Power of Attorney question

The key question for me is whether I have a duty to manage my mothers assets actively to maximise her income, when truth be told if everything were sold off, she could probably afford to spend the rest of her life living in a suite in the Savoy or on a P&O cruise.

No, you don't. An attorney has the same responsibility to the beneficiaries of the donor's estate as the donor would in the absence of the power of attorney: none. Beneficiaries have no grounds for complaint if upon the death of the testator the cupboard is bare, whoever emptied it.

The Power of Attorney dies with the donor, as do the responsibility. As has been discussed either here or on MSE (I forget), investigations by the OPG into misuse of powers of attorney die with the donor as well: they are not interested in mis-use unless there is a real live donor, rather than the donor's estate, who would stand to benefit from any recovery.

You can argue this gives attorneys a lot of latitude and the donor rather less protection, but there it is. Dishonest attorneys have very little to fear, provided they keep the donor's affairs ticking over such that the donor is provided for until they die.

In other words, if the attorney were to manage the donor's affairs such that the donor is comfortably provided for in their accustomed style, but the attorney was also lining their own pockets such that the day the donor dies the accounts simultaneously hit zero, they are practically in the clear. Although it is unethical, immoral and on paper illegal, in practice no-one has the locus to bring a successful action. The OPG won't (can't?), a criminal action for financial abuse would almost certainly fail and the beneficiaries have no standing. It's theoretically possible an action could be brought, but the hurdles to success would be extremely high. If anyone has case law, it would be very interesting to see it.

On the other hand, if the attorney emptied the donor's accounts ten minutes after the donor's death, that's flatly illegal: the POA and all its powers died with the donor; even if the attorney is also an executor. After the donor dies they have only the powers (and responsibilities) of an executor, at best.

An attorney has no responsibility to the beneficiaries, and no responsibility to the donor other than to manage their estate with reasonable diligence, which is a much lower standard than "as though they were a regulated financial advisor". If someone wants to make a regulated professional their attorney, and pay for it, that is their choice and then (I assume) the actions of the professional would be held to an appropriate standard. But it would be clearly invidious, and unreasonable, to expect a random holder of a POA (usually the donor's child, usually these days approaching if not already at retirement age) to transform themselves into a financial advisor. And that is not expected.

All that said, holding a power of attorney is doing someone a massive favour. I wouldn't be the POA for someone who had played silly buggers with their will, and I suspect I would not accept POA for someone whose will I didn't know the contents of. Being old is not an excuse for being spiteful, and I would place my own and my children's financial interests ahead of my parents'; if there was the slightest suggestion that operating a POA for my parents would cause problems for me because of decisions that my parents had taken, I would chuck the whole business to the state and leave them to it.

It would be outing to give details, but I have cousins whose mother has absolutely shafted them with a POA which has limitations which make it effectively impossible to effectively manage her affairs. It wasn't done out of spite, but it was done out of a combination of ignorance and stupidity. I have a lot of sympathy with them now, but had I been presented with that POA I would have refused to accept it and let the dice fall where they might. They knew its contents while she still had capacity, so could have told her to fix it or find other attorneys. They didn't ("you know how she is" and all that) and are now in a complete mess.

Kenefit, thank you. It is a weird problem to have. Not surprisingly I absolutely agree that a would be Attorney should think carefully about taking on the role. However, and inevitably, it tends to be something that is done in a crisis and without advice. The key question for me is whether I have a duty to manage my mothers assets actively to maximise her income, when truth be told if everything were sold off, she could probably afford to spend the rest of her life living in a suite in the Savoy or on a P&O cruise. The only people affected by financial decisions I make are those who stand to inherit.

