Joint and several POA? What happens when they disagree ?

@BlueLegume I hope you’re okay after being driven into and shouted at (and I’m sure the LPoA will be tearing their hair out about whether their father should still be driving and how hard that is to sort out because ‘capacity’).

@rickyrickygrimes I have found reading blogs on open justice in the court of protection helpful to understand processes and feel prepared. My siblings (jointly and severally on both LPoAs) are thankfully amazing but do look to me to lead, which can feel like a lot of responsibility. Although I doubt my family would disagree, there is a significant likelihood of conflict on DH’s side.

I hold joint and several PoA for my elderly person. I think it's all about how functional your relationship with your joint apointee is. And that this should have been considered by the person asking you to share the role.

I do most of the day to day stuff. My DBro is the other attorney and we are close. I consult him on big stuff but not day to day. He is sensible enough to recognise how much I do (from 400 miles away) and only offer comment if he thinks it's really important. For huge decisions we have a third sibling (not an attorney) we can loop in for input.

Thus far we haven't really come into serious conflict.

TBH the biggest issue is nothing to do with attorney conflict and all to do with conflicting values with the person we represent. Our branch of the family tends to value quality of life over anything else (my dying gift to my father was to negotiate sensible treatment ceilings for him and he got an objectively good, not very medicalised death) whereas the person we are attorney for thinks no-one should die ever. Better to be alive restricted to a hospital bed on masses of intervention and fully dependent on external care than dead.

It's hard to advocate for this when you fundamentally disagree, but I do, as it's not about my decision making but what the appointee would have wanted.

A letter of wishes kept with HW LPA would have much the same effect as a preference is only guidance for the attorneys, not legally binding. And it means you don't have to redo your LPA if you change your mind. Attorneys should pay just as much attention to a letter.

Doctors often leave very very detailed letters of wishes outlining decisions they would like their attorneys to make in various circumstances! Most other people leave the preference box blank or just put one line re life sustaining treatment to help the attorneys make decisions.

DH and his sister were in this situation and it has ended horribly, with the 2 of them no longer speaking. I can't begin to describe everything that happened as it would take me ages to type it out, but it was truly awful. MiL passed away a while back and they are still at loggerheads via the executor.

@rickyrickygrimes its bloody awful, you need the patience of a saint and ££. The key is to take the high road every time and to keep accurate records.

Ultimately you can apply to the court of protection regarding property and finance and this can be for one off decisions, or to remove a PoA. WRT Health and Welfare it’s building a relationship with medical professionals etc. so they keep you informed.

The key is to always work in the EPs best interests.

Id reiterate it's not 'court' in perhaps the way you think of it. There would be statements from professionals and evidence of multi disciplinary meetings etc

POA is only 'activated' if the EP is deemed to not have capacity. Capacity is situation specific. A person can have capacity over their finances (IE they still understand how to use money) but not have capacity over where they want to live (because they are putting themselves at risk.
Should the appointees disagree then it gets passed to the office of public guardian and ultimately if they still decide to disagree after intervention/mediation then a 'best interest' decision would be made. For example for health and welfare one person vehemently defending that the person WILL NOT be going into a suitable care placement and by doing so putting the person they have the POA for at unnecessary risk to themselves and others. It does happen but not that often and tends to be when one POA is obviously misusing the finances etc. Most health and welfare disagreements can be decided by evoking the best interest decision before it goes as far as the office of public guardian because often the professionals are working in a very restricted time frame and the risk to the EP is too great. POA can also be revoked and the office of public guardian would take over the EP's affair (though again unusual with a health and welfare issue)
As adults you would hope that neither person takes up a stance that's to the detriment of the EP.

I do hope people watching this thread take heed. My parents insisted they trusted us on decisions re their long term care. They even stated they never wanted to be a burden. I organised the whole LPA thing for them. They did nothing other than the signatures. Historically they ‘don’t do admin’.
I’ve organised all my own LPAs because it my responsibility.

A man in his 80s reversed into me this afternoon. He clearly was in wrong. Apparently I was the problem as he pointed his finger at me and informed me his daughter had health and welfare power of attorney for him and he would be making sure I was taken to court.

The healthcare POA has a section for things attorneys must or must not do (e.g. consent to particular medical procedures in particular circumstances), and also a section for preferences (e.g. your mum may prefer not to move to a care home).

These sections can be left blank, but if they're filled in then it could be really useful to guide the attorneys and remove some sources of disagreement.

(Something like preferring not to move to a care home could only be put in the preferences section, rather than the obligatory section. This is because the attorneys may not have the power to make it happen, as @Soontobe60 says. If in doubt, you might need a solicitor to talk through which preferences/choices to put in which section of the POA form, and how to word them legally.)

I know that all this would be a pain to set up, because you would need a whole new POA set up if your parents' preferences aren't on the form already. But if you're worried about disagreeing with the other attorneys then it could be worth doing.

