Power of Attorney question.

Pollycat

naedanger said:

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.)

I do appreciate the bit in bold.

But that arrangement is part of the same process and I would expect the donor to consider how they wish their attorney(s) to act on their behalf and give all named attorneys either joint or joint & severally authorisation on each aspect of the LPoA.

Setting up one LPoA and then setting up another with totally different attorneys isn't the same thing. IMHO.

naedanger

Pollycat said:

naedanger said:

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.)

I do appreciate the bit in bold.

But that arrangement is part of the same process and I would expect the donor to consider how they wish their attorney(s) to act on their behalf and give all named attorneys either joint or joint & severally authorisation on each aspect of the LPoA.

Setting up one LPoA and then setting up another with totally different attorneys isn't the same thing. IMHO.

The donor has to have mental capacity to write a POA. So they should be aware of what existing POAs they already have in place, and draft any subsequent one accordingly. For the vast majority of people I expect the easiest thing is to start afresh and revoke the earlier one. But if some people with complicated affairs wish to cover their situation with two concurrent POAs then I think (possibly wrongly) that this is permissible (even if not advisable for most people).

I think the currrent system works on the basis that the donor should also be best placed to decide what is best for them e.g. who they can trust to act as their attorneys and whether they should act separately or jointly. Is there a risk the donor might not have full capacity? Yes and that is the case whether or not they have an existing POA. So there are some safeguards in place to try and prevent donors being coerced. But if the checks are too onerous it will put up the cost and put some people off writing a POA altogether. Then there needs to be someone to investigate any actual allegations of attorneys misusing their powers and there  is - the OPG.

But the donors need to understand just how much trust they are placing in their attorneys and choose them and their powers and controls accordingly. If they get it wrong there might be no-one to fix it.

Pollycat

naedanger said:

The donor has to have mental capacity to write a POA. So they should be aware of what existing POAs they already have in place, and draft any subsequent one accordingly. For the vast majority of people I expect the easiest thing is to start afresh and revoke the earlier one. But if some people with complicated affairs wish to cover their situation with two concurrent POAs then I think (possibly wrongly) that this is permissible (even if not advisable for most people).

I think the currrent system works on the basis that the donor should also be best placed to decide what is best for them e.g. who they can trust to act as their attorneys and whether they should act separately or jointly. Is there a risk the donor might not have full capacity? Yes and that is the case whether or not they have an existing POA. So there are some safeguards in place to try and prevent donors being coerced. But if the checks are too onerous it will put up the cost and put some people off writing a POA altogether. Then there needs to be someone to investigate any actual allegations of attorneys misusing their powers and there  is - the OPG.

But the donors need to understand just how much trust they are placing in their attorneys and choose them and their powers and controls accordingly. If they get it wrong there might be no-one to fix it.

I agree that the donor should have mental capacity - which is not the same as saying 'has to have'.

It's not clear from the OP's posts if he (the OP) believes his Mum didn't have mental capacity at the time of the 2nd LPoA naming the other 3 siblings as attorneys.

There is something in the original post about the other 3 siblings taking her to the bank when she didn't have mental capacity - the OP says this happened in Feb 2020 a few weeks after the 3 siblings 'obtained LPoA'.

The Mum was diagnosed with dementia 2019.

So it sounds like - at least to me - that the OP's Mum possibly didn't have mental capacity at the time of the 2nd LPoA.

If the Mum wanted all 4 children to be attorneys for her LPoAs, why didn't she make them all attorneys at the time the original LPoA was completed?

naedanger

Pollycat said:

naedanger said:

The donor has to have mental capacity to write a POA. So they should be aware of what existing POAs they already have in place, and draft any subsequent one accordingly. For the vast majority of people I expect the easiest thing is to start afresh and revoke the earlier one. But if some people with complicated affairs wish to cover their situation with two concurrent POAs then I think (possibly wrongly) that this is permissible (even if not advisable for most people).

I think the currrent system works on the basis that the donor should also be best placed to decide what is best for them e.g. who they can trust to act as their attorneys and whether they should act separately or jointly. Is there a risk the donor might not have full capacity? Yes and that is the case whether or not they have an existing POA. So there are some safeguards in place to try and prevent donors being coerced. But if the checks are too onerous it will put up the cost and put some people off writing a POA altogether. Then there needs to be someone to investigate any actual allegations of attorneys misusing their powers and there  is - the OPG.

But the donors need to understand just how much trust they are placing in their attorneys and choose them and their powers and controls accordingly. If they get it wrong there might be no-one to fix it.

I agree that the donor should have mental capacity - which is not the same as saying 'has to have'.

It's not clear from the OP's posts if he (the OP) believes his Mum didn't have mental capacity at the time of the 2nd LPoA naming the other 3 siblings as attorneys.

There is something in the original post about the other 3 siblings taking her to the bank when she didn't have mental capacity - the OP says this happened in Feb 2020 a few weeks after the 3 siblings 'obtained LPoA'.

The Mum was diagnosed with dementia 2019.

So it sounds like - at least to me - that the OP's Mum possibly didn't have mental capacity at the time of the 2nd LPoA.

If the Mum wanted all 4 children to be attorneys for her LPoAs, why didn't she make them all attorneys at the time the original LPoA was completed?

What I am saying is I think the fact there is a second POA won't be the problem in itself. 

