Power of Attorney question

[timeistight]

My BIL doesn't want to be an attorney for his DM because he doesn't want to get stuck with her care home fees at some point in the future.

I think he's got this wrong. Am I right?

@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.

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.

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.

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.

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.