LPA issues with a financially illiterate Attorney!

[nools]

Hi

I've just got off the phone to my Dad and am very frustrated- on here in the hope that one of you lovely folk can offer some advice!

I'll be as brief as possible; myself, my Dad and my brother have recently been appointed Attorneys for my Mum- jointly and severally. My Dad has just made another bad financial decision (eg to fork out four grand on new windows that they do not need- he has basically been taken in by a double glazing salesman! He says they have the money so they might as well use it!?)

Can myself and my brother stop him from frittering away money that could be coming from Mum's account? My brother has already had to intervene on an unnecessary 'roof clean' he almost paid a few thousand for! Any feedback appreciated

 

[love.dad.but..]

Someone will be along who will be more knowledgable. I am poa for my dad but his matters are very straightforward and fortunately my sister who is joint and severall with me sings from the same hymn sheet on everything. There currently seems to be quite a few poa problems on TP which is very sad. I would think you would have to be certain that the money is being taken from her sole ac as perhaps if a joint ac might be more difficult to say he cannot spend the money for the benefit of both of them ie in his opinion needing new windows but I don't know the legal position. Does your dad accept that he financially inept and is that the reason your mum also added your brother and you as joint poa? I would probably phone the OPG for advice if me

 

[nitram]

Joint and several means any of the attorneys can take actions without reference to the other.

It also means that they have joint and several responsibility for any actions taken.

If you and your brother believe that your Dad is not acting in your Mum's best financial interests you should discuss this with him and if not satisfied with the explanation ask the OPG to arbitrate.

 

[Kevinl]

my Dad and my brother have recently been appointed Attorneys for my Mum- jointly and severally.... Can myself and my brother stop him from frittering away money that could be coming from Mum's account?

In short I think not, as it's severally liable. Any one of the POA's can act independently.
Had you gone jointly liable only, then all would have to agree on paying out money.
It's a fine distinction but to be jointly liable you all have had to agree on a course of action, severally liable means only one of you has to sanction the decision no matter how bad that decision turns out to be.
K

 

[nmintueo]

Can myself and my brother stop him from frittering away money that could be coming from Mum's account?
My brother has already had to intervene on an unnecessary 'roof clean' he almost paid a few thousand for!

You successfully prevented him blowing thousands on a needless roof job; perhaps if the three of you get together you can similarly persuade him that they don't need new double glazing.

He says 'we' have the money so why not spend it? The answer to that is, it's not all his money; it's your mother's money too, and he has a legal duty to use it in her best interests. Non-essential double glazing, you can argue, doesn't qualify, and therefore, lead your father to understand that he is failing in his legal duty.

For example: what if your mother needs to go into a care home a year or two from now? Even if new windows were desirable, she would not have gotten value for money out of them in that short period, and she will need the money for care. Her best interests, then, are served by limiting spending to what clearly benefits her, and otherwise conserving funds for future needs.

In theory, as you are attorneys jointly and severally, if your father's spending is demonstrably irresponsible and contrary to your mother's interests, you could seek to have him disqualified as attorney, and carry on as attorneys without him. I suppose you could point that out to him, though that could be a very awkward conversation to have.

Keep your mother's finances separate from your father's, if they aren't already, to ensure clarity on how your mother's money is being used. Maybe you can tie up some money in, say, a three-year ISA to keep it away from the temptation to spend it immediately (though make sure you can cash in early if you really need to). In fact, what's to stop the two of you from moving the money to some other account where your father can't get at it? But that sounds like really desperate measures and open warfare so I hope it doesn't come to that.

 

[Kevinl]

you could seek to have him disqualified as attorney, and carry on as attorneys without him.

Can you? I'm no expert but the link below says that he can if he lack capacity or choses to resign, but not be "forced out" (for want of a better expression).
Then as it's "joint" (as well as severally) liability then the LPA may end.
I think (and that is I THINK) that unless he resigns or lacks capacity then either you have to agree or end the LPA and go to the CoP, but that's just my reading of the situation, it's not something I've ever had to do.
K

https://www.gov.uk/lasting-power-attorney-duties/stop-attorney

 

[nmintueo]

Well, I'm no legal expert either, but the page cited says:

If you’re the only attorney or have to make joint decisions with other attorneys and any of you stop being an attorney when there are no replacements, the lasting power usually ends.

• The father isn't the only attorney - there are the nools & brother.
• And he doesn't have to make joint decisions with them - they are attorneys jointly and severally, not simply jointly.

I say 'in theory' an attorney could be disqualified for breaching the attorney's duties (such as buying double glazing that benefits the attorney rather than the donor). Anecdotally, though, from what people have said on the forums here, it seems to be almost impossible in practice (though nools & brother don't have to say that when trying to persuade their father).