Then your DM needs to make sure her wishes are detailed in the LPA so that it’s clear. However, there are times when her wishes could be overridden - for example if she states she does not want to go into a home but then loses capacity with no ability to take care of herself then unless you or your sibling were willing and able to look after her full time, she would have to go into a home. Social services would make that decision.

You are clearly a very caring person and it sounds as though you're at risk of burnout.

Taking on everything for your DM is dangerous both for you and for her. Your physical and mental health will probably suffer. And what happens to her if you burn out (or are incapacitated for some other reason - taken to hospital after an accident, or something like that)? There comes a point when an EP needs professional care and welfare services in order to ensure continuity and cover absences and illness. Relying on just one or two people is unsustainable.

Thanks @Reddlo I really like the way you have worded that. Really needed that as much as I try I am constantly overthinking how I can help her. Genuinely appreciate that succinct response.

Honestly I don't know. I only know the theory, because I suspect we're going to need it in the future. Sorry!

But to reiterate:

• having capacity to make decisions for yourself as an EP does NOT give you the right to make decisions for anyone else (e.g. your daughters)

-POA is kind of irrelevant in your current situation because your mum is deemed to have capacity. And if she has capacity then she has responsibility for handling the results of her own decisions.

Thanks @Reddlo I guess I know this I needed it spelt out. What’s the reality of SS getting involved?

If the EP is deemed to have capacity, then she can make her own decisions. BUT the daughters can also make their own decisions (i.e. not provide these services), and make it clear to the EP and to social services and anybody else that they won't be doing it (or will provide only strictly limited and defined services of their choosing).

At that point, sadly, the EP needs to be left to sink or swim according to their own decisionmaking. It's grim, but sometimes it's the only way. If things deteriorate and they are deemed to be neglecting themselves then I think social services can get involved whether the EP wants it or not.

Because I know my sons are likely to disagree, I added a third attorney, and I’ve spelt out to them all that it’s a simple majority vote.

If she has stated that she does not wish to be placed on life support on her LPA form, it doesn’t matter what the attorney thinks. Ultimately, the decisions for these things lay in the hands of the medics anyway.

How does the Health and Welfare work when there is so very clearly a need for intervention but the EP is deemed to have capacity, is making terrible decisions and choices which impact the family named on the LPA? There are no stated wished on the LPA just verbal at time of doing - ‘oh I know you will make the right decisions for me’ vs the reality of now which is ‘I don’t want that/won’t have strangers in my house/I have daughters who can clean/cook/do washing’ ( reality being …cleaning doesn’t meet high expectations/cooking is bland/too salty/fatty/spicy; washing on a quick wash means it isn’t clean needs a full 3 hour wash and you are expected to stay). This is a woman who did nothing to organise the LPA at all. I did it. One sibling doesn’t want her in any facilities that cost. I would happily just suck that cost up.

It’s about practicalities. You’re not in the UK so I would assume you only see your parent every few months, whereas your DSis may well see them weekly.
my DH and his brother had LPA for my MIL. BIL lives a 10 hour flight away and returns home on average every 5 years. In practical terms, both DH and myself did all the donkey work. When it came time to make decisions, we made them and informed BIL. When he didn’t agree with his decisions, DH asked him if he was prepared to move back here to do all the hard slog. Surprisingly, he didn’t respond. He eventually returned for the funeral, which was 3 weeks after she died.
I think your sibling has the final say here.

I have wondered about this. My sister and I have POA for our parents and can act jointly and severally. However, I think a dispute is very unlikely in our case.

A quick google suggests that if the attorneys really can't agree, then there can be a deadlock and the donor's affairs just stop being managed at all, which sounds grim. You might need mediation to help you reach an agreement, or a court might need to decide what's in your mum's best interests (which is always going to be the gold standard for decisionmaking).

But what this means in a case where there's an urgent medical decision to be made, I'm not sure. Presumably a doctor would give an opinion on the best course of action and you would need a good reason to disagree with it?

In theory, all decisions (especially major ones) should be discussed between the attorneys. In practice, if you have "joint and several" powers of action, then I suspect that doctors or social services or banks would take the word of either one of you and act on it. If you live abroad, then you might be reliant on a sibling to even tell you that there's a decision to be made in the first place, iyswim. Would they definitely tell you, or might they just make a decision unilaterally, if they think you might disagree? It may be that having a POA which requires the attorneys to act jointly (not severally) might be better in your case, although obviously this can be more cumbersome.

The court will decide which course of action should be taken.

My MIL has appointed all 3 children POA for money but only my DH as health and welfare and wants him to switch machines off if at that stage. She knows her DDs will not. So he is sole POA in that situation with a friend the replacement attorney should he predecease her.

Legally all are equal.

Ok, then theoretically the person who is doing the task/organising gets to be primary, taking the other persons views into consideration, but not having to agree with them. No one gets to dictate the work/care another is doing. If you want it done differently and you care about it that much, you do it.