Complex Situation With LPA

[Saskia123]

I have a difficult situation with my mum and stepfather. My mum has shown increasingly poor memory over a couple of years but has become far worse within the last 3 months with 3-4 minute short term memory, personality changes and vagueness. We are awaiting follow up after an MRI with the consultant. It's clear she has dementia and is not able to manage herself on a daily basis, including medication and finances.

The situation is complicated by a step parent with a very poor financial record, employment history, and who has been dishonest with money in the past (and is somewhat secretive and controlling). Because of this the house (the vast % purchased by the sale of her previous home) and all bank accounts are in her name. He uses her bank cards to manage their finances and they have drawn down from their equity to pay for large purchases in the recent past. He has now arranged for us to see their solicitor to draw up Lasting Power Of Attorney. He has stated we will have joint LPA for care (medical), and he will have soul LPA for finances. This is causing alarm bells and I am concerned he will be able to draw down large quantities of money from the equity of the house and gift them to his son, and spend them inappropriately. He has stated in the past, he feels my mum's will should be split 50/50 between me and him (and therefore eventually his son), but as it stands I am a 60% beneficiary.

Does anyone know if an attorney can draw down of equity unchecked, or whether a system is in place to protect the estate of the donor? MY IFA wasn't sure, and it seems crazy that someone could basically take a huge sum on money unchecked. This is not just about my inheritance, this is about my mum's money being safeguarded to pay for whatever she needs, and fairness.

I want to try and appeal to him for us to have joint financial LPA but I know this is going to cause a problem with him. All this on top of the upset of my mum seems to have 'left' already. I am even wondering is technically she is lacking capacity to decide on LPA.

Any advice/support welcomed.

 

[nmintueo]

Attorneys are in principle subject to oversight and can be required to produce accounts for the Court of Protection / Office of the Public Guardian. And, of course, they have a legal duty to act in the donor's interests rather than their own.

However, I think you'll find most attorneys have just been left to get on with it and have never been audited. And this forum abounds with anecdotal cases of all sorts of attorney malarkey, and it seems to be very difficult to get an attorney removed for misconduct. (And even if one did, it might be a case of shutting the stable door after the horse has bolted).

If you can't successfully negotiate a satisfactory arrangement with your stepfather, I see two possibilities:

1) A capacity assessment determining that your mother no longer has capacity to create a power of attorney.

The bar for capacity here is pretty low, yet it seems to be a pretty hit-and-miss business: you'll find people on here who are confident someone has capacity but some doctor makes a snap judgement and says no; or conversely people say attorneyships were set up behind people's backs when the donor actually seems to lack capacity.

If a POA can't be set up now, you'd be left looking at a deputyship, which is more complicated and more expensive, but I think comes with more oversight (which you might consider a good thing).​

2) Objecting to your stepfather as an attorney (or sole attorney) or deputy.

That might be possible here on the grounds that your stepfather has a history of bad and dishonest financial conduct (and the house etc were in your mother's name because of that). Can you prove this history easily?​

 

[Saskia123]

Attorneys are in principle subject to oversight and can be required to produce accounts for the Court of Protection / Office of the Public Guardian. And, of course, they have a legal duty to act in the donor's interests rather than their own.

However, I think you'll find most attorneys have just been left to get on with it and have never been audited. And this forum abounds with anecdotal cases of all sorts of attorney malarkey, and it seems to be very difficult to get an attorney removed for misconduct. (And even if one did, it might be a case of shutting the stable door after the horse has bolted).

If you can't successfully negotiate a satisfactory arrangement with your stepfather, I see two possibilities:

1) A capacity assessment determining that your mother no longer has capacity to create a power of attorney.

The bar for capacity here is pretty low, yet it seems to be a pretty hit-and-miss business: you'll find people on here who are confident someone has capacity but some doctor makes a snap judgement and says no; or conversely people say attorneyships were set up behind people's backs when the donor actually seems to lack capacity.

If a POA can't be set up now, you'd be left looking at a deputyship, which is more complicated and more expensive, but I think comes with more oversight (which you might consider a good thing).​

2) Objecting to your stepfather as an attorney (or sole attorney) or deputy.

That might be possible here on the grounds that your stepfather has a history of bad and dishonest financial conduct (and the house etc were in your mother's name because of that). Can you prove this history easily?​

Thanks so much for your advice, very much appreciated.

