Decisions not covered by Lasting Power Of Attorney?
- Thread starter Relm
- Start date
I think most problems arise when people try to be "clever" and put in certain restrictions which are either unworkable or actually contrary to the laws governing lpa. Mind you something that comes up here fairly often is: what happens if you want to sell a home you own with the person you are attorney for. You have to get a trustee to act for the donor. That's down to the trustee act.
Hello Kevin. I was asking about decisions that needed to be taken on behalf of someone with dementia but which do not fall into either the Financial or Health/Welfare Lasting Power Of Attorney.
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Hello Jennifer. I am not asking from the point of view of someone drawing up a Lasting Power Of Attorney but from the point of view of one of the named persons.
I have joint Lasting Power Of Attorney but anticipate some differences of opinion with the other person who may want to rely on the authority granted by POA even though may not cover the matter in question.
I was wondering if this situation was common and if people here had examples of decisions not covered by POA to allow me to forestall any problems with my other POA person.
You mention a situation where it is necessary to get a "trustee for the donor". I don't understand. Is the donor the person with dementia? Are you saying in that case it would be necessary to get a third party (perhaps a solicitor or would friend do) to act as trustee. Sorry if I am a bit confused! Can you explain it a bit more? Thank you.
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Yes, the PWD is the donor. This is from the gov.uk website:
Health and welfare lasting power of attorney
Use this LPA to give an attorney the power to make decisions about things like:
your daily routine, eg washing, dressing, eating
medical care
moving into a care home
life-sustaining treatment
It can only be used when you’re unable to make your own decisions.
Property and financial affairs lasting power of attorney
Use this LPA to give an attorney the power to make decisions about money and property for you, for example:
managing a bank or building society account
paying bills
collecting benefits or a pension
selling your home
It can be used as soon as it’s registered, with your permission.
What problem scenarios are you anticipating?
Health and welfare lasting power of attorney
Use this LPA to give an attorney the power to make decisions about things like:
your daily routine, eg washing, dressing, eating
medical care
moving into a care home
life-sustaining treatment
It can only be used when you’re unable to make your own decisions.
Property and financial affairs lasting power of attorney
Use this LPA to give an attorney the power to make decisions about money and property for you, for example:
managing a bank or building society account
paying bills
collecting benefits or a pension
selling your home
It can be used as soon as it’s registered, with your permission.
What problem scenarios are you anticipating?
One issue that can come up at this time of year is gifts to family and friends. If the person with dementia had been giving small Xmas or birthday gifts when well this can probably continue, but larger gifts which could significantly affect the funds available for their care should probably be discontinued.
Also, when dealing with care and medical professionals there can be situations where they follow their own guidelines rather than what an LPA attorney might suggest. E.g. hard copies of care records could be withheld in the name of patient confidentiality.
Also, when dealing with care and medical professionals there can be situations where they follow their own guidelines rather than what an LPA attorney might suggest. E.g. hard copies of care records could be withheld in the name of patient confidentiality.
You are fearing problems with the other Attorney?
The only solution, is negotiation!
Research the problem, argue from a position of knowledge.
If necessary let them find out the hard way! (but don't say "I told you so!")
Bod
One holder of the LPoA is not a member of the family. I am concerned, for example, that she will attach less importance to decisions which affect family matters and could estrange my mother from other members of the family.
In this example, I am sure my mother would attach a lot of value to being on good terms with all members of a family although at times (of high emotion but poor judgment) she might regularly declare that so-and-so should never ever visit her again.
The other LPoA may then undertake those wishes thinking it would cause my mother to have less distress. If the other LPoA attempts this then I would like to know if she is acting beyond the authority gained from the LPoA.
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There may be various other examples too and MrJelly mentions here the question of how generous gifts should be to other family members.
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It doesn't seem as if it's impossible for you to work with your co-attorney, but there is currently a lack of trust that needs to be overcome. Have you considered ringing the Alzheimer's Society helpline for advice? You can discuss your very specific concerns in confidence.
Visitors:
I can't say whether your mother's welfare POA document is specific about the powers of her attorneys to decide with whom she should associate. In plain language - to bar someone from seeing the donor. From reading some posts on TP it would appear that this does sometimes happen. For example, one sibling banning other siblings from visiting their parent in a CH. If there is a real risk to either the person's physical or psychological wellbeing then Yes sometimes relatives can be restricted from unsupervised access. However, sometimes such sanctions appear to be applied for less worthy reasons.
