POA - Some advice - but also - who decides?

EnglishMohican

I have just started to create a POA on the government website. Once we know what we want to say, my wife will raise a "mirror" version of mine. There will be both a financial and a health POA for both of us eventually.
So - questions.
1. I had assumed that my wife would be my first attorney and my three children (all adult) would be the replacement attorneys. However, I saw a post on here advocating not having the wife as the first attorney but going straight to the children. I would like some more views on this and reasons for and against.
 2. My parents-in-law both suffered dementia (or similar) and before they died, went through a stage where they could not be trusted to take a sensible decision but still had very strong opinions on some decisions, right or wrong. If I lose capacity slowly (or on and off) as they did, we need to get to a point where my wife manages everything and the banks etc ignore me - but not too soon! Similarly, we may get a situation where the children have to take full control and my wishes are ignored by the banks etc. How is this point determined and what is the mechanism for telling the banks to ignore me. Who decides that I have gone far enough down the slope not to be capable?
3. I am thinking of writing instructions into the POA so that any child can act alone for smaller amounts of money (<£1000) but for larger amounts, all three have to agree (with an additional clause in case one does not want, or is incapable of being an attorney). I will add a clause allowing a single child to move money from my savings account to my bank account whatever the amount. I do trust my children now - but if this is all happening in 20 years time, who knows what pressures they will be under - which is why I want them all to be involved in major decisions but not burdened with every small payment. Advice, comments - is this common enough for there to be recognised phrasing that I should use?
Thank you.

Keep_pedalling

Our. LPAs are simple, each have 3 attorneys, each other and our children. All three can act separately and severally.

Adding a clause that makes your attorneys act jointly can be problematical. If one of your children becomes unable to act, then the others can’t make the decisions as the LPA effectively fails. A similar problem occurs if one for whatever reason won’t agree of refuses to take part in any decisions.

pphillips

Keep_pedalling said:

Our. LPAs are simple, each have 3 attorneys, each other and our children. All three can act separately and severally.

Adding a clause that makes your attorneys act jointly can be problematical. If one of your children becomes unable to act, then the others can’t make the decisions as the LPA effectively fails. A similar problem occurs if one for whatever reason won’t agree of refuses to take part in any decisions.

A simple and flexible LPA has its advantages. 

Following a court of protection judgment a while back, it's now possible to add a clause reappointing joint attorneys if one of them is unable or unwilling to act. However, as you say, this won't stop attorneys from falling out with each other and refusing to work together.

Savvy_Sue

Our LPAs appoint each other, with the boys only taking over once the 'other' is incapable. No idea how they work out when that is: it's perfectly possible to make foolish decisions while retaining capacity, or to retain strong opinions after losing it.

Our boys can act alone until it's time to sell the house. I thought they should agree on that one. And as there's 3 of them, it shouldn't get to stalemate.

It's anybody's guess which of them will be able to act should the need arise. At the time, 2 were in the UK and one a global nomad. He's now semi-settling down until international travel becomes a safe possibility, but one of the others has since moved abroad. Flexibility is key to us.

 

74jax

EnglishMohican said:

 Similarly, we may get a situation where the children have to take full control and my wishes are ignored by the banks etc. How is this point determined and what is the mechanism for telling the banks to ignore me. Who decides that I have gone far enough down the slope not to be capable?

Thank you.

I'm not sure if things have changed, this was 5ish years ago.
My brother and I had poa for both parents, set up many years earlier. Dad then had terminal cancer and at one of his appointments we were told if he had set up poa then now was the time to activate it - we didn't actually know that's what we had to do, we thought because we 'had' it that was all we needed.  We activated it at all banks, doctors, household bills etc. My brother just left it all to me really (we could act independently). 
It was all very easy until his final days when I had to make a decision against what dad was saying. My voice / decision overrode what dad was saying. It haunts me to this dad was saying something I went against his, but that is why you give poa, for the person you trust explicitly, to act when needed. My brother, when I told him, backed me 100% but at the time it was my decision, me against dad.
The people you give poa need to understand your wishes completely and you must have a trust there that is unquestionabe, its only because of the trust we had, that I understand why I did what I did, but I still know I took dad's 'say' away from him, and that is not easy to live with. 

JGB1955

74jax said:

The people you give poa need to understand your wishes completely and you must have a trust there that is unquestionabe, its only because of the trust we had, that I understand why I did what I did, but I still know I took dad's 'say' away from him, and that is not easy to live with. 

Ultimately, you did exactly what your father had asked when he signed the original POA. 
My father had an Enduring Power of Attorney.  Dementia/Parkinson's came along and took away all of his decision making.  At one point he refused to believe that I could 'do what I wanted' in his name. He still wanted to be in control.  The relief to know that I could register the EPA, which I was already using with his (occasional) consent, made things SO much easier, particularly later, when dealing with his estate as executor.  
We have LPAs - spouse and 2 children, acting jointly and severally.  I have to trust them... otherwise I've promised to come back and haunt them!

bouicca21

I was going to make my children act jointly but then I realised how problematic this might be - what if one was sick, on holiday, emigrated, incapacitated?  So my final decision was not to make them act jointly.  I suspect bossy boots will be in charge, anyway!

TBH it’s a matter of trust.  I trust my children to do what’s right.  And I trust them not to fall out.

theoretica

Remember that with inflation a fixed sum mentioned now eg £1000 may be effectively worth far less in future.

Keep_pedalling

Savvy_Sue said:

Our LPAs appoint each other, with the boys only taking over once the 'other' is incapable. No idea how they work out when that is: it's perfectly possible to make foolish decisions while retaining capacity, or to retain strong opinions after losing it.

Our boys can act alone until it's time to sell the house. I thought they should agree on that one. And as there's 3 of them, it shouldn't get to stalemate.


 

I am pretty sure that having to act jointly mean they agree unanimously not by majority rule.

Savvy_Sue

Keep_pedalling said:

Savvy_Sue said:

Our LPAs appoint each other, with the boys only taking over once the 'other' is incapable. No idea how they work out when that is: it's perfectly possible to make foolish decisions while retaining capacity, or to retain strong opinions after losing it.

Our boys can act alone until it's time to sell the house. I thought they should agree on that one. And as there's 3 of them, it shouldn't get to stalemate.

I am pretty sure that having to act jointly mean they agree unanimously not by majority rule.

Yes, you are probably right, but they are sensible lads, so if two of them think X is the thing to do, the third will have the wit not to stand in their way, even if he disagrees ... 

Not so easy to do that if you have an even number ...

Malthusian

Savvy_Sue said:

Yes, you are probably right, but they are sensible lads, so if two of them think X is the thing to do, the third will have the wit not to stand in their way, even if he disagrees ...

If you want your attorneys to be able to get things done that are in your interests even if one of them disagrees, then why not appoint them joint and several?

Allowing your attorneys to act jointly only, which is almost always a terrible idea, only makes sense if you want a dissenting attorney to be able to stand in the way of the others.

The only thing the "joint only" option achieves in the end is to allow the dissenting brother to drag it to court, after which the courts will decide which of them is right about what is in your interests.

If you don't think that's ever going to happen because your attorneys are sensible, there is no reason not to appoint them joint and several, except to waste their time duplicating paperwork.