I like your argument. I would not mind DM living high. Unfortunately her dementia is such that the most I can do is have her act generously to those who are kind to her. Fund a Christmas lunch for parish helpers, finance a regular session of old time music hall songs, etc. Unfortunately she is probably happiest with a routine of school dinner lunches and elasticated waist easily washable slacks, with the occassional trip to a beach cafe. I have no doubt that DF, who built the assets, would have no problem me selling them. They had a great early retirement and he would not begrudge me the same. Instead advice, from various official and family sources tends to focus on my/a POA obligations, rather than pay much heed to what makes my task manageable.

Queenofthe nights "The way some people are arguing over the costs of visiting their own parents is quite tasteless. I spend hours online doing things for my parents - accounts etc- and regard it as part of what I can do to help them out."

Context.

1. it is very common for siblings to refuse to do their share. Why should the person doing the most have to pay the most. And it does add up. I go down every couple of weeks, a three hundred mile round trip to see someone who won't remember I have been. After a decade I now usually stay the night, as I started to find day trips too much. Most times there is an errand, either to do with managing her assets or her care. Like most people in the same position, it is never just a visit. There is aways something to do.

1. I would certainly absorb costs if DM earned less than I do. However she earns a lot more, and my income is limited by the fact I had to give up my job seven years ago to be available. The same applies to people who are less well of and cannot afford to find the extra for things like hospital parking. If it is likely that at some point the state will need to step in to pay for care, you might as well claim for legitimate expenses, rather han make sacrifices to "help" your parents. (Save the money and use it to buy small items like nice toiletries should they end up in a care home.) The state would far prefer relatives helped elderly people stay at home for longer, than gave up becvaue they could not "afford" to support.

There seems to be no criticism of solicitors who happily push "attorney services" at elderly people even though these can cost a genuine forture. Ok for them, but not OK for a relative not to be out of pocket for being there and giving their time.

The Office of Public Guardian, does allow for POAs to charge reasonable expenses, though receipts need to be kept, and if the person specifically allows in the POA document, time can be charged.

Your statement "there is nowhere you can stipulate you want reimbursing for expenses" is essentially incorrect. To make double sure I have just checked with the OPG, who also confirmed that some people would really struggle being POAs if they had to fund costs themselves.

However the complications of being POA, when I am effectively managing/securing other people's inheritance is onerous. I would be perfectly content to forgo my share, liquidate my mother's assets leaving her with more than enough to live on, and reclaim my life.

I would refuse to be POA for anyone for whom I was not unambiguously the residual beneficiary, for this reason. I would even more firmly refuse to be POA for someone using their will as a weapon against me.

I believe that in practice legal actions of the form of "you didn't manage the estate prior to death well enough, thus devaluing the legacy" will fail, because you are acting for the donor and the donor would, if they retained capacity, be entitled to spend their own money. In other words, if you leave all your money to Charity X and then spend all your money on high living such that Charity X gets nothing, Charity X has no cause of action, and the attorney's responsibility is to the donor, not to the donor's beneficiaries.

However, life is too short to take the risk.

Having recently completed the LPAs for both my parents, there is nowhere you can stipulate you want reimbursing for expenses.

The way some people are arguing over the costs of visiting their own parents is quite tasteless.

I spend hours online doing things for my parents - accounts etc- and regard it as part of what I can do to help them out. having POA just makes it legal.

@needmoresleep I'm really surprised and confused by your take on POA.

I have LPA and my DH had it for his parents.

The role is to make financial decisions on their behalf as well as social care when they have lost capacity.

If it is costing you money to visit them that is your choice, being blunt. You could apply for carers allowance if you might be eligible.

DH claimed some money from his parents' estate when they died to cover his expenses for travelling and hotels when he has to visit them to manage paperwork etc around their finances. This was cleared with their solicitor and DH kept records.

Well, if you have bags of cash the Council want it - they are tax collectors, and in Surrey the Safeguarding teams are just tax collectors who get over the threshold by feigning a concern in your parent. So into a care home your parent goes, to subsidise the care home. Now, they may leave you alone thereafter, but of course the home can then lobby for higher fees, esp after your parent has a stint in hospital, it's a common ruse to use that month off to then spring a surprise, and turn up the day before lobbying for a fee rise. All supported by the local authority.