Before my mum became unwell she was forever telling me about things he had done, but in recent years with ailing health and reliance on him she's trotted out the statement 'I couldn't wish for a better husband' on many occasions. What I do have is a long hand written document (circa 2003) addressed 'To whom it may concern' but given to me by her, where she goes into some details all his financial and work failings year by year (as well as total of 18k he has taken of 'family money' and thrown into failed business ventures) and expresses concern should she die first. She fears his poor judgement would jeopardise her children's inheritance. She has then got her secretary at the time to type it out and I have it together with her will of the time that she requested her solicitor send me. Unfortunately, she has not dated or signed it, but the handwritten part is clearly her handwriting. Since then her will has been re-written (after the death of my brother).

I think I am going to have to try the line 'I feel it would be in her best interest that I be involved in major financial decisions'. If he says no then you have to wonder why?! I want to ask her for her opinion, but whatever she says she will have forgotten the conversation a few minutes later. Should I ask her in front of the solicitor?

 

[Beate]

It wouldn't hurt to ask for her opinion as she as donor is supposed to choose the attorneys anyway, they can't just appoint themselves. If she can't make that decision anymore, I'd question her mental capacity to understand what she's signing.

 

[Saskia123]

It wouldn't hurt to ask for her opinion as she as donor is supposed to choose the attorneys anyway, they can't just appoint themselves. If she can't make that decision anymore, I'd question her mental capacity to understand what she's signing.

I agree. I have already discussed with her POA for health matters and she was very happy with me having that (we are both ex nurses/I am her only child now). The financial thing is a sticky awkward thing because there is no honesty and a lot of smoke and mirrors where he is concerned. I may have to have a some dutch courage and discuss it with both of them in front of the solicitor.

 

[Kevinl]

If you don't or can't agree on the LPA remember he could do it without you knowing, you don't have to be told legally.
If your mum does lack capacity and it is decided she is past being able to sign an LPA, then you'd have to go to the Court of Protection this would take time and cost money but whoever became the deputy would have to send the CoP an annual financial statement so they should pick up on anything untoward, hopefully. It wouldn't stop him doing anything but it if caught he would be in deep trouble.
In a way it might be better if she is declared unfit to sign and you have to go to the CoP sad though it is to say that but a CoP deputy is scrutinised where an LPA isn't.
K

 

[fortune]

I think alarm bells are very much in order. There is a system of oversight by the Office of the Public Guardian. I have PoA for my mum and was on the receiving end of a malicious complaint which triggered a very thorough investigation of what I had been doing with the money. However, as has been pointed out, if misuse occurred you might not get to know about it until it was too late. It is a common misconception that attorneys can pretty much do what they want with the money. In fact the requirements are very specific: all money must be spent in the Person's best interests, not anyone else's! You may have to bite the bullet and go with your gut feeling here. After all, your mum may well need the money to pay for care and it's her interests that you need to stand up for. It may have changed now but when my mum set up her PoA she had to nominate two trusted people to give their opinion as to whether the proposed attorney was a good choice. Mum asked her brother and the family solicitor if I would be suitable. Both had known her for many years. Maybe there is a way in there for you? Best of luck, it sounds like a horrid situation to be in.

 

[nmintueo]

This is a worrying situation. It sounds as if your stepfather is making his power grab already by arranging to see the solicitor to set up the powers of attorney (when is this happening?). He has informed you beforehand, which you might see as showing a degree of openness, or you might see more cynically as a ploy that makes it practically impossible for you to object afterwards.

To me, the document your mother wrote sounds like dynamite and I imagine it could, if you were to use it, scuttle any hopes he would have of being appointed sole financial attorney. Perhaps consider seeing another solicitor yourself first to discuss this confidentially.

 

[Saskia123]

This is a worrying situation. It sounds as if your stepfather is making his power grab already by arranging to see the solicitor to set up the powers of attorney (when is this happening?). He has informed you beforehand, which you might see as showing a degree of openness, or you might see more cynically as a ploy that makes it practically impossible for you to object afterwards.

To me, the document your mother wrote sounds like dynamite and I imagine it could, if you were to use it, scuttle any hopes he would have of being appointed sole financial attorney. Perhaps consider seeing another solicitor yourself first to discuss this confidentially.

Thanks for your reply (and every else's, much appreciated).

I feel I should seek legal advice as well, if only to just get this stuff down officially, even if it doesn't come to having to detest or produce this paperwork. I'm going to send him a text with a fairly relaxed tone suggesting that after giving it some thought, I feel it may be in my mum's interest to share all POA. If he comes back with a no, then I will know I need to take this further. I am currently waiting for him to get back to me with a date and time to go with him and my mum to their solicitor. He wants this to happen ASAP as she is deteriorating.

 

[jenniferpa]

I don't suppose he's an undischarged bankrupt or subject to a debt relief order is he? Because I think both those preclude you from being an attorney.

