Unwilling Attorneys - what now?

[Lilac Blossom]

I hoped that my son and daughter would agree to be appointed Power of Attorney for me but they have indicated that they are unwilling to do this. Naturally I am very disappointed.

What can I do now? Who else can I ask? Has anyone else experienced this?

Lilac

 

[Soobee]

I understand your disappointment but as a former attorney for both parents I also understand their refusal to get involved.

Do you have any siblings you could ask? I am assuming you are currently in reasonable health.

If there's no-one you can think of, then my understanding is that if you became incapacitated and it was necessary for someone to manage your money for you, some of it would be used to set up a Deputy to act on your behalf. This would probably be a solicitor if no-one else was willing to be attorney. I'm sure someone on here will clarify whether this is the case?

 

[jenniferpa]

This is from an AgeScotland leaflet about Power Of Attorney

If you do not have any suitable close relatives or friends who you could trust to act on your behalf, your options are limited because Power of Attorney is about putting your trust in someone who knows you well. You could choose someone you know professionally, such as a solicitor or accountant, but they will charge a fee for acting on your behalf. If you are in this position, give us a call at Silver Line Scotland on 0800 4 70 80 90 to talk about other provisions that can be put in place to plan for your future.

 

[Kevinl]

People take a strange view when it comes to "legal" things, people in general know very little about them and so don't want to get involved in case there is any come back.
If they're not prepared to do it jointly I'd ask each of them if they had any objection to you asking the other one to do it alone? It may be that they have different views and don't want to do it together, if they still refuse then it may be worth pointing out to them that if you pick a friend or a relative to do it that this person will have all the say over your health and welfare and you finances, their status as your children, should anything happen to you will be overridden by the LPA holder.
This person will have the total right, should they want to sell your house and all its contents on ebay and do things with the money that aren't what your children want.
Jen's suggestion that you use a professional, lawyer or whatever is fair enough but it will cost...big time so if the kids don't mind seeing their inheritance getting eaten up at the rate of several hundred pound an hour by a solicitor then that's their choice.
Do they realise that if no one holds an LPA and you were to lose capacity then all you bank accounts could be frozen? If you were deemed to have no capacity and no one has a LPA then they have no rights to do anything, no access to your medical records, no right to be consulted about your care, no right to use your money to pay your bills, the fact they're your children will give them no more right to a say as to what happens in your life than I do?
If you can't find a way to make them work together and they won't do it individually either then suggest to them an (unacceptable) alternative person you might pick, the idea that mad auntie Doris in Auchtermuchty being the person responsible for managing your future health and their future inheritance might focus their minds
Whilst everyone has the right not to do something I think your children's view is very short sighted, I'm not sure they truly understand how much it could cost in the future if they don't have an LPA and how much their hands will be tied.
K

 

[cobden28]

I hoped that my son and daughter would agree to be appointed Power of Attorney for me but they have indicated that they are unwilling to do this. Naturally I am very disappointed.

What can I do now? Who else can I ask? Has anyone else experienced this?

Lilac

Some years ago after the death of my stepdad, my elderly Mum (now 86) asked me if I would be willing to act as her legal representative with authority to deal with her finances in the event of her ever becoming unable to manage herself, and I declined. Not only would there be tremendous legal responsibility to ensure everything was handled correctly but I have no idea of the correct legal procedures to be undertaken in the event of her death. I simply didn't know what was legally expected of me.

Besides, in order to act for Mum in financial matters I'd need to know the extent of her finances - what she has and where - so that I knew what it was that I'd be supposedly looking after - and in all her born days Mum has never ever discussed her finances with me, Ever. So I declined the responsibility because I didn't know what I'd be letting myself in for & wasn't sure I'd be able to act correctly & legally on her behalf.

We therefore agreed that Mum's solicitor is the best person to deal with such matters, and whilst it will cost Mum's estate a fair sum at least the solicitor will know what has to be done and when, who has to be notified etc, so that everything can be done correctly and in accordance with the law.

 

[Beate]

To be honest, I'm a little shocked to read such statements. It's often extremely difficult to get people to allow LPA to be granted for them, so for relatives to turn it down and employ costly solicitors instead beggars belief.

