Joint and several POA? What happens when they disagree ?

[rickyrickygrimes]

Inspired by another thread on here, I’d be interested to hear how disagreements between attorneys are resolved when they are equally responsible but can act independently as well?

My sister and I have this arrangement for our parents, and my DH and his sister with their dad. In some ways it’s really practical - DH and I aren’t in the UK, so it means our siblings would be able to make decisions and act quickly if needed. But my sister and I often disagree strongly on lots of things. What happens if we completely disagree on some aspect of our parents care / finance in the future? Is it whoever gets in first ? Whoever has the ear of the other parties like medical / social services? How does it work in practice ?

TBH the Health and Welfare one is the part that has caused us the most hassle. As siblings we know our mother requires help maybe even residential care but she is deemed to have full capacity so we can’t do anything she “doesn’t want’ despite her actions splintering our relationship irreparably. We disagreed on a situation with our father some years ago too but I was fortunate enough to have the involvement of a supportive HCP who invoked a DoLs which took away our decision making. Thanks for the thread I will follow with interest.

I think you have to let the sibling 'on the ground' make the decisions if you disagree. You can't reasonably dictate from afar.

If you can't agree you need to go to court.

Even if the geographically nearest sibling is making decisions not in the best interest of the EP?

But maybe on the ground means the sibling most involved in care? I don’t think POA designates a primary and secondary attorney though.

Yes, I really mean the sibling most involved in care.

I have a friend where the sibling swoops in for a couple of days every 6 months and interferes and criticises without being regularly helpful themselves.

I guess it also depends whether it is objectively not in the best interests or subjective. It is easy to say 'this should be done' but if the old person themselves doesn't want it and the other sibling is siding with the old person....

For us my sister lives closer but I am arguably closer to my mum - we’ve spent a lot more time together over the years despite living further apart. So I don’t think it’s just about distance.

Who is doing most care right now?
Who organises doctors appointments, sorts cleaners, pays bills, liaises with visiting carers, drops everything if parent needs to go to A&E?

Neither of us are doing any of it just now - for me it’s theoretical, Which was my question - I’m interested in how other families have dealt with disagreement when it did arise.

What is the aim of going to court ? One attorney trying to remove the other?

Ah OK. For me then the person actually doing most of the care morally gets more say.

Im not disagreeing with you btw, DH defers to his sister all the time because she’s ‘On the ground’ for sure and he respects that.

there’s nothing in the POA to back that up though is there ? All attorneys are equal in the legal sense.

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.

Legally all are equal.

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.

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.

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.

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.

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.

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 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.

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

Like I daid, it’s theoretical for the moment. My sister lives 2+ hours away, and visits monthly at most. Plus it’s very ‘surface’ when they do (is how my sister describes it - they eat nice food, drink wine, stay for one night etc). We live two hours flight away, but for the last 20 years have spent at least 6 weeks each year on holiday with my parents, including staying with them every summer and Christmas. Mum and I have become very close as result (DH and the boys go off fishing / chopping wood etc with my dad) and we do talk about their future. This might all change as they age, but it’s not as simple as the geographically nearest knows best.

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 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.

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.