of that person's financial affairs. If you have a specific situation in mind, you should seek clarification from a solicitor skilled in dealing with family affairs. I imagine in the preference section you could add a clause along the lines "My attorneys make make gifts not exceeding £xxx with my agreement if I still have mental capacity" but you need to check this out with a solicitor. There is always the capacity for somebody to abuse their powers which is why it is so important to have total trust in the people you appoint as attorneys and also to decide whether all decisions must be made jointly if you have more than one attorney, or jointly and severally in specific situations where something important like the sale of a property is likely to be involved.

However if all decisions are made jointly even simple actions like writing out a cheque or withdrawing money on behalf of the donor will have to be signed off by all attorneys which is not practical if one of the attorneys lives some distance away. Imagine having to get all attorneys to sign cheques for care home fees every months or even for a donor!s dental treatment session.

troubleinparadise

Sea_Shell wrote: »

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?

I suggest you contact the Office of the Public Guardian to find out what their official stance is on this.

That way you will know exactly what you can or can't do, and how to record it.

Blue_Max_2

I have POA and can just imagine the general upset if I didn't ensure her children/grandchildren/children in law received gifts, to the usual value, at Christmas and birthdays. There are lots of areas that are grey though. For example what if another grandchild is born or there is a divorce/remarriage? The important things with POA are that the Attorney follows the donor's wishes and needs and that their actions are whiter than white.

badmemory

Surely a POA is about allowing the donor to continue their financial life as if they are still in full control. This would mean if family were accustomed to receiving birthday and Christmas presents of £100 each that should continue even for a newborn they can no longer remember being born. What shouldn't happen is the attorney deciding I don't think £100 is enough & changing it to £1000.

Perhaps I should add here that after the first Christmas we actually stopped having presents because my mother had always been extremely good at selecting them and having money just didn't seem right.

Malthusian

Blue_Max wrote: »

There are lots of areas that are grey though. For example what if another grandchild is born or there is a divorce/remarriage?

In theory this should be straightforward - if she was accustomed to giving all her grandchildren presents on customary occasions then that will apply to the new grandchild as well. Only complication is whether the newborn should be receiving the same amount as her existing grandchildren who might all be teenagers / adults - but it should not be rocket science to work out a reasonable amount. Asking the other family members what the donor used to do would be a good starting point.

Divorce / remarriage should similarly be straightforward. Did the ex receive presents purely because they were the donor's in-law or did the donor care for the ex personally? Was the divorce amicable and is the ex still a family friend or a pariah? Again, if the attorney doesn't know the other family members should be able to help them out.

You can always check with the Court of Protection if you are unsure but this doesn't sound to me like a scenario that should require it, unless it is a lot more complicated than that.

getmore4less

a useful read to undestand the role of the OPG

https://www.gov.uk/government/publications/safeguarding-policy-protecting-vulnerable-adults/sd8-opgs-safeguarding-policy