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[Saskia123]

Well actually as far as I know, he was declared bankrupt some years ago. This is why everything - bank accounts, cars, house, are all in my mother's name.

I've since spoken to my IFA who also met with them professionally once (but whom my step father discharged). He said 'under no circumstances should this man be left in sole charge of your mother's finances.'

I am now seeking legal advice and have suggested to my step father that in my mum's best interests we should share all POW. He's come back to me(via text) saying 'No, he's managed their finances for years and won't change anything.'

Quite frankly I'm sick with worry. I'm not a person who like confrontation and this is a guy who has blighted my life for many years. I have enough worry and sorrow with my adjusting to my mum's rapid deterioration from being fairly with it until a few months ago. Horrid horrid situation.

 

[Jessbow]

Maybe you could sell your involvement as ''if something would happen to you, it would be so much more complicated to have to change it all again''

You really need a joint POA ( not joint and several)

 

[Pickles53]

I wouldn't want to share an LPA with anyone who is not financially trustworthy. I'd be wanting sole financial attorneyship and would be formally objecting to this person being involved.

The gov.uk website sets out how to do this.


https://www.gov.uk/object-registration/lasting-power

You don't want to be in a situation where you could be considered liable for his poor decision-making, surely.

 

[Saskia123]

Maybe you could sell your involvement as ''if something would happen to you, it would be so much more complicated to have to change it all again''

You really need a joint POA ( not joint and several)

Yes that's a good point but he's already thought ahead and says they'll also get it written up that should he become incapacitated I'll have POA over his health jointly with his son and his son have financial!!

 

[jenniferpa]

Yes that's a good point but he's already thought ahead and says they'll also get it written up that should he become incapacitated I'll have POA over his health jointly with his son and his son have financial!!

Well he might think that would cover it but it won't. All that would do (assuming he's talking about LPAs for him) is appoint attorneys for him, not your mother. There would need to be a replacement attorney named in your mother's LPA.

Not that that helps you much.

The bankruptcy might though: I would consult with your own solicitor.

 

[Shedrech]

hi Saskia123
you've had a lot of replies and I'm not sure I have any advice to offer, just a few worries
what are your mum's wishes regarding POAs? it is not up to anyone else to decide for her who will or won't be her Attorneys, and this appears to be what her husband is doing - seems to me, from the letter she wrote and what she has said to you before, your mum has not at any time indicated that she wants her husband to be her Attorney - it may be wise to ask HER solicitor (ie the solicitor is acting on her behalf at her instruction NOT for her husband) to speak to her privately
indeed, I wonder whether you can send the solicitor a note of all your concerns, especially the fact that this man may have been bankrupt, (I believe this can be checked as there's a register) and pass on what the IFA said to you , so that the solicitor has that information before they meet with your mum - I believe that anything you write to the solicitor is confidential and not to be discussed with her husband ( you can add that to the letter)
I also note that you think your mum may no longer have sufficient capacity to understand and sign the documents - the solicitor needs to know this too - it may be that the solicitor will agree with you and refuse to act, so you can then look into Deputyship
strictly, if everything is in your mum's name, her husband has no right to be managing her affairs, and banks take a dim view of someone else using the account holder's card - if the bank believes your mum no longer has capacity to deal with her finances, they may freeze her accounts - no wonder her husband wants the POA done asap
I just wonder whether he is 'looking ahead' as you say, even to moving your mum into full time care, leaving him, as spouse, in her property - does your mum have enough savings/income to be self-funding? - and, no, as Attorney he is not at liberty to draw down money on the house as he is under the duty of only acting in your mum's best financial interests: not sure that would stop him, and then you'd be having to attempt to claw back monies that he would no longer have
personally, I would not agree to be an Attorney for her husband - feels too much like a way of showing that you agreed to that role, so you must be in agreement with everything else
it does look as though you may need to speak up in front of the solicitor, who will at least then be fully aware that there a major disagreement about the POAs and a question of the husband's fitness to be an Attorney - not easy for you - I hope your own solicitor proves helpful
best wishes

 

