Could he abuse a power of attorney?

Cottage_Economy

I'm sorry if this is a little long.

MIL lives with DH and I, 85 and in reasonably good health, still drives and shops as long as someone is with her, but on life-long medication that needs monitoring and has a generalised anxiety disorder. My BIL and DH have joint Power of Attorney.

Both brothers got some money when MIL downsized - an early inheritance if you like - and she kept a lot of it back for possible future care home/nursing fees.

BIL is incapacitated and not working. All of his inheritance has been spent and his wife has recently asked for a divorce. He wants to buy a house outright after the divorce, so he has just tried to tap us for a £50k loan, which he says he will pay back when the divorce is finalised. Unfortunately, he knows we haven't spent DH's inheritance - we've squirreled it away for DH's retirement in a few years time. He is trying to get another £50k off MIL - no mention of paying back there so presumably he thinks this is his 'rightful' inheritance.

His other great money-making scheme is for her to live with him so he can get bill money off her and claim a carer's allowance (she does not need care in the slightest). At the moment I do most of the housework, and she tries to do a little every day to keep herself active, however, she tires very easily (for example, 30 minutes ironing can exhaust her on a hot day and she'll need a sleep to recover). BIL does nothing in the house (one of the reasons his wife is divorcing him) and I'm worried will treat her like a skivvy.

DH is ringing him shortly to tell him no to everything.

The divorce has left BIL very stressed and depressed - we think he needs medical intervention but won't get help. In the past he has used emotional blackmail and intimations of suicide when he can't get what he wants, and that plays on MIL anxiety and fear. We don't want him emotionally twisting her arm. He rings several times a day and we can't police the phone every time. She sits with it next to her waiting for his calls. I don't want to treat her like a child and take the phone off her - she's an adult - albeit a vulnerable one.

What practical steps can we take protect her without inflaming the situation?

We are also very worried that BIL could try and access her money through the POA and claim he had permission. Is that possible or will the bank require permission from both DH and BIL? As she loves him, she would never report him for taking the money.

Rambosmum

If the POA is "jointly and severely" (which it most likely is) then BIL can make decisions with out DH having a say.


HOWEVER


To use POA you MIL must be incapacitated and unable to make the decision herself, and then any decisions made must be in her best interest. Having said that though, if he did abuse it, the only course of action would be legal, which it is unlikely MIL would pursue by the sounds of it.

Cottage_Economy

Rambosmum wrote: »

If the POA is "jointly and severely" (which it most likely is) then BIL can make decisions with out DH having a say.

HOWEVER

To use POA you MIL must be incapacitated and unable to make the decision herself, and then any decisions made must be in her best interest. Having said that though, if he did abuse it, the only course of action would be legal, which it is unlikely MIL would pursue by the sounds of it.

I'll try and find the documents associated with it. I'm not sure whether it is "jointly and severely".

To get her labeled as incapacitated, what would he have to do? Presumably he can't ring up and proclaim she is to all and sunder. He would have to get GPs involved and that would require her to be tested etc?

Cottage_Economy

Well, I've had a look at the letters DH has had and it just says LPA for Property and Financial affairs. Doesn't say whether it is jointly and severally and DH can't remember. Presumably that is on the original document that MIL has in her records. Trouble is, I can't ask her for that without triggering the Spanish Inquisition.

Gavin83

Rambosmum wrote: »

To use POA you MIL must be incapacitated and unable to make the decision herself, and then any decisions made must be in her best interest. Having said that though, if he did abuse it, the only course of action would be legal, which it is unlikely MIL would pursue by the sounds of it.

Well here's the catch 22 situation. If he uses it he's declaring that she isn't capable of dealing with her affairs. If she isn't capable she also isn't capable of granting/denying permission for him to do this and therefore it wouldn't be her decision to take him to court or not...

In all honesty OP even if she is capable I don't think you'd need her permission, it's financial abuse. They'll be a council team which deal with this so if he nabs the money report him. They'll ultimately take him to court if need be, permission or not. Consider it similar to domestic abuse, even if the victim doesn't want to pursue it they'll do so anyway.

Oh, and good move in not loaning him the money, you'd have most likely never seen it again.

troubleinparadise

Gavin83 wrote: »

In all honesty OP even if she is capable I don't think you'd need her permission, it's financial abuse. They'll be a council team which deal with this so if he nabs the money report him. They'll ultimately take him to court if need be, permission or not. Consider it similar to domestic abuse, even if the victim doesn't want to pursue it they'll do so anyway.

I’m afraid that isn’t quite correct. The Office of the Public Guardian administers LPAs - it is possible to apply to them if there are concerns with the actions of an Attorney. They may investigate if they feel there is a case. As it is a civil matter, the Police don’t get involved very often.

