Power of attorney conflict of interest

Justi

Hi
My dad rents a flat from me and recently asked me to take out a POA for him. I am worried there may be a potential conflict of interest though. Would this mean that I could not put up his rent or give him notice if I needed to sell the flat (because the attorney has to act in the donor's best interests)? Neither of these are issues at the moment but I don't want to get myself into an impossible position. There really isn't anyone else who can be his POA though, so I am not sure what to do. Thanks for any advice.

BooJewels

I can't answer from any informed position or as to what others will no doubt add from a legal perspective - but I am a daughter (along with my sister) actively working under an LPA for an elderly father in care. It's your father that will set up the LPA - you just have to agree to it and you only use it fir occasions where your father doesn't have capacity to do things for himself - that might be temporarily if he's ill, or as in my own case, as my father is no longer able to manage anything for himself, I've taken over his entire administrative affairs.

My own approach is to do everything I can in his best possible interests, record everything I do (and my sister and I report everything to each other, we've taken on slighly different complimentary roles) and work under the assumption that at any time, his solicitor might ask me to explain myself and want to see said records. I think that's pretty unlikely, but I conduct myself on the pretext that it might happen, so I have nothing to hide and nothing awkward to explain.

It's quite a responsibility and rather more work than I had envisioned (an LPA makes things possible, but it don't make 'em easy), but I don't even want to think about the pickle we'd be in without it. I think he paid about 400 quid to set them up, but I saved him that in the first month and have saved or gained him 15 times that since (applying for financial help, cancelling expenses he doesn't now need etc).

Justi

Thank you, Boo Jewels. I should explain that dad currently does have capacity and at this stage the LPA would be just for me to help manage his finances. I can see absolutely the advantages of having it in place, and also the welfare LPA for later on if necessary, but just wondering how it would sit with me also being his landlord.

pphillips

I think you just need to understand that being a landlord and a power of attorney means you are acting in two separate roles.

When you put you landlord hat on, you make decisions as a landlord and these are your decisions, you do not need to make decisions in the best interest of your tennant.

When you put your attorney hat on, you act on behalf of the donor and can only make decisions that are in their best interests.

Only wear one hat at a time, if you feel you cant do that then it's probably best that you decline to be his attorney.

Sea_Shell

I suppose though if you decided to up the rent by £500 pm, but then accepted that increase as attorney, it could be seen to not be in your dad's best interest...but neither might moving be!!

Blurred lines.

BooJewels

Justi wrote: »

Thank you, Boo Jewels. I should explain that dad currently does have capacity and at this stage the LPA would be just for me to help manage his finances.

Indeed, I understand that, you can't set one up unless the party does have capacity at the time they set it up. And once in place, it doesn't have to be used, or can be used periodically, as required. When my older relations set them up, I hadn't fully appreciated this myself. I had been under the misunderstanding, that once evoked, you would have to do everything for that person and it couldn't be reversed, but an LPA can be used as and when required.

There might be times, for example, when your father has full mental faculties, but might be housebound after surgery or something, so needs you to attend the bank for him or undertake particular short term tasks and may be able to return to doing them himself as and when he recovers.

I can see absolutely the advantages of having it in place, and also the welfare LPA for later on if necessary, but just wondering how it would sit with me also being his landlord.

I'm sure someone else will be able to explain the actual legal side of it (there's an extensive doc online that is your guidance as to your requirements/obligations under an LPA, I think it comes under the mental health act - I'll see if I can re-find it shortly) - but the general principles I outlined above would be good principles to stick to - you're required to act in their best interests and to take their anticipated wishes into account when making decisions - plus account for all spending and keep their money separate from yours.

For example, an aunt has asked me only today why I didn't take some of his money to buy myself a Christmas gift, as she felt I was entitled and he'd be perfectly happy for us to do so. But whilst in the past he has always been very generous with gifts and I'm sure he'd be fine with it if I did, he hasn't explicitly instructed me to do so, so I simply will not do that. I mentioned it to my sister, she'd had the same conversation and neither of us felt it was appropriate. So we're both perfectly happy to go without gifts this year.

So it will largely come down to where your moral compass points. For example, we're preparing to sell his house sometime soon and we've had conversations about the best way to market it - lower price to effect an efficient and speedy sale to a developer (probably without a chain), or at a higher price that may take months and lots of viewings to sell and take a while to complete. Both options might be considered self-serving to some degree - save ourselves some time and aggravation or potentially put more in the pot to inherit. So we have to detach our own interests and go for the option that suits his current needs best, as it's very much still his money. In his case, a speedy sale, at maybe some financial loss, will at least secure his future care fees, which is our main priority at the moment, as he doesn't have enough money left to give us the luxury of time to hold out for a higher price.

elsien

As an aside, you don't need a solicitor to do the power of attorneys, you can do them yourself much more cheaply - all the information is on the OPG site.
And don't delay the welfare one - sudden health issues can mean it may be needed unexpectedly.

Justi

Thank you everyone. This is extremely helpful. It does all sound a bit of a minefield but not impossible to navigate if one is careful to keep the roles separate.

One other question I have is whether as attorney I would be required to carry out everything he asks. For example, if he asked me to withdraw a lot of cash for him when he didn't have any reason for needing it, would I have to do this. It's not a big issue at present but he has got into trouble a few times with drawing out large amounts of cash which then goes missing. I worry that this kind of thing is only likely to happen more as time passes, and I wouldn't want to be in a position where I was legally required to do everything he asked me even if it didn't seem wise or safe.

BooJewels

elsien wrote: »

And don't delay the welfare one - sudden health issues can mean it may be needed unexpectedly.

Indeed, I've needed to produce that one twice now, for urgent matters.

I would also add, to ensure that you have access to either the original document or a certified copy, in case you do need to present it in a hurry - we had to dash to get the copy kept in the safe on one emergency occasion on a Saturday. Things might have been different if we'd had to wait for the solicitor to open on Monday morning. The immediate decision was satisfied by seeing a scanned pdf on a phone, but they wanted sight of the actual document the same day.

getmore4less

Read the mental health act code of conduct which applies to LPA.

Justi

Thank you. I think that legally dad definitely does have capacity. As I understand it a person with capacity certainly has the right to make unwise decisions but what I am wondering is whether the attorney is required to help him carry those out. I can see that the attorney would not be able to stop him eg if he were to withdraw a lot of cash himself, but would the attorney actually have to help him if he asked for that?