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    • MrBo
    • By MrBo 6th Jul 17, 10:12 AM
    • 13Posts
    • 1Thanks
    power of attorney - Decisions
    • #1
    • 6th Jul 17, 10:12 AM
    power of attorney - Decisions 6th Jul 17 at 10:12 AM
    Hello all,

    I have a problem with a fellow PoA that would like to use are mothers money for something (Sorry I can not go into much detail). To do this he needs to ask for are mothers decision to do this. The problem is that she is being pushed into making this decision and she has said to me on four occasions that she does not want to do this but she just feels powerless to do anything else.

    I have tried talking to my fellow PoA but they are still going to do it.

    What can I do?
    Last edited by MrBo; 06-07-2017 at 11:17 AM.
Page 2
    • Primrose
    • By Primrose 7th Jul 17, 4:04 PM
    • 7,957 Posts
    • 28,036 Thanks
    I think attorneys are entitled to reclaim reasonable legitimate expenses but they have to be whiter than white in the way they handle an individual's affairs so in the interests of scruples it's better that any "treats" previously enjoyed as a gift from from the grantee cease once the P of A kicks into action due to loss of mental capacity.

    It wouldn't apply simoly because a P of A" is REGISTERED because of course this can be done years in advance of somebody losing mental capacity (if indeed they ever do) simply as a precaution against it being needed sometime in the future. Whilst a donor still has mental capacity they are totally free to do what they like with their own assets in terms of giving gifts , treats etc.

    If there is any doubt about somebody's mental capacity the correct thing is to is for the donor to be assessed by their GP or other suitably qualified physician.

    Indeed it's advisable for a P of A document to be registered as soon as it's been prepared so that the Office of Public Guardian can check that it has been drawn up correctly, signed and dated in the right order and is legally fit for purposes. There no point in preparing a document and sticking it in a filing cabinet for years only to find that years later the donor has lost mental capacity and the document has been incorrectly drawn up and is therefore useless.

    So yes, the donor can have their P of A drawn up and registered and go on giving gifts etc as long as they retain mental capacity. The donor can also withdraw a P of A at any time while mentally competent if they decide they no longer wish a person to act for them.
    Last edited by Primrose; 07-07-2017 at 4:07 PM.
    • Sea Shell
    • By Sea Shell 7th Jul 17, 5:34 PM
    • 671 Posts
    • 883 Thanks
    Sea Shell
    What if they lose physical capacity, to make any purchase or bank transfer themselves, but still want to make a gift to the PoA. How should that be documented?
    " That pound I saved yesterday, is a pound I don't have to earn tomorrow "
    • Primrose
    • By Primrose 7th Jul 17, 6:11 PM
    • 7,957 Posts
    • 28,036 Thanks
    Loss of physical capacity isn't the same as loss of mental capacity. If the person who has granted the power of attorney to an individual is physically disabled and can't get to a bank for example to withdraw money the appointed attorney may do so with the donor!s knowledge and agreement. The attorney is effectively acting as an enabler or facilitator as I see it but they must act totally in the donor's interests.

    But if the donor then became mentally incapacitated as well, the donor then has an obligation to take over the control and running of that person's financial affairs. If you have a specific situation in mind, you should seek clarification from a solicitor skilled in dealing with family affairs. I imagine in the preference section you could add a clause along the lines "My attorneys make make gifts not exceeding £xxx with my agreement if I still have mental capacity" but you need to check this out with a solicitor. There is always the capacity for somebody to abuse their powers which is why it is so important to have total trust in the people you appoint as attorneys and also to decide whether all decisions must be made jointly if you have more than one attorney, or jointly and severally in specific situations where something important like the sale of a property is likely to be involved.

    However if all decisions are made jointly even simple actions like writing out a cheque or withdrawing money on behalf of the donor will have to be signed off by all attorneys which is not practical if one of the attorneys lives some distance away. Imagine having to get all attorneys to sign cheques for care home fees every months or even for a donor!s dental treatment session.
    Last edited by Primrose; 07-07-2017 at 6:15 PM.
    • troubleinparadise
    • By troubleinparadise 7th Jul 17, 7:35 PM
    • 1,012 Posts
    • 1,697 Thanks
    Question? If a donor has usually given a future attorney a thankyou gift in the past for help with oddjobs etc. either cash or say a meal out, would this have to stop under a registered PoA?
    Originally posted by Sea Shell
    I suggest you contact the Office of the Public Guardian to find out what their official stance is on this.

    That way you will know exactly what you can or can't do, and how to record it.
    • Blue Max
    • By Blue Max 13th Jul 17, 6:39 PM
    • 5 Posts
    • 0 Thanks
    Blue Max
    I have POA and can just imagine the general upset if I didn't ensure her children/grandchildren/children in law received gifts, to the usual value, at Christmas and birthdays. There are lots of areas that are grey though. For example what if another grandchild is born or there is a divorce/remarriage? The important things with POA are that the Attorney follows the donor's wishes and needs and that their actions are whiter than white.
    • badmemory
    • By badmemory 13th Jul 17, 7:34 PM
    • 1,542 Posts
    • 1,976 Thanks
    Surely a POA is about allowing the donor to continue their financial life as if they are still in full control. This would mean if family were accustomed to receiving birthday and Christmas presents of £100 each that should continue even for a newborn they can no longer remember being born. What shouldn't happen is the attorney deciding I don't think £100 is enough & changing it to £1000.

    Perhaps I should add here that after the first Christmas we actually stopped having presents because my mother had always been extremely good at selecting them and having money just didn't seem right.
    • Malthusian
    • By Malthusian 14th Jul 17, 10:22 AM
    • 3,909 Posts
    • 6,107 Thanks
    There are lots of areas that are grey though. For example what if another grandchild is born or there is a divorce/remarriage?
    Originally posted by Blue Max
    In theory this should be straightforward - if she was accustomed to giving all her grandchildren presents on customary occasions then that will apply to the new grandchild as well. Only complication is whether the newborn should be receiving the same amount as her existing grandchildren who might all be teenagers / adults - but it should not be rocket science to work out a reasonable amount. Asking the other family members what the donor used to do would be a good starting point.

    Divorce / remarriage should similarly be straightforward. Did the ex receive presents purely because they were the donor's in-law or did the donor care for the ex personally? Was the divorce amicable and is the ex still a family friend or a pariah? Again, if the attorney doesn't know the other family members should be able to help them out.

    You can always check with the Court of Protection if you are unsure but this doesn't sound to me like a scenario that should require it, unless it is a lot more complicated than that.
    • getmore4less
    • By getmore4less 17th Jul 17, 5:37 AM
    • 31,878 Posts
    • 19,103 Thanks
    a useful read to undestand the role of the OPG
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