All you have to do is register the LPA with the donor's bank or building society, and you get access to their accounts, plus debit cards, cheque books etc. As an attorney you are expected to act in the donor's best interest but you do not have to keep accounts like a deputy and send them off to anyone. You can control the donor's spending and make sure it goes into the right places.

I've never had a problem yet and find it extremely easy to handle, especially with access to Internet banking.

Also, someone's death ceases any LPA. Probate has nothing to do with an attorney, and they don't have to be the executor. The "tell us once" form let's you inform organisations quickly and easily.
https://www.gov.uk/after-a-death/organisations-you-need-to-contact-and-tell-us-once

 

[cobden28]

To be honest, I'm a little shocked to read such statements. It's often extremely difficult to get people to allow LPA to be granted for them, so for relatives to turn it down and employ costly solicitors instead beggars belief.

All you have to do is register the LPA with the donor's bank or building society, and you get access to their accounts, plus debit cards, cheque books etc. As an attorney you are expected to act in the donor's best interest but you do not have to keep accounts like a deputy and send them off to anyone. You can control the donor's spending and make sure it goes into the right places.

I've never had a problem yet and find it extremely easy to handle, especially with access to Internet banking.

Also, someone's death ceases any LPA. Probate has nothing to do with an attorney, and they don't have to be the executor. The "tell us once" form let's you inform organisations quickly and easily.
https://www.gov.uk/after-a-death/organisations-you-need-to-contact-and-tell-us-once

As I recall - and this happened some years ago now - Mum had asked me to be the executor of her will, and it was this that I declined the responsibility of and which her solicitor is going to do the necessary for. At the moment Mum most certainly has all her wits about her and is perfectly capable of handling her financial affairs herself so there's no question of any sort of LPA being requested or needed right now.

 

[Beate]

But that's exactly when an LPA needs to be signed! Once she's lost capacity, it's too late and your only option will be deputyship. That's going to be expensive and onerous, even without factoring in any solicitor's fees. Not having any LPA in place, whoever the attorney, is only going to store up problems for the future.

 

[oilovlam]

LilacBlossom, you might want to check that your children know that you are talking about being an 'Power of attorney' (POA) and NOT an executor (which seems to be the 'mistake' that Cobden28 has made).

POA isn't too onerous. As a POA they can simply get a Solicitor or Accountant to do anything difficult or even delegate one to do all the work (but they would have ultimate control). But to refuse to become POA is pretty daft IMO, effectively they would be handing your assets over to some third party person who they would have no control over & they would find it very difficult to challenge any decisions.

If I were you I would suggest to them that they talk to a solicitor (they may get a free consultation or you could offer to pay for the advice) who would clear up any confusion they have.

Or as suggested you could say you have asked a bloke up the road to be your attorney, he's a builder (therefore highly trustworthy) and he knows all about the legal system because he's just got out of prison.

 

[jugglingmum]

For either POA or executor you can always pay a professional to do all the work, but the ultimate decision making rests with you, not someone else, so get appointed and then get the solicitor to do the work.

I think it does depend on how complex a web of financial affairs as to how simple being POA is, my mum has accounts with multiple banks and building societies, with multiple accounts (up to 10) with them. On top of this she has shares and other investments, it has taken more time to deal with this than her actual welfare.

 

[Soobee]

Please don't make the assumption that it's easy to be an attorney - most of you have obviously just had straightforward relationships with the person you're attorney for, and not many different accounts all over the place to sort out.

I found it difficult even though I've always managed our household finances. My mum wanted things paid in cash and not Direct Debit, for a start. That soon had to change! There were loads of different bits of money in different accounts and not all in high street banks. And she didn't want them amalgamated. And then we found out that she hadn't been honest with the joint accounts and took dad's money into her own accounts. That was hard when I was attorney to both of them. She basically stole his money bit by bit and I didn't know how much to give back to him. He was very sad to realise they could have enjoyed a better lifestyle but she always said there was no money to do this and that.