But in any event, there is a point when your parent's death saves the State money, even if you are self-funding. And any death from neglect, and you can't do much legally - the bar is set high.

I haven't touched on how the Liverpool Pathway is still going on in care homes, only it tends to be restricted to covert dehydration rather than denial of food. The idea is, you can't prove anything this way. It's the Richard II way of killing someone off - a legal cull of the elderly. Anyone who rumbles this will get a 'helpful' visit from Social Services - the Gestapo of Adult Social Care.

"You can get LPA in Finance after the event ie after your parent has lost their marbles or simply not very useful - it's the Deputyship. They have to grant you that at some point if you are to sort out their finances - after all, they want your money."

I think we may not be in disagreement over the value of the Health and Welfare POA, though my experience is that if there is enough money, SS wuill not want to engage at all. Five years ago I insisted that they assessed my mother, as I wanted her file flagged so her memory issues were taken on board before any discharge, and got it done after a long wait and three cancellations, but have yet to receive the report. All I ever hear from them now is the annual phone call telling me off when she has been found wandering.

However if there is money it is vital that the financial POA is in place before problems occur. The deputyship can take up to a year. Having money is a huge help, whether buying good convalescnt care in the event of an early discharge home, paying for private physio to get someone back on their feet and so on, and inevitably it is needed most at the point of crisis. .

My moan, and I am pleased that the knowledgable hatgirl clarified an earlier post, if that a financial POA is wild west country. There is very little advice out there, so even this week I moan when a friend tells me her mother is insisting she is join POA with the sister she does not speak to. Ditto DH is told by his parents that they have named him as POA with his brother, but he has not seen any paperwork. I am sure it works out in many cases, and parents do not like to have favourites, but the emotional toll if it is difficult can be huge. With SE property prices some parents have effectively won the lottery. When there is more than enough to pay for a parents care you are effectively managing someone else's inheritance. With some quite stringent rules and regulations designed to protect the elderly person, but which tend not to consider the needs of the person who has been landed with the Attorneyship. I did wonder if CuboidalSlipshoddy and I were related.

Two different issues. But better education around the need for POAs, would help solve both.

Well, why not do that - get LPA and see how it goes, then if you don't like it hand it over to SS. That said, how SS behave when you have power and when you don't are two different things.

But we are getting muddled. I am talking about LPA in Health and Welfare, not Finance. There is a big difference. You can get LPA in Finance after the event ie after your parent has lost their marbles or simply not very useful - it's the Deputyship. They have to grant you that at some point if you are to sort out their finances - after all, they want your money.

But LPA in Health and Welfare - not a damn chance of your getting that in the form of the deputyship once that ship has sailed. We had LPA in Finance for some reason, but not H&W - and boy, did we suffer. In any dispute with some of the scandalous care homes you read about, Social Services can just phone up the Office of Public Guardian to find out if you have LPA in Health and Welfare. What's that - they don't? Great - we can join forces and fit them up!

Social Services are in cahoots with their dodgy care homes, who dare not cross them because local authorities are all powerful.

Thank you. I am needing this rant.

In many many ways I know I am lucky that my mother is able to fund her own care. However the complications of being POA, when I am effectively managing/securing other people's inheritance is onerous. I would be perfectly content to forgo my share, liquidate my mother's assets leaving her with more than enough to live on, and reclaim my life. Learning that it might be possible to use the Court of Protection as a way of confirming that it will be OK, ie in her interests, to sell assets, is a recent and big relief. I am assuming that will protect me from any concerns about the "quality of management of affairs", and that the Court will consider the needs of carers as wel as the cared-for.

I am assuming that the reason why I am finding it so difficult to find a solictor willing to advise an Attorney, meaning that I will need to climb the learning curve on how to complete CoP forms myself, is because rules are so imprecise and open to question.

