Power of attorney conflict of interest

Justi

elsien wrote: »

potentially someone is taking advantage and maybe that's something you might want to look into a bit more, depending on what sums are involved.

Yes, I am afraid this is part of the situation. To try and keep him safe almost all his expenses are paid electronically and he shops with a contactless card, but he still wants cash and that cash often ends up missing (suspected to mean with with someone else). I know and accept that it is his money and his right to choose but I don't want to be in a position where I have to facilitate it happening.

BooJewels

This is why it can feel such a minefield to be in this position - doing the best for them might end up slightly at odds with their stated wishes and earlier behaviour. You might have to get creative to come to arrangements that satisfy all sides and protect him.

For example, my Dad turned out to be spending a lot of money on donations to charity - and to be blunt, he needed the money for his own care. So we had to decide to cancel all these DDs (and there were many, each one needing to see the LPA) and standing orders. His last couple of cheque books were all payments to charities. So sometimes, what's best for them might not be entirely in-line with their choices. Obviously we discussed it with him and explained why, but he just shrugs and says "whatever you think best". When I started he had 33 DDs and now he has 7 regular items.

Justi

Wow, BooJewels, you did a great job there. Glad to hear that it worked out fine for you and your dad in the end. We're only just at the beginning of these discussions - not looking forward to it, but I can see it will need to be done.

calicocat

Justi wrote: »

Yes, I am afraid this is part of the situation. To try and keep him safe almost all his expenses are paid electronically and he shops with a contactless card, but he still wants cash and that cash often ends up missing (suspected to mean with with someone else). I know and accept that it is his money and his right to choose but I don't want to be in a position where I have to facilitate it happening.

Re : you putting up rent, I would say if you put it up beyond what would be the norm for either that area or a year on increase then that could be seen to be odd. So if you are upping it in line with the norm you would be fine.

If he has capacity, he can withdraw as much cash as he likes, my mum keeps doing this, and is her right. Not huge sums so I just let her potter on doing it as it keeps her happy. Christ knows what she does with it. Old people like having cash, I will be the same.

If you suspect someone is coercing your dad into giving them money, or stealing it from him, or over charging/ not giving the right change ( effectively stealing) , you can put in a safeguarding referral. Have you spoken about the missing money? Is it huge amounts? . A friend of my mums is giving her cleaner more money than some would see as right, however she has capacity to do so. She does quite a bit extra for her though, goes off doing shopping, and various other things for her. Mums friend sees her as a huge help and likes her, so is possibly just giving her what she wants to. Others could see it as taking advantage.....but is it, it can all get very grey.

If your dad had lost capacity, and you were put in the position of facilitating this, it would be up to you , as you would be in charge of finances for that time. It’s then up to you if you feel your dad would want to continue, and whether you feel his finances can cope with continuing it, given he may need to pay for care later etc. If you think this person is taking advantage, you could argue that you can no longer facilitate this as due to lacking capacity you no longer can be sure your dad would want to continue under the circumstances. This is why we have 3 people involved in my mums LPA.

If say my mums cleaner started helping her in the garden, getting the odd bit of shopping in for her etc, and my mum saw fit to give her money , if it was excessive I would have a word with her ( the cleaner I mean).

Justi

Thank you Calicocat. It is tricky in my dad's case as he is being romantically exploited. As long as he keeps providing cash she's around, otherwise not. I can see it is his right to 'buy' affection if he wants to but I don't want to enable this, which is why I am seriously wondering whether I am the right person to act for him. A more neutral third party might be better able to distance themself and make more impartial decisions.

Regarding rent, I am not planning to put it up and certainly not by any large amount. I was just wondering whether in principle being a landlord might conflict with LPA duties. The kind people on here have set my mind at rest over this but I am now much more concerned about the issue of financial exploitation and me ending up being party to that.

A lot to think about. I probably need to take some legal advice...

Justi

I guess for me it boiling down to the question of how I would manage the twin and potentially conflicting responsibilities of (a) acting in dad's best interests and (b) carrying out his wishes/instructions.

Mojisola

Justi wrote: »

Thank you Calicocat. It is tricky in my dad's case as he is being romantically exploited. As long as he keeps providing cash she's around, otherwise not.

As he is regularly giving her what sounds like substantial amounts of money, she could have a claim against his estate, if she hasn't already got him to make a will in her favour.

BooJewels

I think, as you suggest, taking professional guidance would be a very good idea. Because in a public form like this, we can only talk in general terms and you'll know much better what his current mental state is like and his finances.

One of my main tasks - and I'm sure it's the same for many in our position - is trying to preserve as much of his money as possible - as he has a shortfall each month between what is a decent pension and care costs, plus keeping his house insured and powered etc. until we sell it. So his pennies are perpetually being eroded.

So, for me, not spending anything that isn't absolutely necessary is something I'm enthusiastic about. So only you can know what his circumstances truly are and how his future financial well being might be impacted by a gold digging girlfriend. Especially if in future he might need care etc. So get some professional help, talk it over with your Dad and then make some decisions.

elsien

Justi wrote: »

I guess for me it boiling down to the question of how I would manage the twin and potentially conflicting responsibilities of (a) acting in dad's best interests and (b) carrying out his wishes/instructions.

If he lacks capacity you act in his best interests by taking his previous wishes and preferences into account. That does not mean that having given them you are bound to follow them, if you do not believe it is in his best interests to do so, unless it is specifically set out in the LPA. So you might decide that £20 a week is affordable, in line with his previous wishes, and keeps him happy whereas £200 a week is not in his best interests to be losing. For example. His wishes at that point would be one factor that you take into account amongst all the others when deciding on his behalf. The OPG has guidance on gift giving which would be helpful at that point.

https://www.gov.uk/government/publications/giving-gifts-a-guide-for-deputies-and-attorneys

The issue you have at the moment is that you believe that he has still capacity so there is no conflict of responsibilities because there are no best interests decision to be made. Legally you can only make a BI decision for someone who lacks capacity.

The LPA does not cover this - it gives authority to wave at the bank to access his account and carry out transactions with his permission but it doesn't tell you that you have to do so. That's why I said you need to talk to him about this because LPA or not, he's still going to be asking you to get money for him so you need to decide how best to handle it with him. Can he afford what he is giving away?
The alternative to the LPA for now is to set up a third party bank mandate which allows you to do the same thing in supporting him with some aspects of his banking as long as he retains capacity. This will lapse if he loses capacity so he would still benefit from an LPA to kick in at that point.
Once he loses capacity, you are probably better placed to be his LPA as you will know far better than someone else what his wishes were likely to have been. And solicitors charge stupid money for carrying out the role.

BooJewels

elsien wrote: »

Once he loses capacity, you are probably better placed to be his LPA as you will know far better than someone else what his wishes were likely to have been. And solicitors charge stupid money for carrying out the role.

Indeed. The OP was expressing concerns earlier about being the right person to be their Attorney, but actually, it would be my contention that precisely these concerns make you just the right person. Especially as he's asked you to do it. Much better to be someone who knows and cares for the donor.

I have a little check and balance I run through in my head when making decisions - 'what would he do - what would he expect me to do'. And it pretty much always boils down to ensuring that he's comfortable in the care home he likes (the staff are amazing, it's a lovely place), even if the donkey sanctuary he previously supported lose out. Or whatever. I can always make good at some point later if opportunity arises.