Power of Attorney question.

Sea_Shell

Sorry if this has been asked before...

If a person makes a PoA for their finances, and includes instructions to the attorney to make a payment of £xxx per month to person A, with no end date, does this "top trump" the attorney having to act in the donor's best interests?

Does it matter if the attorney is person A themselves, or person B?

Would such a request be sanctioned or even allowed by the OPG when registering the PoA?

Would it have any bearing if it could be proved person A was financially dependant on the donor?

Thanks.

naedanger

My layman's understanding:

The PoA document should not specify this arrangement. It should be documented separately. As the PoA document won't contain details of specific arrangements the OPG won't see the arrangement and therefore won't approve or disapprove of it. (If the arrangement was included in a PoA document I think the OPG would not approve the PoA document, not because they disapprove the specific arrangement but because it shouldn't be part of the PoA document.)

There is nothing wrong with the arrangement in itself if arranged by the donor while they still had mental capacity to make such an arrangement. The precise nature of the arrangement would be important e.g. is it part of a bigger contractual arrangement, or is it just a recurrent gift etc.

If such an arrangement is in place and the donor subsequently loses their mental capacity then the attorney should take into account the donor's wishes and interests and obligations when deciding whether to continue it. If the donor's funds look sufficient to last their lifetime allowing for all their needs then I would expect the attorney to continue the arrangement unless they had reason not to. However if it starts to become apparent it is in the donor's best interests that economies should be made then I would expect the attorney to stop gifts.

If the attorney is also the recipient of the payments then I would expect them to take even more care than usual to ensure everything in order when deciding the appropriateness of continuing the payments.

 

[Deleted User]

Not sure about the attorneys playing Top Trumps. but any instructions within the PoA are legally binding, so the attorneys would be obliged to carry them out, as long as the PoA was legitimately registered.

Instructions can be problematic, especially when they may potentially conflict with other instructions.

Sea_Shell

By Top Trumps I just meant which takes precedence, legally.

Instructions or Best Interest, as these may conflict against each other.

Keep_pedalling

Deleted_User said:

Not sure about the attorneys playing Top Trumps. but any instructions within the PoA are legally binding, so the attorneys would be obliged to carry them out, as long as the PoA was legitimately registered.

Instructions can be problematic, especially when they may potentially conflict with other instructions.

That is not true, for instance an attorney cannot follow a gifting instruction if means the donor is going to run out of money and no longer going to be able to pay care fees, that would be classed as deliberate deprivation of assets and could land the attorney in a whole heap of trouble.

This is what the LPA guide has to say on the matter,

Be careful with gifts

Instructions about gifts often cause problems. There are strict limits on the kinds of gifts that attorneys can give on your behalf. They can give presents on ‘customary occasions’, including weddings, birthdays and religious holidays. They can donate to charities you’ve previously given to. Any gifts should be reasonable and take into account how much money you have.

Putting an instruction that runs counter to that on the application is likely to see it rejected. 

RAS

I'm not sure what the OPG behave these days, but we had a family member who wasn't an attorney kick off because we sometimes re-funded another one.

Just happened that the second one was buying most of the donor's clothes and other sundries, and we had the receipts to prove it. We attorneys were very careful what we allowed ourselves from the donor's accounts. Not even travel costs if it could be argued that there was another reason for the journey.

We did buy the grandchildren presents but certainly not ourselves.

Savvy_Sue

Sea_Shell said:

By Top Trumps I just meant which takes precedence, legally.

Instructions or Best Interest, as these may conflict against each other.

Can't see how it could be anything other than Best Interest trumping Instructions. 

Sea_Shell

Savvy_Sue said:

Sea_Shell said:

By Top Trumps I just meant which takes precedence, legally.

Instructions or Best Interest, as these may conflict against each other.

Can't see how it could be anything other than Best Interest trumping Instructions. 

TBH that's what my head is telling me too.    But I just wanted to know where I'd stand if I was put in the position of having (being asked) to carry out any financial transfers that are NOT in the best interest of the donor.    Which is what they are doing with their money at the moment! - They want to maintain the status quo, even if it cost them their last penny, it would seem!

However, it would leave the financially dependant person up a creek, but I guess that would not be my problem (sit back and watch them get into debt?)

Savvy_Sue

Sea_Shell said:

Savvy_Sue said:

Sea_Shell said:

By Top Trumps I just meant which takes precedence, legally.

Instructions or Best Interest, as these may conflict against each other.

Can't see how it could be anything other than Best Interest trumping Instructions. 

TBH that's what my head is telling me too.    But I just wanted to know where I'd stand if I was put in the position of having (being asked) to carry out any financial transfers that are NOT in the best interest of the donor.    Which is what they are doing with their money at the moment! - They want to maintain the status quo, even if it cost them their last penny, it would seem!

However, it would leave the financially dependant person up a creek, but I guess that would not be my problem (sit back and watch them get into debt?)

As long as they retain capacity, they can do what they like with their money. However, it might be worth pointing out to them that as Attorney, you can only act in their best interests, and that spending all their money in a particular way does not seem to be in their best interests, so you would be unable to continue with that pattern. 

Any mileage in trying to redeem the situation of the recipient? 

Sea_Shell

Savvy_Sue said:

Sea_Shell said:

Savvy_Sue said:

Sea_Shell said:

By Top Trumps I just meant which takes precedence, legally.

Instructions or Best Interest, as these may conflict against each other.

Can't see how it could be anything other than Best Interest trumping Instructions. 

TBH that's what my head is telling me too.    But I just wanted to know where I'd stand if I was put in the position of having (being asked) to carry out any financial transfers that are NOT in the best interest of the donor.    Which is what they are doing with their money at the moment! - They want to maintain the status quo, even if it cost them their last penny, it would seem!

However, it would leave the financially dependant person up a creek, but I guess that would not be my problem (sit back and watch them get into debt?)

Any mileage in trying to redeem the situation of the recipient? 

I've offered to help with budgeting etc. but it's not been taken up on.

Sea_Shell

I've come to the conclusion that someone may be of sound mind, but that doesn't mean they also make sound decisions!