In my bleaker moments I see being a POA as being close to modern day slavery, with the only option being to quit and leave SS to it. I have even been told that I need to be available 24/7/365 in case anything happens.

I agree.

I'm aware of a case in my extended family where, after a death, a beneficiary is making threatening noises at another beneficiary who was also an attorney on precisely the "quality of management of affairs" basis. There's no suggestion (so far as I can tell) that there was enrichment, rather than the attorney did not do the best possible job in managing the deceased's affairs.

If such cases started to be common, the wise response to a request to become an attorney would be "no".

You don't need to involve family solicitors to get LPA. Sure, they charge a service to facilitate it but Lord knows why. It is very simple and only costs about £150 I can't recall how much exactly.

There is a strange narrative underway about LPA in the press. Like all Establishment narratives, the idea is that the general public are riff raff scum who can't be trusted and don't know what's good for them.

So we have a story in the Times of a judge talking about a Dunkirk veteran who signed his LPA to his milkman and got fleeced... Now I don't know why any elderly bloke, Dunkirk veteran or not, would sign it away to his milkman of all people but it seems a propaganda story. Which is not to say it's untrue, but it's selective truth.

You might as well say, well, no point writing a will because I heard of one old boy who got bumped off so his family could inherit! Well, okay, but that's no reason for most of us to not write a will is it? Or, say, there's no point getting married, as I heard one couple got divorced and she went for his life savings. Okay, but people do still get married don't they.

True, if your son is Nick Cotton, or your daughters Regan and Goneril, then maybe hold off on the LPA, esp in Finance.

One question not put by the OP or anyone is, does her BIL love his mother? Does he want what's best for her? The fact he might be a bit tight doesn't alter that, when he realises that once she is given over to the State, they own his mother and that is that. Not having LPA in Health and Welfare allows them to run riot and merrily engage in cover ups aplenty. So if a CQC on the care home mentions a resident in a poor way on their report who can only be his mum, only they never informed anyone about it, and she nearly dies as a result (reports get published eight months after the visit - - very cute) then they can and will refuse to identify that person because he won't have LPA. It's all a cover up and not having LPA helps public bodies do that, it's their fave pasttime.

No social worker, Parkinson's nurse or family GP ever advised us as to the importance of LPA and you begin to see why, esp with the local authority and primary care trust. They are wholly unscrupulous and your not having LPA allows them to engage in a cover up. Why would they inform you of this?

You only have to look at another thread about Telford to see just how bent local authorities are, ten years of grooming and rape and not a sausage from the police or social services. These are the ones you hand your parent over when you put them in a care home and don't have LPA. Good luck with that.

Good morning, hatgirl!

Hatgirl, my response was to Cubodial, but thanks for your post. It is something I am quite sensitive about.

You are right that it is near impossible to work out what can be recharged. My mother’s solicitor is clear that it would be a conflict of interest for her to advise on any aspect of my role as attorney, and I have not been able find anyone else to hand hold. (Solicitors seem keen to provide ‘attorney services’ but are uninterested in anything less lucrative.) I am not surprised at Cubodials suggestion that you can become an Attorney without needing to sign anything. Attorneys are required to manage assets actively, not to do so old be a criminal offence. And if there is money, you can potentially be sued by heirs should they feel their inheritance was adversely affected by the Attorneys decisions.

In my bleaker moments I see being a POA as being close to modern day slavery, with the only option being to quit and leave SS to it. I have even been told that I need to be available 24/7/365 in case anything happens.

I completely agree. More effort should be put into having people - both the Attorneys and the people they are Attorney for, sitting down early and discussing what everyone wants. I will probably look after my mother for longer than I have looked after my children. Yet despite me raising the issue for several years, paperwork was done in a panic following a fall. Perhaps AgeConcern or OPG could set up some sort of interactive check list so people can go into it with their eyes open.

