Power of Attorney - rights

Damashi

Registered User
Sep 7, 2011
5
Further to my earlier post regarding a sibling having hold of my fathers financial affairs...

It would appear that at the time of my post no one had POA. However today I have received a text from that sibling informing me that my father has given him POA. I think my dads choice is wrong and when he asked me to do it 2 years ago I had declined and told him to leave it with a solicitor due to family divides. What rights do I have such as demanding access to bank statements etc to ensure my dads affairs are being dealt with properly. I would like to see a backlog of statements and details of ISAs he holds but my brother is denying me access.

Giving him POA gives him the legal right to do what we think he may be doing in the first place, running down the accounts.

It's a terrible time and do not understand my dads choice given the past. I do not understand it but I respect it...if that makes sense. I would like my dads financial affairs to be dealt with honestly and when the time comes fairly. My brother who has POA has already told my other brother that dad has come into an inheritance and that he won't be getting his hands on a penny. That was before he had POA.

Any help greatly appreciated.
 
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Nebiroth

Registered User
Aug 20, 2006
3,511
First, it is necessary to establish whether the Power of Attorney is registered or not. This means that the attorney named in the POA has notified the Office of the Public Guardian that the person who created the POA (called the donor) has lost the capacity to manage their own affairs. The OPG will then send out the certificate that grants the attorney their authority. Most POA's are set up so that they can only be registered when the donor loses capacity although it is possible to have POA's that take immediate effect.

Part of the registration process involves the attorney sending out formal notices of their registrating the POA to specific relatives. There is a given order of precedence, this starts with husband/wife/civil parter, followed by children.

Two notifications are required, one to each "group" of relatives, and all the people in each group must be notified. For example, if someone is married and has four children, then the notice would be sent to their husband/wife and one to each child.

If the attorney is one of these, then they are removed from the list and notices are adjusted accordingly.

The notification must be sent in writing. I do not think that a text or email would be sufficient.

The notification is part of the registration process, and it cannot proceed unless the OPG is satisfied that is has been done correctly.

Following notification, the relatives have the right to lodge an objection; in that case it would be normal for the Court of Protection to review the whole thing, then make a decision about whether to grant the authority or not. In matters of family dispute where agreement cannot be reached, it is common for the Court to null the original POA and appoint an independent person to act as attorney, unless the Court is satisfied that the objection has no grounds and that the attorney is a suitable person.

Note that some places will accept a non-registered POA document for some limited transactions - for example, a utility company might be satisfied with this if the named attorney wanted to manage the donor's bills. It is usual to seek the donor's permission to do this.

However, others will not accept anything but a registered POA - the OPG send out a certificate which the attorney must produce as proof. Banks, for example, will not normally give access to accounts unless this is so.

My only suggestion would be - first find out whether the POA is registered and whether you should have been notified. If you should have been, but were not, then this is grounds for a complaint. Other than this, you can notify the OPG that you believe the attorney is abusing their position and ask them to investigate. They have powers to examine financial affairs.

Note that an attorney, even one with a correctly registered POA, cannot amend a Will previously written by the donor, nor can they create a new one on the donor's behalf. If the donor lacks capacity then they cannot write a Will, therefore a previous Will written when they did have capacity remains in force and cannot be altered, although it could be challenged following the person's death. If there is no Will, then your father's estate would be distributed according to intestacy law.

Unfortunately, you have no right of access to your father's financial records. However, the OPG does have powers to examine these, in the course of investigating a complant.
 
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nitram

Registered User
Apr 6, 2011
19,687
North Manchester
Have you checked with the OPG?
If your father is incapable you brother can only be an attorney if appointed under a registered EPA or LPA.

If he is acting as such an attorney you have no right of access to any bank statements etc.

Giving him POA does not give "...him the legal right to do what we think he may be doing in the first place, running down the accounts...", he has to act in your father's interest.

If you think that he is guilty of mal-administration you can contact the OPG with any evidence that you may have.

Did you father make a will? If so any inheritance will be distributed as specified in the will, if no will the laws of intestacy will apply.
 

nitram

Registered User
Apr 6, 2011
19,687
North Manchester
...
Part of the registration process involves the attorney sending out formal notices of their registrating the POA to specific relatives. There is a given order of precedence, this starts with husband/wife/civil parter, followed by children.

Two notifications are required, one to each "group" of relatives, and all the people in each group must be notified. For example, if someone is married and has four children, then the notice would be sent to their husband/wife and one to each child.