 

[Kevinl]

I say 'in theory' an attorney could be disqualified for breaching the attorney's duties

By who and on what grounds? The father still has capacity and unless that can be proved otherwise or he quits then is it possible to make him stop being an LPA?
My understanding is that if he is severally liable and you can't agree then the LPA ends.
(Hope I'm wrong, but I don't think so).
K

 

[nmintueo]

An attorney can be removed by the Court of Protection on the grounds of breach of duty, abuse of trust, that sort of thing.

It seems doubtful in this instance that the father's conduct is sufficiently egregious to make an ironclad case. And this is a worst-case scenario anyway. But if he were removed, that wouldn't automatically remove the other attorneys, since, appointed jointly and severally, they can act without him.

You may be investigated if there’s a complaint against you. The Office of the Public Guardian can apply to the Court of Protection to have you removed.

Lasting power of attorney: acting as an attorney
https://www.gov.uk/lasting-power-attorney-duties/overview

Example (in this case apparently with a sole attorney):

Uncooperative Attorney Removed by Court
https://www.warners-solicitors.co.uk/article/1321/uncooperative-attorney-removed-court

Also:

Where an Attorney acts in breach of duty, he will be liable for any losses caused to the donee [sic] as a consequence, though the remedies available go beyond mere damages and can also include setting aside a contract entered in breach of trust, restoration of property, and/or an action for an account of any profits made by the Attorney in breach of trust.

breach of attorney duties
https://www.lees.co.uk/professional-negligence/solicitor-negligence/breach-in-attorney-duties/

That might be another line nools & brother could take in discussing this with their father. Yes, I expect nools & brother could be held liable as well as the father if the father were to engage (whether purposely or negligently) in misconduct.

 

[arielsmelody]

It doesn't seem a clear cut situation to me. If the Dad wants to spend his own money on new windows, then he is perfectly entitled to. Although you say that the new windows aren't needed, he's the one living in the house and maybe there are problems with the existing windows that you don't see.

There could be problems with financial assessments down the line if your Mum and your Dad's finances aren't separate, and it makes it very complicated if you are trying to control a joint account. I think you need to sit down with your Dad and work out a sensible split of the money at this point between him and your mum, so that going forward you can help look after the accounts that belong to your mum, and he can have full control over his own accounts without feeling he has to explain himself to you. If he won't do that, I think you need to think about whether it is possible for you to act as an attorney - it puts you in an impossible situation.

 

[nmintueo]

If the Dad wants to spend his own money on new windows, then he is perfectly entitled to.

That's true, except that nools says that he is (or 'could be') spending the donor's money as well: "stop him from frittering away money that could be coming from Mum's account".

 

[2jays]

My 10p

This situation seems to me the opposite view point to another thread on here where the wife has no money as the POA have taken over the fathers money.

It seems to me this is what you are planning to do to the husband.

Or am I missing a point here?


Sent from my iPhone using Talking Point

 

[nmintueo]

This situation seems to me the opposite view point to another thread on here where the wife has no money as the POA have taken over the fathers money.

Yes, this thread: "I'm ready to give up. POA has let me down".

It seems to me this is what you are planning to do to the husband. Or am I missing a point here?

Taking the original poster's question at face value, the problem here is to protect the donor's interests by preventing the father from falling for a hard sell of needless double-glazing and 'frittering away' the donor's money.

That's not the same as expecting the donor to live on nothing (or, no doubt realising they could get into trouble with that, on a miserably small allowance) in order to 'protect their inheritance'. Although that case does illustrate how hard it is to remove attorneys who (taking that poster's question at face value) are pursuing their own selfish interests and not acting in the donor's interests.

 

[nools]

My 10p

This situation seems to me the opposite view point to another thread on here where the wife has no money as the POA have taken over the fathers money.

It seems to me this is what you are planning to do to the husband.

Or am I missing a point here?


Sent from my iPhone using Talking Point

You are missing a point here, yes.

 

[nools]

Taking the original poster's question at face value, the problem here is to protect the donor's interests by preventing the father from falling for a hard sell of needless double-glazing and 'frittering away' the donor's money.

That's not the same as expecting the donor to live on nothing (or, no doubt realising they could get into trouble with that, on a miserably small allowance) in order to 'protect their inheritance'. Although that case does illustrate how hard it is to remove attorneys who (taking that poster's question at face value) are pursuing their own selfish interests and not acting in the donor's interests.

Thank you, I really appreciate your very knowledgable advice. It is exactly as you say, I'm doing this to protect my mother's interests. This is not for my financial gain but I am am thinking in the long term about care because there are issues with that too. I hate that money has become such an issue but for me it is about love, and although she isn't the person she was she is still my mother and my number 1 person.

