Can people be named as Power of Attorney without their permission?

Discussion in 'Welcome and how to use Dementia Talking Point' started by RDB, Oct 5, 2015.

  1. RDB

    RDB Registered User

    Oct 5, 2015
    2
    Hi'
    An unusual situation and a bit complicated but I'll try and keep it simple...
    I'm a friend of someone (R) who cares for her mother who is suffering from dementia. You'll clearly know the stress this can cause. R also has Power of Attorney, which is good.
    (This is where it gets a bit complicated!)
    R has a daughter (E) aged 32 years.
    E has just been informed by her mother's friend, aged 60 and has full capacity, that she has been to a lawyer and named E as her Power of Attorney.
    Because of the friendship relationship, E felt she couldn't refuse and of course her mother is unhappy with the way this has been done, without any notice to either R or E.

    So my question is; can anyone legally name another person as Power of Attorney without their permission / consent / even knowledge?
    If this is legal, how can E refuse?

    Thank you for any advice.

    Ralph
     
  2. canary

    canary Registered User

    Feb 25, 2014
    10,509
    Female
    South coast
    My husband and I have just had POA organised and we have nominated our 2 children as well as each other. People who have been nominated have to sign to say that they accept. We signed each others forms and our forms have been sent to our children for them to sign. Once they have signed, the forms will be sent for registration.

    Obviously we checked with our children first, but if we hadnt (very rude IMO not to) then there is the risk that they didnt want to do it and not sign. Has E signed the form? Until she has signed and returned it she is not legally the attourney.
     
  3. nitram

    nitram Registered User

    Apr 6, 2011
    19,020
    Male
    North Manchester
    "So my question is; can anyone legally name another person as Power of Attorney without their permission / consent / even knowledge? "

    A donor can ask a person to be a attorney but the attorney has to sign Part 11 accepting the appointment

    "If this is legal, how can E refuse?"

    By not signing.
     
  4. Beate

    Beate Registered User

    May 21, 2014
    11,708
    Female
    London
    Hang on a bit. We are all assuming that we are talking about a lasting power of attorney here. That one indeed requires the signature of the attorney. There is however a general power of attorney that can be given with full mental capacity but will cede once mental capacity goes.

    https://en.m.wikipedia.org/wiki/Power_of_attorney

    A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter, sometimes against the wishes of the other. The person authorizing the other to act is the principal, grantor, or donor (of the power). The one authorized to act is the agent[1] or, in some common law jurisdictions, the attorney-in-fact (attorney for short). Formerly, a power referred to an instrument under seal while a letter was an instrument under hand, but today both are signed by the grantor, and therefore there is no difference between the two.

    In English and Welsh law, anyone with capacity can grant a power of attorney. These can be general (i.e., to do anything which can legally be done by an attorney), or relate to a specific act (e.g., to sell freehold property). A power of attorney is only valid while the donor has the capacity to ratify the attorney's actions, unless it is made in the form of a lasting power of attorney and registered with the Office of the Public Guardian.[citation needed] This new form of power of attorney was introduced in 2007 under the Mental Capacity Act 2005 and replaced the former enduring power of attorney, although EPAs correctly made before the law changed are still valid. EPAs only need to be registered if the donor has since lost capacity.

    It should be noted that many of the provisions in the earlier paragraphs above use terminology different from either common UK usage or terms used in the Mental Capacity Act 2005. Examples are enduring power of attorney, advance directive, and notary public.

    To be honest, I don't quite understand the purpose of this but check which document she actually set up.
     
  5. Katrine

    Katrine Registered User

    Jan 20, 2011
    2,850
    England
    #5 Katrine, Oct 5, 2015
    Last edited: Oct 6, 2015
    E must woman up and say thanks but no thanks. I do wonder what the donor can be thinking of. :confused:

    My mum had a neighbour, P, who she bullied into doing lots of free admin for her after my dad died. P's late mother had been a friend of a friend, so P got involved in the first place because she thought her mother would have wanted her to help her friend's friend. It's a slippery slope when you have a kind heart.

    At first P was willing to help but had to set boundaries because of her own personal commitments. Very soon my mum expected P to come round every day to sort and action her post. P might have told her that she'd come at the weekend, but this wasn't good enough for my mum. She would ring P and cry and demand that she came round straight away. Poor P had a full-time job and an elderly disabled father to look after. Nothing she said made any difference to my mum who was consumed by anxiety and became utterly selfish in consequence. I could not help either of them. My mum got hysterical at the thought of me 'interfering with P's system', and P had been forbidden to talk to me.

    There is a point to this saga, bear with me! :eek:

    My mum went to the solicitor and got a POA drafted naming P as her attorney. P declined to act. My mum was furious, but you cannot force someone to be your attorney. Well I suppose you can. You can instruct your solicitor and they will say Yes because they will get paid for it, whereas a lay attorney is being asked to do all the work for free. See my mum wanted a free service from P, who is an accountant, but not to pay her for her professional services.

    Even though P had refused to be her attorney, my mum then named P as co-executor of her new Will. P was not informed. It is good practice to let executors know and to give them a copy of the Will, but there is no legal requirement to do so. Some years on I got in touch with P and when she found out she was named as an executor she was aghast. She said that when the time came she would refuse to act, even though there's a nice little legacy included for her that was intended to make sure P would act out of obligation.

    OK, sorry to have gone on so long. My point is that E may find this is the thin end of a very large wedge.
    She needs to find out what the donor expects from her and stamp firmly on any unreasonable expectations. That's just my opinion, based on our family experience. Being bullied into helping someone does nobody any favours in the long run. :rolleyes:
     
  6. RDB

    RDB Registered User

    Oct 5, 2015
    2
    Thanks very much to all of you for responding and doing so very quickly.
    Because all this happened yesterday R hasn't had the opportunity to meet with her daughter and hear all the details.
    Interestingly, yesterday, E was also asked to be an Executor and promised a percentage of any estate, as mentioned in the last post!

    I can see trouble ahead but we will bear in mind all the good advice given.

    Thanks again,

    Ralph
     

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