Another LPA question

Discussion in 'Legal and financial issues' started by Grump, Aug 29, 2016.

  1. Grump

    Grump Registered User

    Aug 29, 2016
    9
    Hi
    I joined here to ask a few questions about the legality of LPA's and it seems that there are a few trust issues with other members of the family.

    My mother in law has what I called "old aged forgetfullness". You can hold a conversation with her and she knows who people are and what is going on, but she will ask you something, then minutes later, ask you the same question.

    I used to work in a care home and count ourselves lucky that she is nowhere near the stage that some people have to deal with.

    Anyway the question. All her 3 children have LPA, but only one is controlling the finances. The other two do not speak to the one controlling the finances and it has come to light that a comment has been made along the lines of "When the end comes to mum, they will have a shock". The mother in law has cancelled the online banking once and we verbally told the bank that it was not to be reinstated, but it was.

    The other two do not trust the financial controller and wondered if there is anything they can do. Is it possible to just appoint a solicitor? Any suggestions welcome. I have told my wife that they all need to talk. Easier said than done when they are all as stubborn as mules.
     
  2. Steve115

    Steve115 Registered User

    May 17, 2016
    97
    Huntingdon area
    Hi Grump,

    I cannot help directly here other than to suggest the opening of discussions as you mention. However, I did work with someone who described a similar situation going on in his family. They handed everything over to 'professionals'; he observed that the cost was huge in terms of fees and far outweighed any benefit they derived overall. So beware of going down that route unless there is no alternative.
     
  3. Kevinl

    Kevinl Registered User

    Aug 24, 2013
    4,737
    Salford
    Hi Grump. welcome to TP
    As long as your mother in law still has capacity (and it sounds like she does) she can simply write a new LPA on the government on-line website on the link below, section 3.
    Having made an LPA it then has to be registered when the person loses capacity, as and if your MiL does still have capacity the LPA should not be being used, if it is then (in my view) it's being used fraudulently and could now or in the future be prosecutable.
    The rules on what an LPA has to do are quite strict and they cannot benefit from being an LPA, if the When the end comes to mum, they will have a shock" means something untoward then they may get a shock too like some time behind bars.
    It's sad when families breakdown this way but sadly not uncommon.
    K

    https://www.gov.uk/power-of-attorney/overview
     
  4. jaymor

    jaymor Volunteer Moderator

    Jul 14, 2006
    12,401
    Female
    England
    Whether the LPA can be used before capacity is lost depends on the wording of the LPA. The donor can decide whether it can or can't be used prior to loss of capacity and this will be noted in the LPA. This is where it is important that your attorney can be trusted to work in your best interests.
     
  5. Grump

    Grump Registered User

    Aug 29, 2016
    9
    Thanks for the info.

    So am I correct in saying that until the mother in law looses all her mental well being, the LPA can not be used? Sorry if I have mis read.

    The other thing is that the mother in law has a large sum of money. The relative who is doing all the financial stuff is limiting how much money they give to the mother in law even though it is her money. They are trying to maximise how much money is left at the actual end so that they can emmigrate. They are a nasty excuse for a human being and claim that they can not do any more than they are doing. This leaves most of the care dutiyes for the other two. Care consists of going at the night and in the morning to make sure she is ok and to give her medication. She sees to herself with breakfast and gets herself dressed (there are wash issues but that is another story)

    Will keep you updated and will dig out the LPA paperwork and see what it says.

    Thank you
     
  6. Jessbow

    Jessbow Registered User

    #6 Jessbow, Aug 30, 2016
    Last edited: Aug 30, 2016
    Very much depends on the wording
    Jointly appointed? or jointly and severally? They mean different things. Basically all/2 of 3 to sign/agree anything or each individually can do so.

    When the LA come into play can vary too, again dependant on the wording. Has the LPA been registered with the OPG?

    Has the donor lost capacity ? That is when a LPA often comes into use, not the opposite. It enables someone/people to act , either alone or together ( as above) on behalf of the donor ( the person it applies to)

    You really do need to check what it says
     
  7. Beate

    Beate Registered User

    May 21, 2014
    11,624
    Female
    London
    #7 Beate, Aug 30, 2016
    Last edited: Aug 30, 2016

    No that is not correct. Unless the donor put a restriction in the financial LPA, it can be used while he still has capacity. The exact wording is on page 2 of the LPA. Any restrictions must have been put on page 6.
     
  8. Grump

    Grump Registered User

    Aug 29, 2016
    9
    I may need to get a copy of the LPA as all we can find is the notice and a letter from the bank to say who has POA.

    Where can I get a copy from?
     
  9. Shedrech

    Shedrech Volunteer Moderator

    Dec 15, 2012
    7,735
    Yorkshire
    #9 Shedrech, Aug 30, 2016
    Last edited: Aug 30, 2016
    Hi Grump
    I am Attorney for my dad with a co-Attorney, and the POA is joint and several, so each of us can act individually - both POAs were registered not long after completion
    for finance & property I helped dad out for years with his permission, then as his abilities dwindled I took over and ran his financlal affairs for him, as he had before, again he knew this; when he moved into his care home and a DOLS was put in place, I registered the POA with his bank and took over completely.
    so unless the POA for finance & welfare includes any restricting clauses (which my dad's didn't) an Attorney can assist and then run the affairs before the donor reaches the state of no longer having capacity BUT with the donor's consent (as I understand it)
    for the POA for health & welfare, that only comes into effect once the donor no longer has capacity

    if all 3 of your FIL's children have joint POA then they MUST all act together and actions can only be taken if all 3 agree
    if they have POA jointly and severally then one Attorney may take on the running of the affairs with the agreement of the other 2
    that doesn't mean that the Attorney running your FIL's affairs can act against the wishes of the other 2 Attorneys AND that Attorney cannot keep the other 2 out of the picture - it does mean that all Attorneys are equally liable for how the affairs are run