If the attorney is one of these, then they are removed from the list and notices are adjusted accordingly.

The notification must be sent in writing. I do not think that a text or email would be sufficient.

The notification is part of the registration process, and it cannot proceed unless the OPG is satisfied that is has been done correctly....

.
This requirement only applies to EPAs not LPAs
http://www.justice.gov.uk/downloads/global/forms/opg/lpa-hw-lrg-print-info-1009.pdf
 

Damashi

Registered User
Sep 7, 2011
5
The bank would not need to be approached by him as he has the bank debit cards and their PINS so he can withdraw from a cash point. It seems a ridiculous state of affairs were folk can do this but the old are vulnerable and their are some people who take advantage of that.
 

jenniferpa

Registered User
Jun 27, 2006
39,448
The important thing you need to understand is that if he is doing this without registering the POA and without informing the bank he is acting illegally. Legally, this is little different to using a stranger's card and pin.
 

ArfanB

Registered User
Oct 5, 2011
9
London
As mentioned the keypoints to check first are

1) Type of Power of Attorney, is it an "ordinary" one or a "lasting power of attorney"
2) if it is an LPA is the document registered? and if so who was "nominated" to be notified and who was the certificate provider.

I think currently the registration times are about 13 weeks for a LPA. Nonetheless upon registration the people to be notified and the Certificate provider can raise concerns if they feel the donor is being forced into registration.

The Certificate Provider's role initially is to ensure a LPA is not made under duress and the donor realizes the power of the document.

If the document in question is indeed a LPA you should contact the OPG and as mentioned ask for advice on how to deal with the situation where an attorney is misusing their power. They would be in the best position to advise.

If however the LPA is NOT registered and just created (signed). Your brother cannot act legally in regards to your father property. financial affairs etc.

However if it is an ordinary POA, these are normally for a specific task and should hold (ideally) no power after this task is complete.

In an ideal solution if your father has capacity and a LPA is not made one should be made with an "attorney" he trusts as well as the family. This would prevent your brother from extracting funds form his accounts as the "attorney" will monitor them and can act on behalf of your father to reclaim them.

However as you mentioned debit card and pin numbers are known; I would lodge a complaint with the bank and see if they can help.
 

Nebiroth

Registered User
Aug 20, 2006
3,511
Indeed, banks are usually very unhappy about anyone but the actual card holder knowing PIN numbers and using debit/credit cards

I'm not sure if it's an actual violation of the terms and conditions of use, but at the very least the banks have an extreme dislike of anyone doing this - even when it is done with the best of intentions.

It is the same with online banking. So much so that some banks refuse to allow attorneys to operate online banking on behalf of the donors.

As I recall, even registered attorneys are supposed to apply for their own card linked to the account they are managing for someone else - not use that person's card and PIN.
 

scatterbrain

Registered User
Jan 10, 2008
25
Berkshire
attorney doing what he likes with the money ...

There is a legal obligation on the holder of a PoA to act in the best interests of the donor. In fact I was advised to keep a log of my actions, so if necessary I could demonstrate that I have been acting appropriately. Fortunately our family is very close and supportive, so I don't expect any problems, but I do realise how blessed I am!

As for the banks: I have found that mostly the staff, while being very well-meaning and wanting to help, just do not understand what to do. They do not know the rules about PoA's (any type) and will often tell you that you can't do something when it is quite clear that it is permitted. There is no easy way through this morass of incompetence - but it might slow your brother down a bit!

The Court of Protection is there to protect the vulnerable, in the final analysis. I think if all else fails that would be the way to get help.

I wish you all the best - and I hope you find that your brother is actually doing it right.
 

handyjack

Registered User
Oct 6, 2011
151
We had one lady in our care/nursing home who had given her neighbours LPA. It was obvious from meetings with these neighbours that they were only interested in her for her money. They questioned how much the care/nursing home costs were, even saying at one point "How much is this costing us?" Until it was pointed out that it was the resident's savings that were paying for her stay. Her neighbours even argued with a doctor over her medical assessment saying that they felt she would be better off in the local NHS hospital. (no doubt saving the resident spending any money)
We raised our concerns with Social Services, who were very polite about it, but said they would always have to abide by the law (no matter how distasteful they thought it was) One doctor even pointed out to them that they had a responsibility to act in the best interests of the resident and was immediately accused of supporting our care home (to fleece??? more money out of the resident)

Best thing I can suggest is to seek legal advice about your fathers situation.