 

[nools]

It doesn't seem a clear cut situation to me. If the Dad wants to spend his own money on new windows, then he is perfectly entitled to. Although you say that the new windows aren't needed, he's the one living in the house and maybe there are problems with the existing windows that you don't see.

There could be problems with financial assessments down the line if your Mum and your Dad's finances aren't separate, and it makes it very complicated if you are trying to control a joint account. I think you need to sit down with your Dad and work out a sensible split of the money at this point between him and your mum, so that going forward you can help look after the accounts that belong to your mum, and he can have full control over his own accounts without feeling he has to explain himself to you. If he won't do that, I think you need to think about whether it is possible for you to act as an attorney - it puts you in an impossible situation.

Thanks for your advice. You are right- me and my brother are planning to sit my Dad down and 'go through the books' with him next time I'm home. He has since told me he will be paying for the windows from his own account, which if he does is his business and although he is still wasting money it is his money. Mum would have spent her money on jobs on the house that actually do need doing! It's incredibly frustrating as I know my Mum better than my Dad does yet he is her carer. I feel tied as I so want to intervene but I live 2 hours away with 2 small children to care for so I can only do so much when I visit.

 

[nools]

Someone will be along who will be more knowledgable. I am poa for my dad but his matters are very straightforward and fortunately my sister who is joint and severall with me sings from the same hymn sheet on everything. There currently seems to be quite a few poa problems on TP which is very sad. I would think you would have to be certain that the money is being taken from her sole ac as perhaps if a joint ac might be more difficult to say he cannot spend the money for the benefit of both of them ie in his opinion needing new windows but I don't know the legal position. Does your dad accept that he financially inept and is that the reason your mum also added your brother and you as joint poa? I would probably phone the OPG for advice if me

Haha no the problem is that my Dad does not realise that he is financially inept! I was the one who made sure me and my brother went on the POA with him.

 

[nools]

You successfully prevented him blowing thousands on a needless roof job; perhaps if the three of you get together you can similarly persuade him that they don't need new double glazing.

He says 'we' have the money so why not spend it? The answer to that is, it's not all his money; it's your mother's money too, and he has a legal duty to use it in her best interests. Non-essential double glazing, you can argue, doesn't qualify, and therefore, lead your father to understand that he is failing in his legal duty.

For example: what if your mother needs to go into a care home a year or two from now? Even if new windows were desirable, she would not have gotten value for money out of them in that short period, and she will need the money for care. Her best interests, then, are served by limiting spending to what clearly benefits her, and otherwise conserving funds for future needs.

In theory, as you are attorneys jointly and severally, if your father's spending is demonstrably irresponsible and contrary to your mother's interests, you could seek to have him disqualified as attorney, and carry on as attorneys without him. I suppose you could point that out to him, though that could be a very awkward conversation to have.

Keep your mother's finances separate from your father's, if they aren't already, to ensure clarity on how your mother's money is being used. Maybe you can tie up some money in, say, a three-year ISA to keep it away from the temptation to spend it immediately (though make sure you can cash in early if you really need to). In fact, what's to stop the two of you from moving the money to some other account where your father can't get at it? But that sounds like really desperate measures and open warfare so I hope it doesn't come to that.

...this financial advice was really useful as well. The ISA is worth considering for the future if we have legitimate concerns. Since my original post he has told me the money will be from his account, which is his decision obviously. This whole online conversation has made me realise we do need to sit down together as POAs and talk through the finance situation.

 

[mrjelly]

Nuisance call blocker

If they don't already have one, I would get them a nuisance call blocker for their house phone. That would help prevent unsolicited sales calls and annoying automated and silent calls. The Truecall box we have just sits on the line into the old cordless base station and sends to it's answerphone all calls from numbers that aren't in a list that you program it with. For a few pounds a year you get a remote web interface to update the list of numbers and check incoming and outgoing calls. Perhaps this could be an easier sell to your Dad than some more drastic measures.

 

[nools]

If they don't already have one, I would get them a nuisance call blocker for their house phone. That would help prevent unsolicited sales calls and annoying automated and silent calls. The Truecall box we have just sits on the line into the old cordless base station and sends to it's answerphone all calls from numbers that aren't in a list that you program it with. For a few pounds a year you get a remote web interface to update the list of numbers and check incoming and outgoing calls. Perhaps this could be an easier sell to your Dad than some more drastic measures.

I think they may already have one of these, but I will check, thanks for that. I added them to that free service which blocks out cold calls..forget what it's called. That was put in place to protect my Mum though as she is supposedly the one who is vulnerable to salespeople!