Power of Attorney financial decisions.

immy1

Myself and spouse set up a joint POA which gives our son control over finances if one partner dies and then the other loses capacity. A few years after taking this out  we visited a solicitor to amend our wills.

At this time we  also discussed the POA and asked the solicitor to explain it in a bit more detail.  She advised  us that even if one partner died  and  the surviving spouse still had mental capacity then that would not stop the son from having joint control over finances. This is not what we intended as we wanted the surviving spouse to have sole control to make financial decisions unless they lost capacity.

Is this a flaw that  we should be considered before taking out the POA?  

FlorayG

You don't give POA to someone unless you trust them, so there should not be a problem, your son should only take responsibility for anything the surviving partner asks him to. I had POA for my mother, she had capacity until the moment she died but being by then 94 she just didn't want to deal with money and bills and stuff so she asked me to do it
The POA is required to do what the person giving the POA wants them to, not what the POA wants to

Keep_pedalling

Assuming we are talking about an LPA rather than the older EPA then you have a number of ways the attorneys can act it can either be jointly (not normally recommended) jointly and severally or you can appoint one primary attorney with a back up attorney.

If you have made your spouse and child joint attorneys to act jointly and severally then either of them can act for you if you lose capacity. This is how we have set ours up but in reality our children would only act if the surviving spouse lost capacity or was struggling and asked them to step in to help (something that would not be possible if you had a back-up attorney) If you trust your son to stay in the background while the spouse acts as attorney I don’t really see what the problem is.

elsien

I can’t see how your spouse dying or otherwise would make any difference because any LPA is just for you. 

If your spouse dies and your son becomes replacement attorney in his place, the same rules still apply. If you have set it up so that it only kicks in when you lose capacity, then your son will step in at that point. Any power-of-attorney your spouse has set up for himself ends on his death. 

If you set it up so your son can act for you while you have capacity, he can only take over the things that you want him to with your knowledge and consent. And you can revoke it at any point up until you lose capacity if you are unhappy with how he is supporting you. 

It is not carte blanche  for anyone to take over your finances while you are still able and wish to do so yourself. 

Was the solicitor trying to sell you a new power of attorney by any chance? Either that or you possibly misunderstood? Because the information as you have presented it is just wrong. 

immy1

 Actually elsien we saw a trainee solicitor so probably received the incorrect information. Thank you all for clarifying