    however, whilst your MIL has capacity it is she who is in control of her affairs, so actually, until she has no capacity, Attorneys don't have the right to instruct the bank against her wishes (I appreciate that your wife may feel that her sibling is maybe the one effectively in control) - and her finances, if she has enough to be self funding (which you intimate is the case) are available to pay any care fees and to be spent or not spent as your MIL wishes (though, again, it seems that your wife feels this isn't what is happening)

    a tricky situation - maybe have a look at the gov website
    https://www.gov.uk/government/collections/lasting-power-of-attorney-forms
    and do have a careful read of your wife's copy of the POA documents

    maybe the shock will be how much is left; maybe how much has to be spent on care .... maybe it was a silly throw away remark
    if the siblings don't speak, maybe a letter outlining your wife's concerns?
    be careful handing affairs over to a solicitor, though it may be wise for your wife to speak to one to gain some advice
    and she can contact the OPG for guidance - though be careful there also, if they come to believe there are disagreements between Attorneys and/or concerns about how Attorneys are acting they may choose to investigate, so keep any questions to them open and general eg one of the Attorneys is thinking of doing ..... is this acceptable? - I have found the OPG very helpful

    sorry I've waffled on

    PS if your wife is an Attorney she should have received a copy of the documents - if they can't be found, contact the solicitor who drew them up - the original is an extremely important document and she really does need to find out where it is held
     
  10. Beate

    Beate Registered User

    May 21, 2014
    11,624
    Female
    London
    The person who has the original?
     
  11. Grump

    Grump Registered User

    Aug 29, 2016
    9
    Just spoke to the Office of the Public Guardian and they said that all 3 must agree on everything to do with the mother in law. The one in control of the financies keeps moving money from one ISA to the other without giving notice and seems to be the self appointed banker.

    The original LPA was sent to the mother in laws address, which I can then only assume has been taken by the banker so we are unable to see the contents. There is also an issue with the will in respect that it was drawn up from a template on the internet by the banker which contains jargon that does not even make sense to the mother in laws estate. Anything to save a penny they have done it.

    It was interesting to hear that option one on the automated help line related to elder abuse and fraud.

    Edit: No solicitors were used in the drawing up of the LPA
     
  12. Katrine

    Katrine Registered User

    Jan 20, 2011
    2,852
    England
    When my brother had EPA for my mum he couldn't find his certificate so he ordered a replacement from the OPG (there was a fee). Have you asked the OPG if your wife as one of the attorneys can order a replacement copy from them? If yes, then she and her other sibling should do this as a matter of urgency.

    Then they can tackle the bank. If the brother is using a different document that purports to give him sole POA, or joint and several powers, then he's acting illegally, since the LPA registered with the OPG is the only one that counts. If, however, the bank has seen the correct LPA which states joint (not several) powers, then they would be in trouble for mishandling MIL's funds.
     
  13. Grump

    Grump Registered User

    Aug 29, 2016
    9
    Thanks for the assistance

    My wife and her brother are going to write a joint letter to their sister (the banker) expressing their concerns and under no circumstances is she to do any more moving of money without the permission of the other two.

    The mother in law said that she didnt want her money moving around and to just leave it where it was, but against her wishes part went in to an ISA.

    So looking back on it, she seems to have been a bit naughty.
     
  14. Shedrech

    Shedrech Volunteer Moderator

    Dec 15, 2012
    7,735
    Yorkshire
    Hi Grump
    you've really made me think about my position as Attorney
    I must admit that I had assumed that the sibling was doing something untoward with your MIL's finances ie not paying bills or refusing to pay for homecare fees or spending it unwisely
    if money has been put into a new ISA (I assume in your MIL's name) wouldn't that be a sensible financial move to conserve it and get some interest on it (it's still money available to your MIL)? though I appreciate you say your MIL said to leave it where it was (I assume in a no interest current account); maybe there's an awful lot been left in an easily accessible current account, which is probably not the best idea, even if your MIL just wants to let things be
    might the sibling be concerned that your MIL has been spending unwisely herself or that the money is too readily available and so at risk in some way, and is therefore trying to keep some of the money safe (doesn't have to mean that the sibling is planning to run off with it all)
    you do say the siblings don't really communicate, so maybe there is an acceptable explanation and the sibling is only trying to do the best for their mother
    you mention trust issues, which I took to be amongst the siblings, rather than that your MIL didn't place her trust in the sibling and now doesn't trust them, as it appears that at some point you were all content to have the sibling be the MIL's 'banker'
    though, if the POA is joint, then all three are involved in decisions, which can be tricky if there's little communication, which leaves plenty of space for misunderstandings
    I think I'm suggesting that your wife doesn't go in all guns blazing just in case things aren't as they appear and the sibling has been really trying to do their best believing that they have been left to organise your MIL's finances on behalf of you all
    just my thoughts
     
  15. Grump

    Grump Registered User

    Aug 29, 2016
    9
    The sister who has taken charge of the finances is looking to emmigrate/buy property abroad, but until something happens to the MIL she is not able to do anything. She has even asked to borrow the deposit from the MIL but she said no. She has also suggesting that the MIL move in with her so that the house can be sold (we assume this as she does nothing that wont benefit her) Her partner has a business but has not contributed to the system and will not have a pension hence the urgency for money as they are approaching retirement themselves. It is as though the MIL is hanging on too long for their liking.

    You can see why we have trust issues :D
     
  16. sue38

    sue38 Registered User

    Mar 6, 2007
    10,856
    Wigan, Lancs

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