AIBU my brother is arranging Power of Attorneys that offend me?

[NDFB]

My brother and I are the only two siblings, late 40s/early 50s. About five years ago he unilaterally arranged, without consultation with me, two Power of Attorneys (PoA) for our elderly mother. He appointed himself PoA over her finances and me over her health. Why do this? And why split the responsibilities? We should both be jointly overseeing her finances and her health. Last week, he sent me a PoA to sign (without prior knowledge, again), asking me to be JOINT PoA with his brother in-law, for his own health. I have never met BIL, don't even know his name. And to add insult to injury, brother has already appointed BIL SOLE PoA over his finances! And all this would be to take effect only AFTER my brother's wife has died! So, the scenario is: my brother's wife has died, he himself is mentally or physically incapacitated, eg on a life-support machine, and decisions have to be made regarding keeping-going or switching-off; or maybe brother is in nursing-home care etc. Then, a non-family member is now in SOLE control of my brother's finances; and that same person also shares control with me of his health. It is each person's own right to appoint their own PoA(s), but I will not accept having to share decision-making over eg whether to end my brother's life, or not, or decide on care-homes, with a stranger, the brother of my brother's wife, who herself may have been dead already for many years. Insulting, also that as you see, he has cut me out on both counts of having any power over finances, for either him or our mother, despite my always having been very financially savvy and sensible.

Being POA for health and welfare is nothing to do with having caring responsibilities. It's about speaking on her behalf when she can't make her own decisions about her health and welfare.

In all fifteen years that my mum needed care, I only used my POA when we needed to change my Mum's GP surgery.

I suspect this op has got the wrong end of the stick on pretty much every issues involved here

Quite.
I'm in the middle of sorting mine and my parents did theirs years ago. No one gets to have POA without realising it, no one can be forced to have POA, neither can anyone object if they don't like who the person making the POA chooses to have as an attorney.

Sorry, but you really don't understand how POAs work or the responsibilities for them. He cannot have assigned himself POA over your mother. Only your mother can do that, and any solicitor will have ensured that she was capable of making such a decision when she signed it. You need to discuss these things with her and with your brother.

No one can appoint themselves PoA - your mum will have had to sign agreeing who she wanted as PoA.

OP would have had to be present when the POA was signed by the person it applies to.

if you have any doubts about the POAs legality OP then contact the Office of the Legal Guardian.

He could have filled in the finance PoA forms himself (no need to involve a solicitor) and put them in front of his mother for signing, with some encouraging words. I expect this happens a lot. So OP should contact the Office of the Public Guardian to report any concerns.

It is not the OPs choice , or her brothers choice, about being made POA, it is their mothers choice who she appoints, and she needs to have the mental capacity to do this. And all POA documents have to be witnessed, signed by the person they are for, the “attorney” and an independent witness, otherwise they are not legal or valid.

Just to correct the above post, it's the Office if the Public Guardian. And yes, if your mum wasn't capable of making her own decision, then you need to report your brother's actions. But since you presumably agreed and signed, you're also responsible if that's the case.

POA doesn’t have to involve solicitors.

it can be printed off the internet and done at home.

that’s how Dh’s sibling did it without his parent understanding- gave them a load of documents and got them signed with a friend as witness.

Sorry, office of the public guardian. I should know this having been involved in three POAs recently.

No one can appoint themselves PoA - your mum will have had to sign agreeing who she wanted as PoA.

And no-one can appoint someone else as PoA - OP would have had to sign the application and have her signature witnessed. If she didn't want to do it, she could have said so, and not signed.

Power of attorney may work differently here in the US than it does there, but being the health care power of attorney doesn't mean you have to do any actual caring. You just make the decisions. So if the mother needed care the OP could presumably decide to put her in a nursing facility or hire a carer. It doesn't mean you have to actually do the care yourself.

He could have filled in the finance PoA forms himself (no need to involve a solicitor) and put them in front of his mother for signing, with some encouraging words.

But someone else who knows the mother (but is not a relative) has to sign separately to say she is of sound mind and is acting of her own free will.

Contest it. There’s a people to notify section, you should have been informed. Who did he get as his witness?