I also worry about the conflict of interest that family solicitors have. There is every reason to encourage an affluent elderly person to put the Attorneyship with them. Yet I am sure this will not always be the right option. Their fees are huge.

I suppose getting a written statement from elderly person in question, witnessed by someone neutral like a family solicitor, as to what they want for their care should they lose capacity might help, if you really can't get the LPA in Health and Welfare thing going.

I agree. On a practical level it is simpler and easier to do admin and banking by myself, without having to consult. Luckily DB wanted no involvement whatsoever, even in minor care tasks like the odd bit of shopping on his rare visits.

If drafting a POA now, and there were assets, I would suggest a single POA, at least for the Finance one, and alternative checks and balances. For example my mum's accountant could provide an annual statement to other relatives at the same time as he does her tax return.

Cuboidal, on the big ticket items like the sale of a property, a sole Attorney can still potentially be called to account. DB does not support me liquidating DMs assets. I assume it is because the income generated from them more than pays for her care, and thus preserves the inheritance. I have now discovered that I can apply to the Court of Protection (without using a lawyer - another anomoly is that I cannot recharge legal advice I receive as an Attorney to my mother, even though an honest mistake could be considered a criminal act) to get their confirmation that such a sale would be in my mother's interests.

absolutely Needmoresleep and I wasn't for one moment suggesting you were abusing the system, more pointing out to the OP that some people's relatives don't always have fantastic intentions.

In my job i'm unfortunate that I am more likely to come across the situations where it has gone wrong rather than the situations where its mainly running smoothly and everyone has good intentions and families have entered into POA with everyone's eyes wide open.

I understand why at the first sign of confusion/ dementia etc the advice on here is to get power of attorney sorted but it always makes me uncomfortable because even if it is well intentioned it suddenly becomes a rushed process and elderly relatives can be pressured into getting it sorted out by well meaning family members without having time to consider what their wishes really are.

I don't understand why there isn't a bigger national push to get people to consider these things much much earlier in life so they can make informed decisions and their own time. Its not just elderly people who can benefit from having POAs in place, any one of us could have a massive stroke, car accident, brain haemorrhage etc at any time. There is an incorrect assumption about what powers relatives and NOKs have in these situations.

Whilst me and NewspaperTaxis [waves] haven't agreed on numerous points across various threads on this subject over the years they are absolutely correct that having POA is utterly invaluable if you and your family members want to be able to keep health and welfare decisions within the family rather than having no choice but to have state involvement if someone becomes mentally incapacitated.

In light of this, I refused to sign such a PoA

Refused to agree to be the attorney, that is. You don't sign to agree to be an attorney at the time of its drafting, which is an anomaly: you can in principle draw up a PoA in favour of someone who doesn't know about it.

but as pp suggests if there's any question of one attorney making decisions that aren't in everyone's best interests you can chose to act jointly.

Don't do this. If you don't trust people enough to be attorneys, you don't trust them enough to be attorneys. I have a relative whose PoA has turned into a blood bath, with one of the factors being that it is joint: her sons have fallen out with each other, don't agree about the finances, and so there is a complete logjam with her stuck in the middle while the house, which she has not lived in for some years, becomes essentially unsaleable. There are other complicating factors, but they would be manageable with a joint and several PoA.

In light of this, I refused to sign such a PoA, and my brother did likewise: we told our parents that we would not be willing to act for people who did not trust us, and that more practically we would not accept the need to physically meet in order to sign documents. If they want their affairs run by unanimous vote of a committee that's entirely their choice, but we're not volunteering to be members of that committee. They calmed down, and we have (and are using) a joint and several PoA.

Sorry for the hijack. My ten year experience of caring for parents is that the focus is always on the elderly and their needs. Very little on the needs of those who care. Yet very often parents have stuck their heads firmly into the sand in terms of making sensible decisions for the future, and it is left to others to sort out the mess.

