Can I challenge a Power of Attorney

Frozzy

Registered User
Jul 13, 2013
7
Scotland
Being a newbie I'm not sure where to begin, I just hope I can describe the current situation well enough that one or some of you can offer me some good advice.
I will try and condense this as it is quite lengthy otherwise.
My Step Dad's health started to fail over the past few months which initially involved a short stay in hospital and then transfer to a local nursing home into a double room which my Mum shared with him. Sadly he passed away at the beginning of July.
What has since transpired is that my eldest brother, without even speaking to me, had managed to talk my Mum into signing power of attorney over to him back in November last year. My Dad obviously wasn't too sure about this as he had insisted on being joint poa, not that it did any good really. My Mum has very mild dementia, she simply has a very short term memory issue. As a trained Dementia carer I have personally nursed many, many people who live at home alone with support from family and social work (often without family!)
Mum is still in the nursing home, in the same room that my Dad died in. She cries very day because she wan't to go home. I have had a meeting with the social worker and my eldest brother and the social worker said that she would not have an issue with Mum going home with a care package in place but my brother won't let it happen and he refuses to give a reason why, other than to say "It's not going to Happen" and "It's my decision and don't you forget it". I have explained to Mum that my Brother won't let her go home because she has signed the poa giving him the right to say what happens to her but she insists that is not what she was told she was signing and she firmly believes that it was to make my brother responsible for her estate once she has passed away. My brother has also managed to recruit my other brothers to gang up on me (the little sister!) and whilst husband and children are all fully behind me I cannot see a way of stopping this draconian process. My Mum is locked in a home that stinks and is at risk of being harmed by other residents. I can't even take her out for a cup of coffee without getting permission from big brother. She wants to go home, she is a strong, independent woman who is far from being gaga and it breaking my heart seeing her locked away like a criminal. Please! is there anything I can do? Can I challenge the poa? I would just add that the Doctor who signed the poa certificate is a personal friend of my brother. I have tried to keep this brief and really would appreciate any useful advice and soon.
Thank you for reading this.
 

sah

Registered User
Apr 20, 2009
332
Dorset
Others may know more---but is the PoA still valid if one attorney has died? May be worth checking. Also- I thought attorneys were supposed to act in the best interests of the donor-and only when they were incapable of making their own decisions. If your mum is still deemed to have capacity by her doctor-she can decide for herself and he cannot over rule her.

I would certainly see a solicitor-and maybe try to speak to her doctor/consultant about whether or not she can still decide for herself. Having PoA does not give you the right to decide what happens against the donor's wishes.

If she is still capable-she can cancel the PoA and take out another one naming you as attorney...

Hope you get somewhere.
Sah.
 

rajahh

Registered User
Aug 29, 2008
2,794
Hertfordshire
My understanding is that when a poa is registered with Court of Protection some next of kin have to be informed and are given so many days to voice their opinions about it.

Do you know if the poa is registered, or is it just signed, waiting to be registered??

I say this because my husband signed the forms etc two years before we registered it.

When I did this I had to inform his daughter, and his brothers. I think there have to be at least 3 not sure. However if for example there are children then all the children have to be informed, but if there is only one child then siblings have to be informed,

I think it is a minimum of 3 possibly 4 people have to be told.

Does the poa cover finance and health, or only finance??

If it is only finance, then the welfare of your mother is not in your brothers remit.

I hope there ay be others who can come along and explain this more clearly,

Jeannette
 

Boldredrosie

Registered User
Mar 13, 2012
244
I think you need to get legal advice. Is the POA for financial issues or health and welfare? Also has it actually been registered? You can set a POA in motion but not register it until it's needed.

I don't know for sure but I think you probably can challenge this in someway.

One thing you should try and find out -- when your brother was registering this he should have informed someone that he was doing this and I think the person I informed was written to by the Public Guardian. It could be worth getting in touch with that person to let them know what has happened.

Good luck
 

sue38

Registered User
Mar 6, 2007
10,854
51
Wigan, Lancs
Who has to be notified when a POA is registered depends on what type of POA it is. If it is an Enduring Power of Attorney (which only covers property and finance) then close relatives do have to be informed when the power is registered. Since 2007 an EPA can no longer be created, and have been replaced by Lasting Powers of Attorney (LPA's) .

With an LPA the donor specifies who they wish to be notified, if anyone. If they decide they do want someone notified they can choose anyone. It doesn't have to be a relative - it could be the milkman!

There are two types of LPA - one for Property and Affairs, and one for Health and Welfare. Both can only be used once registered with the Office of the Public Guardian, and (as others have said) the Health and Welfare LPA can only be used if the donor is no longer able to make decisions for themselves. Even if your mum does lack capacity it doesn't mean that the attorney can make whatever decision they want. They have to act in her best interests and in line with the Mental Capacity Act.

I suggest you seek legal advice, but in the meantime I'm popping in links to a couple of factsheets which may help.