There is no ‘council team’ who deal with these problems. Social Services can be informed if abuse is suspected, and they may be able to help; and there is a company called Action on Elder Abuse who can give support and advice.

As the Mother has capacity, if she gives her permission or makes a gift, it is difficult to prove that any wrongdoing has occurred.

Gavin83

troubleinparadise wrote: »

There is no ‘council team’ who deal with these problems. Social Services can be informed if abuse is suspected, and they may be able to help; and there is a company called Action on Elder Abuse who can give support and advice.

There certainly is, I used to sit about 10 feet away from them when I worked in social services.

Their sole purpose was to investigate cases of financial abuse. Of course the debate would be if this constitutes financial abuse. Money given as a gift, probably not. To abuse his POA to withdraw money without permission, almost certainly.

TBagpuss

It's not correct that he can't use the POA unless MIL is incapacitated. It depend s on the terms of the POA but it is only a health POA which can't be used unless the donor lacks capacity. The property and financial affairs one can be used (with the donor's consent) from the day it is signed, it then has to be registered if they lose capacity.

However, in all cases, the attorney has to act in the best interests of the donor.

If MIL has capacity, she could revoke the POA and grant a new one, perhaps just to your DH, or to him and you.

She could also, if she wished, chose to lend him the lump sum and update her will to record that it has been loaned and is to be taken into account as part of his share of his inheritance if it is not repaid by the time of her death. If he wants it to buy a property it could also be lent by her as a secured loan, so he would owe her (or her estate) the money. That might be the way forward if you think she will succumb to his emotional blackmail, it would protect her interests and it would be difficult for him to object unless he was willing to admit he was hoping to get it on top of anything he may get when she passes.

If he used her funds without her consent then there are legal (and indeed potentially criminal) sanctions, but it would depend a little on whether MIL would cave and say she had given permission.

Cottage_Economy

TBagpuss wrote: »

It's not correct that he can't use the POA unless MIL is incapacitated. It depend s on the terms of the POA but it is only a health POA which can't be used unless the donor lacks capacity. The property and financial affairs one can be used (with the donor's consent) from the day it is signed, it then has to be registered if they lose capacity.

It has already been registered.I think it was done automatically as part of the process. She has full capacity though, no doubt about that. We've just gone out to the supermarket, she drove, and we had to unexpectedly negotiate our way to a new part of town to pick something up. She did that no problem at all.

TBagpuss wrote: »

However, in all cases, the attorney has to act in the best interests of the donor.

He very rarely ever acts in her best interest. His thoughts are always for himself. The marathon phone calls he is subjecting her to is causing her so much stress she has insomnia and has needed emergency dental work as she has begun grinding her teeth. It's all about him and has been as long as I have known him.

TBagpuss wrote: »

If MIL has capacity, she could revoke the POA and grant a new one, perhaps just to your DH, or to him and you.

That would be like putting petrol on a fire at the moment. I don't think I will ever persuade them that he could financially abuse his position until the evidence is staring them in the face that he has.

TBagpuss wrote: »

She could also, if she wished, chose to lend him the lump sum and update her will to record that it has been loaned and is to be taken into account as part of his share of his inheritance if it is not repaid by the time of her death. If he wants it to buy a property it could also be lent by her as a secured loan, so he would owe her (or her estate) the money. That might be the way forward if you think she will succumb to his emotional blackmail, it would protect her interests and it would be difficult for him to object unless he was willing to admit he was hoping to get it on top of anything he may get when she passes.

I don't even thinks she wants to do this. She wants to keep the money in her accounts so she has independent funds to pay for care services to keep healthy in our home for as long as possible and then a good standard of nursing home if needed. If she gives him the money she will never see it back.

TBagpuss wrote: »

If he used her funds without her consent then there are legal (and indeed potentially criminal) sanctions, but it would depend a little on whether MIL would cave and say she had given permission.

Primrose

If the p of. A is registered jointly and severally bil can access his mother's money but onky with her permission long as she still has mental capacity.

I would think his mental and financial situation at the moment makes him an unsuitable attorney especially if he is incapable of acting in his mother,s best interests and disregarding his own needs.

He is obviously exerting emotional abuse and pressure on his mother which in itself makes him unsuitable to act as her attorney and I think the best course of action in view of his dubious financial position and impending divorce would be for him to remove himself as one of her attorneys. If he refuses to do that, your mother has the power to remove him herself by writing to the Office of public Guardian, stating the reference number of her app,ication, and asking for him to be removed.

badmemory

Who is holding the actual paperwork for the POA? This should be your MIL. The only paperwork an attorney should hold before enacting is the letter your OH has. No-one can use the POA without the 12? page document. Your BIL cannot go into a bank with his letter & get his hands on anything. I just hope she hasn't been talked into giving him the paperwork.