Power of Attorney question.

naedanger

People can write into their poa documents that they have two attorneys who can each act independently of the other. So what is the extra problem that arises if this situation is described over two rather than one document?

Pollycat

pphillips said:

Marmaduke123 said:

This is something which one of the broadsheet newspapers may be interesting in investigating, all details changed of course.

It's inconceivable that there could be two sets of valid POAs with different attorneys, relating to the same person. If this is really the case, and not just a mistake or oversight by the OPG, the rules need to be changed

Let's suppose for now that OPG are following the rules, these rules are not made by OPG they are laid down by Parliament. So in order to get them changed you basically need the support of the government. I personally don't believe the government will want to put any further obstacles in the way of people making their POAs, no matter how strongly anyone argues that it's bad idea for the donor to have more than one of each type at the same time.

I'm not arguing but I personally think it's very bad to have more than one type of LPoA at the same time, especially if the attorneys on different LPoAs are estranged from each other (as seems to be the case here).

If one attorney believes 'x' action is best for the donor and the other attorneys believe 'y' action is best, who gets the final say?

naedanger said:

People can write into their poa documents that they have two attorneys who can each act independently of the other. So what is the extra problem that arises if this situation is described over two rather than one document?

So why does it say on GOV.UK that if you (the donor):

If you want to add another attorney you need to end your LPA and make a new one.

Doesn't that indicate that there should be a single LPoA with all attorneys named on that single LPoA acting jointly or severally (whichever the donor has chosen)?

Flugelhorn

naedanger said:

People can write into their poa documents that they have two attorneys who can each act independently of the other. So what is the extra problem that arises if this situation is described over two rather than one document?

That's a good point - I know it is not the same as this situation but I suspect what usually happens is that people tick the "jointly and severally " box when they do the LPOA as it will be easier for the attorneys etc who appear to get along  - however there will be occasions when the attorneys start to differ in their opinions and views. Should be less likely to be a problem if there are clear instructions re finance  but likely to get more tricky on health and welfare.

I specifically declined  being H&W attorney with a another relative as I knew that after decades in healthcare that my views on medical care differed significantly from the other potential attorney and could see "trouble ahead"

Sea_Shell

It does make you wonder if OP's case is a one off in isolation though, if the staff don't have that OMG!!! moment when it's been pointed out to them that more than one valid PoA has been registered, for the same part (ie financial), without the old one being formally withdrawn.

As Pollycat says, this could cause huge problems if each separate attorney has different view as to what is best, and they are all pulling in different directions!!!

What if you were completely unaware that another PoA was in force, and you go to the bank to make a transfer, and all the money has already gone!!   It's crazy.

For all we know, during these last 18 months, the OPG could just be waving all applications through on a "fast-track" , just to get them done, and cleared off their desks (or kitchen table!!)

The question is, is it rife, or a one-off?

Pollycat

Sea_Shell said:

It does make you wonder if OP's case is a one off in isolation though, if the staff don't have that OMG!!! moment when it's been pointed out to them that more than one valid PoA has been registered, for the same part (ie financial), without the old one being formally withdrawn.

As Pollycat says, this could cause huge problems if each separate attorney has different view as to what is best, and they are all pulling in different directions!!!

What if you were completely unaware that another PoA was in force, and you go to the bank to make a transfer, and all the money has already gone!!   It's crazy.

For all we know, during these last 18 months, the OPG could just be waving all applications through on a "fast-track" , just to get them done, and cleared off their desks (or kitchen table!!)

The question is, is it rife, or a one-off?

You mentioned this in response to one of my earlier posts and I (naively) thought it couldn't happen.

I was wrong.

I'm astonished that it obviously can (and has) happened.

I can't understand how it can be thought acceptable (and workable).

At the very last, if someone applies for LPoA and one is already in place, I would have thought that the OPG would check with the donor and alert the original attorney.

If the donor is sufficiently confused that they don't remember they have already signed a very important document giving powers to one attorney, and later sign another important document giving powers to a different attorney, maybe someone should be responsible for saying 'Hang on. What's going on here? Is this person being coerced? Does this person actually have mental capacity to do this?'

What I thought was a way to safeguard people's health and wealth once they lose mental capacity appears to be open to abuse.

naedanger

Pollycat said:

Sea_Shell said:

It does make you wonder if OP's case is a one off in isolation though, if the staff don't have that OMG!!! moment when it's been pointed out to them that more than one valid PoA has been registered, for the same part (ie financial), without the old one being formally withdrawn.

