Power Of Attorney

[Kiki-frog]

My lovely mum-in-law is in the early stages of dementia, and my OH's younger brother apparently has taken power of attorney over her affairs, but without telling his two older brothers. He lives geographically the closest to her, and in all fairness he has done the most in terms of sorting out carers, social services, etc., and we're very grateful to him for doing that.

However, the Power of Attorney thing was done without consulting either of his brothers, and when I was in that situation myself with my mum the solicitor was insistent that other siblings should be consulted, and talking to other people in the same situation, it appears that it is generally the case that PoA should not be granted without consent from the closest family members.

We're just a little bit concerned that my mum-in-law is being told what she can and can not spend her money on, and younger bro-in-law is getting a bit too controlling. Nothing sinister, we hope, but we're starting to wonder...

So my question is, to what extent do immediate family members need to be consulted when requesting Power of Attorney?

Can anyone advise, please?

[hc4361]

I don't understand that, emmie. The donor has to be of sound mind, able to make his or her own decisions, to grant PoA.

[emmie]

perhaps she did, but her dementia was very bad. It's been a while, but sure that we just agreed that my brother should take over.

[woofgang]

emmie, with respect, how do you know what is usual? Provided the donor has capacity, its not up to anyone else what they do....even if the donor doesn't have full capacity, they may be emphatic that they don't want other family members involved and if the certificate provider is happy with that and the acceptor of the POA is happy with that then the matter ends there. If the donor does not have sufficient capacity to make their own POA than a different process needs to be followed

[woofgang]

you can't "just agree" If your brother had access to her funds and so on then he may just have taken on that role but even before the LPA, when such things were EPA's and before that, there was some kind of confirmation that the donor was capable of choosing or agreeing to the arrangement and an assessment and control process if they were not.

[emmie]

i really can't remember, its been a while

[hc4361]

If the donor doesn't have mental capacity then an application must be made to the Court of Protection to appoint a Deputy (in England, Guardian in Scotland, Controller in NI) and it takes months. It gives the same powers and authority as an LPA but is a lot more complicated to arrange and is a lot more expensive.

[emmie]

will ask when i next speak with him, enough said.

[bednobs]

when my mil was starting dementia and finding sorting out finances tricky she gave my husband her log on details for internet banking and he assumed the role, without an official POA. A few years ago i think you could actually go into the bank and give someone else limited authority

[woofgang]

bedknobs, you still can if you have the capacity to do so....set up joint accounts at the bank and so on and joint access to utilities accounts etcetera. My husband and I did it because he went abroad a lot for work and I needed to be able to deal with the household stuff on a daily basis. It was funny because the mortgage was in joint names and when my husband went in to pay it off when he retired, we had tiny puppies so I stayed home with the dogs and he went to the bank alone. The manager said that properly I should have been there too as it was a joint mortgage and my husband said "oh I don't think she will mind!"

[Kiki-frog]

Thanks for all the answers. Interesting. To the person who asked why I found this disturbing (sorry can't remember who that was now), it's disturbing that by law a vulnerable individual can essentially be bullied into granting PoA.

[woofgang]

hence the need for a certificate giver. There is also a process to challenge a POA if you think dirty deeds are afoot. https://www.gov.uk/report-concern-about-attorney-deputy-guardian

[pixie374]

Kiki, I don't think it is disturbing at all, that people are allowed to make their own decisions, without getting "approval". What would happen if a couple of family members, say, don't like the decision? Whose choice should it be?
Also, if family members are all allowed to join in a decision (and which ones?) Surely, that makes the risk of bullying much greater?
If I was in that position to choose somebody... i would personally go with the person who knew me best and who I trusted most. It is not supposed to be somebody who "acts in your best interests" literally... but someone who can carry out the decisions you would make yourself.
It shouldn't matter to anybody else- as long as she is happy with it.

[Barmaid]

If MIL had capacity to give an LPA to the son and decided no one is to be notified, that is fine.

What is more concerning is that she is "being told what she can and cannot spend her money on". If she has capacity, frankly she can do what she likes. If she wants to go and buy a porsche and live it up at the Ritz, if she has the capacity to do so that is fine! If he disagrees, she can choose to revoke the LPA (if she has capacity).

The point of an LPA is that decisions must only be made in the donor's best interests. However, insofar as possible the donor should be consulted and encouraged to make the decision herself. It is not for the Attorney to "control" the donor. There is a fine line between acting in her best interests, helping her with her finances and removing her personal autonomy.

If she is in the early stages of dementia, I imagine she has the ability to make many decision but probably struggles with day to day banking and stuff - particularly now so much is done online.

Eg, my mother and I are attorneys for my grandmother. Mum deals with her every day banking and regular payments. However, Nanna has capacity in most areas. So if Nanna says "I want to take the Smith family out for lunch they were good to me and Grandad", Mum and i say, "excellent, we'll make that happen, where and when would you like to go and we'll draw the cash out for you". If she says "I really like that xxxx mattress, I want one", we'll talk to her about it and make sure it's right and then we'll order it. It's her money, it's her decision. She has more blummin cardigans than you can shake a stick at but she constantly wants new ones. Fine. Her decision. However, if she said "a young man called me from xxx company and he says if I invest £5000, when I die you'll get £50000 and I'd like to do it. He was such a nice young man and said Grandad would want it", we'd be saying "Lets investigate that and talk about it a little"..............

The role of an attorney is to facilitate - not control. Accepted someone with no capacity needs someone to control but MIL should be allowed to partake in decisions for as long as she is able.

[Kiki-frog]

Thanks, woofgang, that link is very useful - we'll look in to that. And there's a phone number, so with a bit of luck I'll get to speak to a human being! :-)

Barmaid, you hit the nail on the head about being able to make basic decisions, but getting confused with the modern financial world. That's exactly the case.

I think I'm probably not explaining quite why this is so disturbing - my MiL is being told what she can and can not spend her own money on. She's allowed to buy clothes, for example, but he has to decide whether the garment is suitable or not! She's taken to getting out her daily allocated amount of cash and hiding it without my bro-in-law's knowledge so that she has emergency funds if needed.

She recently used her secret stash to buy a pram for her grandson and his partner's baby - brother-in-law went ballistic when he found out, shouted at her, reduced her to tears and said that it was their own responsibility to buy for their baby and not hers. This is just one example of his strange behaviour - there are many, many more.

I fully take the point that in legal terms she "gave" PoA; I, however, would contest that she was bullied in to it. On more than one occasion I have spoken to her on the phone and she has been tearful and terrified because she has done something to upset bro-in-law.

That's why it is disturbing. But thanks, everyone, for your responses. All very much appreciated