Mum was always very interested in money and material things so I thought I might be in the firing line if she became paranoid. There was a woman in the nursing home who spent her whole days shouting "give me back my money!!!" and I was scared that mum would be the same, but fortunately she wasn't.

Other family members may put pressure on attorneys - there are many reasons why it's best to decline to be one.

 

[Soobee]

...I think it does depend on how complex a web of financial affairs as to how simple being POA is, my mum has accounts with multiple banks and building societies, with multiple accounts (up to 10) with them. On top of this she has shares and other investments, it has taken more time to deal with this than her actual welfare.

Exactly my experience. I was spending loads of time at the financial institutions, jumping through their hoops to prove I was attorney, and a lot of them made mistakes, and were unnecessarily obstructive. On top of this I was trying to sort out care (they refused it), and offer emotional support for both parents, and carry on with my own life and my job. It wasn't a pleasant time and I used to put it off for months and then have a spate of doing some, then put it off some more. I've never felt like that about my own finances.

 

[Kevinl]

We therefore agreed that Mum's solicitor is the best person to deal with such matters, and whilst it will cost Mum's estate a fair sum at least the solicitor will know what has to be done and when, who has to be notified etc, so that everything can be done correctly and in accordance with the law.

Sorry Cobden, but I thing you've done completely the wrong thing.

An uncle of mine died sometime ago and the fees the solicitor charged were over £10,000, part of this was them selling his house but even with this deducted it was still nearly 10K in fees. They charge for everything, every phone call, every letter.
When my mum died I was the executor and just went to 3 local solicitors, gave them an overview of the situation and asked for an estimate and got the whole lot done for just under £3k, she didn't have a house to sell, I did that myself.
As my uncle's will was written leaving fixed sums to certain people and the residue to charities effectively all the fees came out of the charities share.

Sorry about ranting.
K

 

[Lilac Blossom]

Thanks for so many helpful and thought provoking replies. I appreciate your willingness to share your knowledge and wise advice. Just going to read them all again.

I hope we can reach a solution that we all feel ok about.

Lilac x

 

[Cherryade]

Lilac Blossom,
I live in Scotland as well and have just gone through the whole process of POAs for a friend. There are 2 types of POA - one is health and welfare, one is financial. Both can be the same person or persons, either joint or severally, or they can be different persons or person. My friend has no relatives so 2 of her friends have POA for health and welfare and for the financial side of it, a firm of solicitors will do it when/if she is unable to cope with money. At this point I would think she will be in a home so they will deal with selling the house etc to pay for care as well with dealing with bills etc and in the event of her death, settling the estate. POA for H&W is slightly different insofar as it only comes into play when my friend is medically deemed not to have capacity any more. The Financial POA can come into effect before that at the request of my friend.

It did not cost very much to draw this up with the solicitors (in Scotland you have to go through them) and was very straight forward. The 2 friends (who know each other) have POA jointly. In some cases it may be better to have it 'severally' ie each can make decisions independently.

I am executor of her will and this will only come into effect on her death, at which point the POAs' powers cease. I am also substitute POA for H&W if one of her friends can no longer do it.

It may be worthwhile getting hold of the booklets about the duties and responsibilities of POAs in Scotland and give them to your children. They may or may not be aware of the responsibilities and may have said no in ignorance of the facts.

If they stilll refuse, then you can ask friends. If they refuse, and you are under the care of Social Services, then SS can be appointed for the health and welfare side. Financial side would have to go to a firm of solicitors. And I think then it becomes 'guardianship' for SS rather than POA.

 

[Rosettastone57]

I hoped that my son and daughter would agree to be appointed Power of Attorney for me but they have indicated that they are unwilling to do this. Naturally I am very disappointed.

What can I do now? Who else can I ask? Has anyone else experienced this?

Lilac

Hi my husband and I have no children so children to help aren't an option. After dealing with my mother in law who has dementia and we are her attorneys, we took the decision to get POA for each other well in advance of any potential problems should our health deteriorate. I am attorney for hubbie and vice versa. We both have other attorneys who are friends and other family members who potentially will act jointly and severally.