[Saskia123]

hi Saskia123
you've had a lot of replies and I'm not sure I have any advice to offer, just a few worries
what are your mum's wishes regarding POAs? it is not up to anyone else to decide for her who will or won't be her Attorneys, and this appears to be what her husband is doing - seems to me, from the letter she wrote and what she has said to you before, your mum has not at any time indicated that she wants her husband to be her Attorney - it may be wise to ask HER solicitor (ie the solicitor is acting on her behalf at her instruction NOT for her husband) to speak to her privately
indeed, I wonder whether you can send the solicitor a note of all your concerns, especially the fact that this man may have been bankrupt, (I believe this can be checked as there's a register) and pass on what the IFA said to you , so that the solicitor has that information before they meet with your mum - I believe that anything you write to the solicitor is confidential and not to be discussed with her husband ( you can add that to the letter)
I also note that you think your mum may no longer have sufficient capacity to understand and sign the documents - the solicitor needs to know this too - it may be that the solicitor will agree with you and refuse to act, so you can then look into Deputyship
strictly, if everything is in your mum's name, her husband has no right to be managing her affairs, and banks take a dim view of someone else using the account holder's card - if the bank believes your mum no longer has capacity to deal with her finances, they may freeze her accounts - no wonder her husband wants the POA done asap
I just wonder whether he is 'looking ahead' as you say, even to moving your mum into full time care, leaving him, as spouse, in her property - does your mum have enough savings/income to be self-funding? - and, no, as Attorney he is not at liberty to draw down money on the house as he is under the duty of only acting in your mum's best financial interests: not sure that would stop him, and then you'd be having to attempt to claw back monies that he would no longer have
personally, I would not agree to be an Attorney for her husband - feels too much like a way of showing that you agreed to that role, so you must be in agreement with everything else
it does look as though you may need to speak up in front of the solicitor, who will at least then be fully aware that there a major disagreement about the POAs and a question of the husband's fitness to be an Attorney - not easy for you - I hope your own solicitor proves helpful
best wishes

Thank you so much for taking the time to reply to my problem. Your post really is very helpful. I think I must at least write a confidential letter to my mum's solicitor before the meeting next week.

Lots to think about...

 

[nmintueo]

Well actually as far as I know, he was declared bankrupt some years ago.

Have you checked the register? Is he on it?

Search the bankruptcy and insolvency register
You can search for details of people who have gone bankrupt or signed an agreement to deal with their debts in England and Wales.
https://www.gov.uk/search-bankruptcy-insolvency-register

If he were an undischarged bankrupt and so automatically ineligible to be an attorney, that would be 'good' because then it would be the rules stopping him, not you.

I've since spoken to my IFA who also met with them professionally once (but whom my step father discharged).
He said 'under no circumstances should this man be left in sole charge of your mother's finances.'

Well, good. Would he put that in writing?

I am now seeking legal advice and have suggested to my step father that in my mum's best interests we should share all POW. He's come back to me(via text) saying 'No, he's managed their finances for years and won't change anything.'

Ugh. If that's true, and he has "managed their finances for years", how do we know he's done it right? And if he gets sole attorneyship, how will you ever find out?

Quite frankly I'm sick with worry. I'm not a person who like confrontation and this is a guy who has blighted my life for many years. I have enough worry and sorrow with my adjusting to my mum's rapid deterioration from being fairly with it until a few months ago. Horrid horrid situation.

You have my sympathies. I'd hate to be put in a position like this.

 

[Saskia123]

Just an update on this. Went for meeting with mum's solicitor this morning to sort out her Power of attorney. I was so anxious and stressed about it, but thankfully I was called in to have the process explained with just my mum first and my step father had to wait outside.

I made it clear I didn't think she had the mental capacity to make the decision. I asked her why she was there and she stumbled over a reason. The solicitor said she still arranged it for clients as long as they understood on the day. I said I didn't think she had the capacity to remember her decision. I took the opportunity to make it clear that I didn't think she had instigated the meeting and that she had expressed concerns previously regarding my step fathers poor financial history (see OP). I took out the document she had given me and laid on the desk for the solicitor to read. I didn't verbalise a lot more as my step father was sitting just outside the room and would have probably heard a lot of what we were saying. The solicitor then asked my mum if she was happy for us to have joint POA and she said yes, but she didn't want to hurt his feelings (and added didn't want to be there for the argument). This clearly demonstrated she was feeling under influence. I left as he came in satisfied the solicitor was fully aware of my concerns. This will mean I can periodically gain access to their accounts and hopefully will be enough to send the clear message he's not to steal! I'm imaging he's not very pleased, but as it's come from my mum what can he say? If he's already been up to no good he should be feeling very worried. He tried to manipulate the whole situation, had already made it clear he would have sole financial POA, and hadn't even sat us down to discuss it with my mum first. He clearly thought coming to my house to discuss it all behind her back paved the way for him to have it his way.

Relieved.


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[Shedrech]

hi Saskia123
I'm really glad your mum, and you, both got to have your say and the solicitor listened
let's hope that knowing you now have a legal right, indeed responsibility, to oversee your mum's finances, her husband acts correctly
best wishes