But I completely agree that if the mother did not have the mental capacity or was coerced then the second POA should be invalidated. (And that would be the position even if there wasn't a prior POA.)

I expect it won't be easy invalidating a POA, just as it isn't easy invalidating a will. But there will be mechanisms for removing valid attorneys if there is evidence they are not acting in the donor's interests, and I think the OPG have a role in ensuring allegations of abuse are investigated. So even if the POA is deemed valid, it should not prevent the OP from stopping any attorney from abusing their POA powers.

(Of course the best scenario is it turns out this second POA doesn't exist.)

mrschaucer

naedanger said:

What I am saying is I think the fact there is a second POA won't be the problem in itself. 

I doubt if financial institutions etc would agree.  I'm prepared to bet that not many staff will have come across the concept of having to register several seemingly valid LPAs on the same client at the same time, especially when the gov guidance seems to imply that you should write to the OPG to strike out an existing LPA if you want something different.

naedanger

mrschaucer said:

naedanger said:

What I am saying is I think the fact there is a second POA won't be the problem in itself. 

I doubt if financial institutions etc would agree.  I'm prepared to bet that not many staff will have come across the concept of having to register several seemingly valid LPAs on the same client at the same time, especially when the gov guidance seems to imply that you should write to the OPG to strike out an existing LPA if you want something different.

I meant won't be a problem to the POA's legal validity in itself.

Having had problems with the simplest POA document I am sure you are correct to say the banks will have administration problems. But the banks and financial institutions should comply with the law as it is written just like any other business or person.

Pollycat

naedanger said:

mrschaucer said:

naedanger said:

What I am saying is I think the fact there is a second POA won't be the problem in itself. 

I doubt if financial institutions etc would agree.  I'm prepared to bet that not many staff will have come across the concept of having to register several seemingly valid LPAs on the same client at the same time, especially when the gov guidance seems to imply that you should write to the OPG to strike out an existing LPA if you want something different.

I meant a legal problem.

Having had problems with the simplest POA document I am sure you are correct. But the banks and financial institutions should comply with the law as it is written just like any other business or person.

OK.
So - from a legal perspective - which PoA should take precedence as far as banks and financial institutions are concerned?

naedanger

Pollycat said:

naedanger said:

mrschaucer said:

naedanger said:

What I am saying is I think the fact there is a second POA won't be the problem in itself. 

I doubt if financial institutions etc would agree.  I'm prepared to bet that not many staff will have come across the concept of having to register several seemingly valid LPAs on the same client at the same time, especially when the gov guidance seems to imply that you should write to the OPG to strike out an existing LPA if you want something different.

I meant a legal problem.

Having had problems with the simplest POA document I am sure you are correct. But the banks and financial institutions should comply with the law as it is written just like any other business or person.

OK.
So - from a legal perspective - which PoA should take precedence as far as banks and financial institutions are concerned?

They are both valid.

So if someone goes in to a bank with a POA (whether it was written first or second) that gives them powers over the donor's bank account then the bank should comply and give the attorney that authority. If someone else comes in with a different POA that gives that person authority then the bank should again comply. The same thing would happen if both attorneys were named on the one POA and given authority to act independently.

Sea_Shell

But surely the bank should know that at any one time they can only have ONE financial PoA registered with them.

If someone rocks up with another one, surely the bank isn't able to just add this to their records.   Some people have enough trouble registering one, never the less two or three!!!

Maybe the law on this isn't as clear as was initially thought?

Do the documents, once granted, get given a code or reference number?

74jax

naedanger said:

Pollycat said:

naedanger said:

mrschaucer said:

naedanger said:

What I am saying is I think the fact there is a second POA won't be the problem in itself. 

I doubt if financial institutions etc would agree.  I'm prepared to bet that not many staff will have come across the concept of having to register several seemingly valid LPAs on the same client at the same time, especially when the gov guidance seems to imply that you should write to the OPG to strike out an existing LPA if you want something different.

I meant a legal problem.

Having had problems with the simplest POA document I am sure you are correct. But the banks and financial institutions should comply with the law as it is written just like any other business or person.

OK.
So - from a legal perspective - which PoA should take precedence as far as banks and financial institutions are concerned?

They are both valid.

So if someone goes in to a bank with a POA (whether it was written first or second) that gives them powers over the donor's bank account then the bank should comply and give the attorney that authority. If someone else comes in with a different POA that gives that person authority then the bank should again comply. The same thing would happen if both attorneys were named on the one POA and given authority to act independently.

From working several years in the Halifax as a banking advisor, you can't just walk in with a PoA document.
You might have the document (waiting for the time to use it), but at the point you want it to be enforced you need to activate it first. You then bring it in to the bank. I would register it against all accounts, and then it is in force.
I have only ever had 1 person being in a PoA in a similar (but different) situation. Where I had an account with PoA registered, someone brought in another. As the account already had 1 against it, I couldn't do anything (it was a different person) and contrary to what they thought, waving the document at me meant nothing 🙈.  
I can't remember how it was sorted but it came out as fraud (the person didn't actually have PoA) - so different to this case.
But if someone brought in a 2nd PoA I 'think' we'd have needed to see the document which dissolved the first, removed that then checked the 2nd was activated. 
There may be systems in place now for this if it is regular, but I'm pleased I wasn't around in banking when this happened.