The point though is the same. Your BiL is tight. There are costs associated with caring for the elderly. In my case my parents chose to retire a five/six hour round trip away from me, a journey I was doing, at one point, two or three times a week, along with chores when I was down there. So costs of £100 each time, more now as I tend to stay overnight in a b&b. My high-earning brother was "too busy" to do his bit, yet never thought to compensate his poorer relatives (me!) for the costs they were incurring. Hence my insistence that I would only take on the POA if I could reassure my family that we would not be out of pocket.

Even if your MIL is round the corner, things like hospital parking and petrol mount up. You don't want your BiL to refuse to do his share of the chores because he does not like the associated expense.

I think it is worth discussing the detail before drawing up a POA. If your MIL owns her house, and this will have to be sold to pay for care, it may be that her costs, paid for by BiL in the form of an IOU and properly receipted, might be recoverable from the proceeds of the sale, before SS get their hands on it. Similarly any costs which might help a sale, eg a professional clean or essential repairs. (I dont know for certain.)

It might also be worth talking to SS or Age Concern if having essential repairs done might help her stay at home for longer. There may be charities or grants that could help.

In short it is probably worth an open discussion about things people don't mind doing and things people are reluctant to do, and why, within the context of cash and time available. And then consider options. Setting boundaries at POA stage, in my case financial, has helped me get through this. (I still face another decade, so a new boundary will be a request to the Court of Protection to allow me to liquidate my mother's assets.) Others will have different boundaries, whether it is time, personal care etc. Whatever they are they should be considered, discussed and respected, if family are to be able to work together.

Hatgirl I was sort of responding to the poster above who suggested you don’t have liability for someone’s costs.

You don’t, but an attorney will be racking up expenses of their own.

A lot depends on circumstances, but if there is a lot of capital/income, it is worth discussing the detail in advance of setting up a POA. Especially if the would be Attorney is a tight-wad.

In my case my DMs income is high and her affairs are complex. It is close to a full time job. I don’t actually charge for my time, though the POA would allow me to, but do charge my costs.

She had been strongly advised by her solicitor to put the POA with a senior partner in that firm at a cost of several hundred pounds per hour. This would have been several hundreds of thousands over the past five years. I would like to think I do as good a job, if not better. I am glad I insisted on the ability to recharge expenses and charge for time. Attorneys are legally obliged to manage assets actively. The resentment I would feel if I were also expected to cover the costs I incur, would be huge. Actually I would refuse to do it.

You can write into the POA that an attorney can charge for time and expenses

Yes you can. Sadly however, this is the part of POA that in my experience is most abused, and virtually impossible to do something about even if it is discovered as it can come down to moral judgement/ discretion about what is reasonably included in this, and unless someone else complains then the OPG don't really keep much of an eye on things.

I certainly wouldn't be encouraging a 'flea skinning' tightwad into looking into ways they can cream a bit of additional income off a relative's finances anyway.

You can write into the POA that an attorney can charge for time and expenses.

You don't have any liablilty for someone's costs if you have POA for them. I've had to do it twice. All it means is that since they are no longer capable of managing their own affairs, you are authorised to do it for them - you have access to their funds and pay their bills for them out of their own money etc. Not your own.

I have no costs associated with being POA, and there doesn't seem to be any expectation of what I'll do just that I can act if I need to. When it's signed you decide if decisions can be made jointly or severally, so whether each attorney can act on their own right or if they need to act together. My brother lives overseas so we can act severally which makes things much easier for me, but as pp suggests if there's any question of one attorney making decisions that aren't in everyone's best interests you can chose to act jointly.

"he may have to annually justify to someone where her cash is going,"

Not so in my experience. As far as I can see, OPG only get involved if therre are complaints/quesitons.

So more a question of whether you trust him to be honest. More than one Attorney has been temped by easy access to someone else's money. Just borrow a bit to buy a new car, etc and then not repay.