Gifts:
Perhaps this Christmas your mother would enjoy choosing stocking filler gifts, and the issue of larger sums could be discussed by the attorneys without the time pressure of the upcoming festive season? Does your mother use giving or withholding money to exercise control over her relatives? Ditto permission to visit her?
I can quite see that you would not wish to encourage or enable such behaviour, but worry that an outsider might do so by taking specific incidents out of context.
Visitors:
I can't say whether your mother's welfare POA document is specific about the powers of her attorneys to decide with whom she should associate. In plain language - to bar someone from seeing the donor. From reading some posts on TP it would appear that this does sometimes happen. For example, one sibling banning other siblings from visiting their parent in a CH. If there is a real risk to either the person's physical or psychological wellbeing then Yes sometimes relatives can be restricted from unsupervised access. However, sometimes such sanctions appear to be applied for less worthy reasons.
Gifts:
Perhaps this Christmas your mother would enjoy choosing stocking filler gifts, and the issue of larger sums could be discussed by the attorneys without the time pressure of the upcoming festive season? Does your mother use giving or withholding money to exercise control over her relatives? Ditto permission to visit her?
I can quite see that you would not wish to encourage or enable such behaviour, but worry that an outsider might do so by taking specific incidents out of context.
You indicated that you are joint attorneys. If this correct and all decisions have to be signed off on by both attorneys, then I'm not really seeing your concerns. Because neither of you can make unilateral decisions: there has to be agreement. If the other attorney says "X can't visit" then you can say "X can visit". Although I have to say, if it gets to this point you may be looking at an impossible situation which is likely to be referred to the COP.
If you are actually joint and several attorneys and with regard to your specific example: TBH if your mother states that X shouldn't visit, then X shouldn't visit. If the other attorney takes action to put this into effect, then he/she is actually acting as the granting of an LPA requires them to. Which is not to say that such a decision couldn't and shouldn't be revisited. If you feel that the attorney is acting in a high handed manner and against your mothers best interests while your first action should be to discuss this with the other attorney, you could then take it to the COP.
Is this other attorney a professional? A solicitor or similar? Because I think that most "professional" attorneys defer to the family about relationship issues unless it's clear that that is counterproductive.
If you are actually joint and several attorneys and with regard to your specific example: TBH if your mother states that X shouldn't visit, then X shouldn't visit. If the other attorney takes action to put this into effect, then he/she is actually acting as the granting of an LPA requires them to. Which is not to say that such a decision couldn't and shouldn't be revisited. If you feel that the attorney is acting in a high handed manner and against your mothers best interests while your first action should be to discuss this with the other attorney, you could then take it to the COP.
Is this other attorney a professional? A solicitor or similar? Because I think that most "professional" attorneys defer to the family about relationship issues unless it's clear that that is counterproductive.
This occurs only in a situation where an attorney and the donor jointly own a property and there arises a need to sell the property. In that very specific situation the attorney can't act for the donor: there has to be another person who basically acts for the donor in that situation. In other words, an attorney can't act for themselves and the donor when it involves property sales: you would have one person acting for two and that's not permitted by the Trustee Act.
"...is jointly and several best? just me for hospital?"
There is not an option of just you for hospital, the options are severally (either of you) and jointly (both of you acting together).
As the LPA has been signed it can't be changed, a new one would have to be written if you want details of how the attorneys should act to be changed.
What does the present one say in Section 3?
EDIT
Above quote in red is from now deleted post #14
Question rephrased in post #18
There is not an option of just you for hospital, the options are severally (either of you) and jointly (both of you acting together).
As the LPA has been signed it can't be changed, a new one would have to be written if you want details of how the attorneys should act to be changed.
What does the present one say in Section 3?
EDIT
Above quote in red is from now deleted post #14
Question rephrased in post #18
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Jennifer, we have a welfare LPA form filled but not yet registered, mum just had me attorney because I live with her and know her a bit better but with another solicitors visit added my sister to be fair. my sister lives 3 h away but does come down to help and is on the phone often, sometimes mum and I disagree with her, not always though. is jointly and several best or jointly would you say?
We had this discussion on your own thread already. Yes, go for jointly and severally if you must have your sister as a co-attorney. But it's not really up to the solicitor to add someone "for fairness", it's up to the donor to decide. What does your Mum want?
thankyou, we had two visits from the solicitor, mum said just me but then my sister felt not part of it so the second time she was present and mum said both that's fair. she doesn't fully understand it nor bothered too much but when I talk with her she says just me.
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