Then the OP can look at the form and see who witnessed it. If she believes fraud has been committed then there are processes can be followed. But there's no indication that this has happened, so I repeat, she needs to talk to her mother.

A friend of the brother, who knows the mother, could have witnessed it. It doesn't ensure that the mother actively wanted the POA and fully understood what she was signing.

See @Whatsgoingonherethenagain's post, for example.

She can't just contest it, her mother may have made a choice to appoint her son. Theres non legal requirements for either of them to inform her, and anyway, she has been informed, she was given a copy. She needs to talk to her mother first.

That seems very odd.

I was POA for both my parents. While it was being organised, Dad asked "What happens if something happens to Weary? We don't want to be left in the shit..."

Ergo, we were asked who could be appointed as back-up "whom failing". Dad suggested my cousin. (She was already POA for one of our aunts.) She agreed and that's what happened.

apparently they only witness.

a lay person cannot make the judgement on whether someone is “of sound mind”.

it’s also almost impossible to assess whether someone is acting of “their own free will”. Coercive control is a thing- my in law would do anything their child told her to because she was scared of the fall out if she said no.

so my understanding is any witness can’t be held accountable if the application is fraudulent.

abuse, especially elder abuse and coercive control can be extremely hard to see.

I think you are being unreasonable re your brothers POA- he is absolutely entitled to appoint whoever he trusts. You don’t know his brother in law but your bother does- and he obviously likes him and trusts him to act in his best interests. Whether you know the other PoA is utterly irrelevant when it comes to your brothers choices- because it’s not up to you to decide who he chooses. I think you are wrong to be offended regarding his choices, but ultimately it is up to you and you can chose to decline to act as his PoA if you wish. I think your reasons for doing so would be churlish, but you are under no obligation to agree.

with regards to your mother- she must have agreed to any PoA appointed- your brother could not have done so without her consent- he may have been the instigator of the PoA’s being set up and suggested who was appointed as what, of course. However, the fact remains that your mother must have consented to whatever was in the PoA agreement. She almost certainly has done her PoA via a solicitor, who would have to at least discussed it with your mother, and the solicitor would have to have been satisfied that she had capacity to make decisions for herself. If the solicitor had any doubt, or sometimes if there is a pre-existing diagnosis of cognitive impairment/dementia (you can retain capacity despite this), her solicitor would have sought a medical opinion before proceeding. If she lacked capacity, no PoA agreement could have been lodged and a guardianship order would have to be sought instead.

As regards your role- you can be named as PoA in the paperwork but if you don’t sign the agreement, it cannot be completed and will not be able to be lodged with the office of the public guardian. So, if there of an agreement in place which you did not sign agreeing to the role set out then it is not a valid PoA. If it is signed, but not by you, you need to clarify what is going on. If you signed an agreement sent to you, naming you as a welfare attorney, then you agreed to it. If you weren’t sure what you were signing/did not agree, then you shouldn’t have signed. You can go back and withdraw your agreement and a new person can be appointed by your mother.

She almost certainly has done her PoA via a solicitor, who would have to at least discussed it with your mother, and the solicitor would have to have been satisfied that she had capacity to make decisions for herself*

Why "almost certainly"?

I might be being very cynical here but I agree with some PPs that there are plenty of PoAs signed into existence without the subject having fully understood what was happening/the consequences.

Even if it was a DIY PoA, it still requires an impartial person to have certified that the individual understands what they are agreeing to and have capacity. This person must be a professional (gp/solicitor/ social worker) or someone who has known the person granting PoA for 2 years, but cannot be one of the appointees, a relative (directly or by marriage) of the person granting the PoA nor the representative.

of course, the impartial person could lie. It’s not a foolproof system. If OP feels her mother has been coerced into signing a PoA, or signed one when she lacks capacity to do so, she can raise an adult protection concern with social work who can assess the situation.

Some people on here need to realise that you do not have to have a solicitor to set up POA.

All the forms are available to download on the gov.uk website and can be completed at no cost and no necessity to involve solicitors at all. That is how I'm doing mine. All you then pay is the fee to lodge them.