Factsheet on Powers of Attorney

Factsheet on Mental Capacity Act

And welcome to TP! :)
 

piedwarbler

Registered User
Aug 3, 2010
7,189
South Ribble
I'm so sorry you are in this position. Sadly some vulnerable people are treated like this by their own relatives. (Your brother) I wish you lots of luck if you do challenge the PoA which I guess would involve going to the OPG?
 

benny

Registered User
Dec 7, 2009
290
Central Coast NSW
Hi there

I live in Australia but I am sure the same would apply over there. And POA is only for financial decisions. You have to have Guardianship to make lifestyle and medical decisions. And you should be able to contest it. I have just taken my father to the Guardianship Tribunal and succeeded in taking POA, away from him so he has no access to my mothers finances, but it is a hell of alot of work as I am now what they call Her Financial Manager and the POA has been put on hold for 12 months, but I have to account for every cent and send every receipt, prepare financial plans etc for the NSW Trustee. But at anytime I can ask to have that overturned and become the POA again which I was before the Hearing.
And I agreed to allow the Guardianship to become her guardian as it would alleviate the awful thoughts that my dad had of me for making (in his eyes) the most awful and wrong decisions. And that will be re- evaluated in 12 months and I will say that it has been the best decision that I ever made for my Mum's sake, which is what I promised them both when I agreed to my parents in healthier days to make decisions in the best interest for them and when I signed the POA and Guardianship
papers. But be prepared for the emotions, the anguish, the tears, the anger and frustration. It really does take it's toll, but I feel I have done everything and succeeded in trying to make my mums life as happy as it can be under the circumstances Best of luck Cheers Robyn!
 

jenniferpa

Registered User
Jun 27, 2006
39,448
I live in Australia but I am sure the same would apply over there. And POA is only for financial decisions. You have to have Guardianship to make lifestyle and medical decisions. And you should be able to contest it. I have just taken my father to the Guardianship Tribunal and succeeded in taking POA, away from him so he has no access to my mothers finances, but it is a hell of alot of work as I am now what they call Her Financial Manager and the POA has been put on hold for 12 months, but I have to account for every cent and send every receipt, prepare financial plans etc for the NSW Trustee. But at anytime I can ask to have that overturned and become the POA again which I was before the Hearing.
And I agreed to allow the Guardianship to become her guardian as it would alleviate the awful thoughts that my dad had of me for making (in his eyes) the most awful and wrong decisions. And that will be re- evaluated in 12 months and I will say that it has been the best decision that I ever made for my Mum's sake, which is what I promised them both when I agreed to my parents in healthier days to make decisions in the best interest for them and when I signed the POA and Guardianship
papers. But be prepared for the emotions, the anguish, the tears, the anger and frustration. It really does take it's toll, but I feel I have done everything and succeeded in trying to make my mums life as happy as it can be under the circumstances Best of luck Cheers Robyn!
I'm sorry, it is different in the UK - you elect to get a LPA for welfare and/or a LPA for finances. And in England and Wales if you can't get an LPA because the person has lost capacity, you would be very lucky to get a Deputyship for welfare - they tend not to be granted (it's different in Scotland).
 

zelana

Registered User
Feb 11, 2013
127
N E Lincs
Frozzy, if your mother hasn't been found to lack capacity then it's her decision where she lives. Even if your brother has POA for Health & Welfare he can't make decisions for her until she has been found to lack capacity

It's probably worth talking to the SW to see if she thinks your Mum has capacity to make decisions. If she thinks your Mum is capable of making the decision to go home then you should ask her to organise a 'best interests' meeting. Your mother will be at the meeting and will have the chance to make her wishes known. I would also get some legal advice. CAB or AgeUK might be able to help.

Your Mum can cancel the POA if she wants to. This link explains what she would need to do. She'd probably need a solicitor to act for her as I doubt your brother would hand over the POA for her to send to the OPG with the deed of revocation. The care home will know of a solicitor who will visit your Mum if she hasn't already got a solicitor.
 

Frozzy

Registered User
Jul 13, 2013
7
Scotland
Thank you all so very much for your replies. We will of course make further enquiries with the OPG but as I said, the doctor who signed the certificate is a personal friend of my brother. I know! it stinks! The one very important thing that I omitted to tell you was that we are actually in Scotland. Seems that there may be various avenues to follow in England but I think us from the North may have to climb a few hills first!
 

Moonflower

Registered User
Mar 28, 2012
775
Frozzy I hesitate to write this as I am in no way an expert, so take this with a pinch of salt...
The Scottish POA seems a little different to the English one - I have both for my mother (long story)
Whereas the English one is effectively a filled in form, the Scottish one is more like a letter, setting out what powers the attorney should have, what decisions they should be able to make, and the circumstances in which they can make them. So it might be worth you getting a copy of what your mother has signed, to see exactly what she has agreed to - and possibly take it to a solicitor.
 

zelana

Registered User
Feb 11, 2013
127
N E Lincs
A Continuing Power of Attorney allows you (the "Granter") to legally appoint people (called "Attorneys") to look after your property and financial affairs should you become incapable of doing so yourself at some point in the future.

A Welfare Power of Attorney allows the Granter to legally appoint Attorneys to make decisions with regard to your health and welfare should you become incapable of doing so yourself at some point in the future. Source http://www.clickdocs.co.uk/continuing-and-welfare-poa.htm
Frozzy, I've underlined the important bit in the quote. It seems the forms are different to England & Wales but the powers are very similar. A POA for Health & Welfare can only be used once the donor lacks capacity. If your Mum still has capacity then she can make her own decisions. Has your Mum been found to lack capacity?
 

Frozzy

Registered User
Jul 13, 2013
7
Scotland
Dear Moonflower and Zelana.
Thank you so much, you are giving me hope. We will Push things on in the morning and will post progress.
Frozzy
 

Frozzy

Registered User
Jul 13, 2013
7
Scotland
Before I go to the OPG does anyone know what the process of overturning the POA is? Can Mum just write to them? Can it be a different doctor from the one that signed the original one?
 

scared daughter

Account Closed
May 3, 2010
587
This is very worrisome, I was notified through the post that my mothers boyfriend was trying to get POA over her

We alerted her solicitor of our concerns, and it didn't go through, we now however have to sort out COP as she lacks capacity.

Needless to say now the boyfriend has no access to her holiday home or resources, he isn't around much!
 

Frozzy

Registered User
Jul 13, 2013
7
Scotland
Well done to you for being on the ball. There are some greedy people out there who have no real regard for others. Good luck.
 

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