Was I wrong to borrow from my mum's account and repay it?

[Acaciagirl]

Hi,
im 46 divorced and spend a lot of time looking after my mum. She’s 80 and has some issues- mobility etc. she’s also getting confused over things- this being investigated.

I have power of attorney over her money and health. She has a property worth 300k ish mortgage free, about 200k saved and a very good monthly income,

I struggle financially and have, on occasions borrowed from mums account and then paid it back asap. I’ve not asked mum beforehand as she’d worry however I know that she would always help me.

I mentioned this to a friend who said that what I’ve done is terrible and that I should be ashamed. I feel awful now. I’ve never taken money with the intention of keeping it, I’ve only ever borrowed. How do I live with myself now.

Sorry but it’s definitely wrong and it’s theft.
You needed to ask your mum for help; you’ve abused the fact she has trusted you as POA.
My mum would be devastated if I /
someone did this to her. I’m shocked you think it’s ok!

You think that spending £3,000 (the amount suggested) would be seen as in accordance with previous giving, when the OP has said that her Mum helped her out financially a long time ago but not recently?

I agree with your friend, it’s terrible and you are stealing - even if you do pay it back. Read the POA documents.

You say she would tell you to take the money, yet you haven’t even asked her

As others have said, keep notes of what you took (borrowed) and when you paid it back. Don’t do it again without asking her because you could find yourself in trouble.

Op said in her post her mother was confused so it's likely her capacity is in doubt. As pp said she has to ask the OPG for approval not her mother, and I doubt they would agree as it's a clear conflict of her duty as an attorney.

To those saying she could still get into trouble/the friend might report it. Yes, but it's unlikely. The OP realises she was wrong, she isn't going to do it again, there is no point piling on the agony for her.

Agreed. But she does need to realise that if she listens to the people that tell her it's fine, her Mum would want her to be happy, and that she's done nothing wrong, she could get into serious trouble.

It isn't kind to tell someone something that you think should be the case. The rules are very clear.

I don’t think you should be ashamed - that’s really harsh of your friend to say. You borrowed it and paid it back, it’s your mum. Maybe the rules say it’s wrong, and that’s to protect vulnerable people, but what you have done in your personal situation isn’t evil.

If I were your friend I would have just told you to be careful you weren’t breaking the rules as I wouldn’t want you to get into legal trouble. I wouldn’t have wanted you to feel shame. I can’t imagine wanting to make someone feel like that unless they were just helping themselves and keeping it.

“Financial abuse is a form of domestic abuse under the Domestic Abuse Act 2021 (DAA 2021). It is referred to as ‘economic abuse’ and is defined in section 1(4) as ‘any behaviour that has a substantial adverse effect on B’s ability to:

• (a) acquire, use or maintain money or other property, or
• (b) obtain goods or services.”

There’s no indication at all that there is any adverse effect on ‘B’ (the mother) much less a substantial adverse effect - she doesn’t know!

This is my area of law OP. You are not allowed to do this at all (only cover reasonable expenses and perhaps birthday gifts if she usually does this). Taking money from her account for your own use is strictly forbidden and an abuse of the LPA. If someone reported you you would be investigated and removed as attorney.

Also, as attorney you MUST keep accounts. How are you going to account for these payments?

You HAVE to keep accounts anyway. You absolutely must. As an attorney you could be asked to provide these at any time.

No, it doesn’t mean that at all. If the donor consents, an P&FA LPA can be used at any time.

NOT TRUE.

Well it very clearly falls within (a) because money taken from an account is then not available.

There are sufficient authorities reported which establishes it clearly falls within the scope of that law alongside various others.

Again; because you clearly don’t understand LPAs, an LP1F can be used before capacity is lost, if the donor has consented to this. The OP’s mother can be fully capable but still wish for the LPA to be used to help her, for any reason - perhaps she just can’t be bothered to deal with some of her affairs?

The LP1H can’t be used until capacity is lost.

Not as LPA but you do as a Deputy. Two different things.

It's out of order that you don't ask permission. POA doesn't give you the right to help yourself whenever you've a cashflow issue.
Why not just say 'Mum, I'm a wee bit short, nothing to worry about but we had the broken fridge (or whatever expense you had), so can I borrow a couple of hundred til payday?' and surely she'd say yes?
I know you always pay it back but I just think it's an abuse of trust really.

My mum in her 80s also has mobility issues and I have access to her bank account. But I would always ask to use her card/account if I needed to. Very occasionally I do ask to get some food shopping or something. She would never say no but it would upset her if I just did it without permission. Even if I had POA.

Yes I agree.

I was attorney to my mother for ten years and was very scrupulous.

You have to act in the person's best interests and the OP should have known this already. At least she now realises and will be acting in accordance with the rules in future.

You know you shouldn’t have done it OP. And the law is not on your side here. when a POA is activated, as soon as you start doing things that are to your own benefit you’ve crossed a line. You’ve been treating the money like it was your own, and once you factor in the elements of temptation, desperation and opportunity it’s like a scenario in the fraud training at work. I actually know someone who got a suspended sentence for doing what you’ve done - also he had paid it back. It was fraud act (S4 fraud by abuse of position) not theft act. Even if you ask her and she says yes, the fact a POA is in play at all scuppers that as a mitigation.

It's not an abuse of the LPA because it doesn't sound as though your mum has lost capacity regarding her finances. However it is an abuse of her trusting nature.

You need to learn to manage your finances better. Ensure you are receiving all benefits you are entitled to.

To put it bluntly, if you take out £x and she drops dead the following week, you're going to have an awful lot of explaining to do.

It does not clearly fall within (a). Borrowing £10 from a millionaire would not have any adverse effect. From the OP’s retelling there has not been any significant adverse effects - she doesn’t even know.

It is abuse of power and of the POA - but it’s not domestic abuse. If this was in my court, I wouldn’t not be thinking the OP was guilty.

Presumably the OP only has access to the accounts by virtue of the POA? Otherwise it’s outright fraud as she’s pretending to be her mum to access her accounts.

But she is acting as an attorney. Doesn’t appear mum has said yes or even knows about it.

I am acting as attorney for my DM and started acting before her mental capacity deteriorated. As an attorney I can’t just go into her bank account and take money for myself, even if she was happy for me to do so

This is incorrect! A POA is registered because someone has lost capacity!

You can’t then say she’s got capacity to gift if she’s lost capacity, it’s not pick n mix!