As Pollycat says, this could cause huge problems if each separate attorney has different view as to what is best, and they are all pulling in different directions!!!

What if you were completely unaware that another PoA was in force, and you go to the bank to make a transfer, and all the money has already gone!!   It's crazy.

For all we know, during these last 18 months, the OPG could just be waving all applications through on a "fast-track" , just to get them done, and cleared off their desks (or kitchen table!!)

The question is, is it rife, or a one-off?

You mentioned this in response to one of my earlier posts and I (naively) thought it couldn't happen.

I was wrong.

I'm astonished that it obviously can (and has) happened.

I can't understand how it can be thought acceptable (and workable).

At the very last, if someone applies for LPoA and one is already in place, I would have thought that the OPG would check with the donor and alert the original attorney.

If the donor is sufficiently confused that they don't remember they have already signed a very important document giving powers to one attorney, and later sign another important document giving powers to a different attorney, maybe someone should be responsible for saying 'Hang on. What's going on here? Is this person being coerced? Does this person actually have mental capacity to do this?'

What I thought was a way to safeguard people's health and wealth once they lose mental capacity appears to be open to abuse.

The key safeguard is the donor themselves. They need to have mental capacity to write a POA document (and an independent person needs to sign to say the donor has mental capacity and are not being forced to sign).

It is essential the donor only appoints people they trust to be their attorney(s). Whether the attorneys can act independently or need to act jointly have pros and cons but the donor gets to choose the arrangement that they think will work best for them. Obviously they should be satisfied their attorneys will cooperate to either work independently or jointly as required.

Is the system open to abuse? Yes, but so is every process. But at least the POA process has an office that will investigate concerns raised that an attorney is not acting in their donor’s best interests. 

Perhaps it would be good if every time someone drafts a new POA (which requires an independent certificate provider) there be an investigation to see whether the donor was being coerced. But the reality is there will not be sufficient resources to do that. Instead investigative resources will be concentrated on investigating actual instances of alleged abuse.

Sea_Shell

But this isn't specifically an issue of capacity or coercion.

A donor may just be naïve of the rules and think they can just do a new document granting poa to person B, whilst an original poa already gives person A control.

This is about checks carried out by the OPG to ensure that there's only ever one poa in place at a time, not multiple ones!!

naedanger

What is the problem with more than one POA document if that is what the donor wants?

 (I am reasonably sure my mother had two active POA documents at one point. This was in Scotland so a different system.)

Pollycat

naedanger said:

What is the problem with more than one POA document if that is what the donor wants?

 (I am reasonably sure my mother had two active POA documents at one point. This was in Scotland so a different system.)

This maybe...

Pollycat said:

If one attorney believes 'x' action is best for the donor and the other attorneys believe 'y' action is best, who gets the final say?

and this:

Sea_Shell said:

What if you were completely unaware that another PoA was in force, and you go to the bank to make a transfer, and all the money has already gone!!   It's crazy.

I've already posted the wording and link to what GOV.UK say about wanting an additional attorney.

And it isn't to simply do a completely new LPoA without cancelling the original one.

And as for this specific case, the OP believes her siblings have acted improperly.

naedanger

Pollycat said:

naedanger said:

What is the problem with more than one POA document if that is what the donor wants?

 (I am reasonably sure my mother had two active POA documents at one point. This was in Scotland so a different system.)

This maybe...

Pollycat said:

If one attorney believes 'x' action is best for the donor and the other attorneys believe 'y' action is best, who gets the final say?

and this:

Sea_Shell said:

What if you were completely unaware that another PoA was in force, and you go to the bank to make a transfer, and all the money has already gone!!   It's crazy.

I've already posted the wording and link to what GOV.UK say about wanting an additional attorney.

And it isn't to simply do a completely new LPoA without cancelling the original one.

And as for this specific case, the OP believes her siblings have acted improperly.

If under one POA document you appoint two attorneys and allow them to act independently (which is very common and has signficant advantages) then the first issue you have quoted can arise. It is not unique to, or caused by, having two POA documents.

Again if you appoint two attorneys and allow them to act independently then the first one to the bank could under their POA powers remove all the money to their own account. It is not unique to, or caused by, having two POA documents.

One attorney believes another has acted improperly can again arise under one POA document. The concerns should be raised with the OPG, assuming the donor is still alive.

I believe it is permissible to have two POA documents in force at the same time covering the same powers. The attorneys on each document have the powers set out in that document. It is because you are permitted to have more than one POA document that you need to revoke one if you no longer wish it to apply. (I am not saying I know this for a fact, but I think this is the position and I don't see any significant problem with it.)