Enduring power of attorney/vitriolic mother/brother with learning diffs (sorry long)

[GiveMeStrength2day]

I fell out with my VERY difficult adoptive mother (let?s call her M) about 10 years ago. I have no intention of ever speaking to her again. She and my adoptive father divorced a long time ago and he has since died.

I also have a brother ? M?s natural son (DB). Due to complications during birth, DB was born with cerebral palsy ? this resulted in severe physical disability and fairly severe learning difficulties. He currently lives in residential care. He is scared of M due to her constant need to cause arguments with his carers. However, M would never allow him to cut contact with her.

She has now ?disinherited? me by way of enduring power of attorney ? I knew I would never inherit any money from her (she does have a fair bit!) but I was gutted to receive this notification from her solicitor as she clearly thinks I?m as vile and vindictive as she is (you?ll have to take my word for it that I?m not) ? I received it a few months ago at a time when I was very ill and at a low ebb and, even if I did have a leg to stand on, I only had 5 weeks to object so I?m well out of time. She has given ?power? (sorry don?t know the technical term) to her hairdresser!! This is someone she has known for a while but I can?t honestly say she is a friend (I?ve never met her). I?ve found out that this hairdresser has now been attending DB?s review meetings with M.

So, to at long last, get to the point! If and when M gets to a stage where the power of attorney kicks in (I assume dementia ? I don?t know if she has actually been diagnosed with anything) how much does this have to do with DB?s future? Ie. Does the hairdresser get more say over what happens with DB than I would (as his sister)? And does PoA die when she does? Ie. then the hairdresser can just walk away. I can?t see this hairdresser EVER having DB?s best interests at heart and I?m horrified at the thought of being sidelined.

Also, when M does finally die, do all her ?wishes? die with her? For example, I know she?s bought a grave plot for herself and DB. Assuming she does die first, I could not put DB with her. What would I do ? take flowers for his side and then spit on the other?? The other thing though is that as she clearly isn?t going to leave me any money but will, I assume, leave DB money in a trust ? can she still have a say where that money goes when he dies? DB would not be capable of making a will. The money part isn?t important although I?d love to be compensated for being put with M!!! That said, if she could put aside her (completely unwarranted) hatred for me and saw the bigger picture she would realise that it would be actually be hugely beneficial to DB if she were to have left me half her money (ie. 50:50 me and DB) as I would have sold my current house and put that with inheritance towards buying a suitable house where DB could have a permanent bedroom - not to live in (he is happy in the carehome) but to have as an alternative base with the appropriate facilities (at the moment, if he stays with us, he?s in the guest room and our house is not disabled-friendly). Anyway, that?s not going to happen.

I?ve tried speaking to the carehome manager but I don?t get much response ? all staff are frightened of M. I?m so upset about this ? I don?t, in all honesty, deserve the spite and vitriol that M gives out to me.

Sorry this has turned out a lot longer than I?d intended but I wanted to include as much info as possible. Just to reiterate, I am resigned to the money bit but I am extremely concerned about DB?s welfare and future.

Can anyone help please?

Sorry just noticed that, as I'd typed my post in Word first, some of my punctuation has turned into question marks! Hope this doesn't make it too difficult to read

Anybody?

What age is your DB? If he's adult, then I don't think anything about your mother's power of attorney would affect him, apart from the fact that the person who has POA could potentially be spending your mother's money unwisely if/when your mother does become unwell enough for the POA to kick in.

Overall though, I think you really need to get proper legal advice about your brother's situation, from either a lawyer or the CAB.

DB is in his 40s. The fact that M is bringing the hairdresser to DB's review meetings indicates to me that she's trying to get this person involved with DB's future care requirements etc and that's what is giving me major concerns. If she misappropriates or fiddles any money out of M, well that's her problem (well, it could ultimately be DB's problem for it's his inheritence) - for what it's worth I would never have done that (irrespective of my feelings towards her). It galls me that a "stranger" might have any authority over DB.

I don't think the hairdresser would be quite so helpful if she was aware of what M has said about her husband in the past!

I think you're right that I'm going to have to consult a professional about this. I just don't want to start anything, eg. a solicitor writing to M because that will stir up an unwanted hornets' nest.

You don't need to do anything which would let your mother know about the advice you get - just so you are clear what she can and can't do, then you can decide what if anything you need to do about it. FWIW I don't think she can "give" this woman any authority over your brother's care, but that's just my own opinion and not proper legal advice.

Thanks AMum - what are your thoughts about the shared grave thing?

There can't be any legal requirement for you to bury DB there when the time comes. Assuming you are his next of kin, then it would be up to you to make whatever arrangements you choose at the time. Imagine - someone could buy a shared plot for himself and his wife, but then there's a messy divorce, and she remarries. When she dies, nobody could force her new husband to use the plot next to her first husband. Whoever is next of kin at the time the person dies gets to arrange the funeral. If there's a plot that's been bought and is available and you want to use it, that's fine. Otherwise you buy another plot, in a whole different cemetery if you like!

You've completely misunderstood what a Power of Attorney is, OP.

Your mother has not disinherited you by making an LPA. There are 2 types, a Property and Financial one, and a Health and Welfare one. Most people just do a P&F one (let's call it a PFLPA).

By making a PFLPA, all that your mother has done is appoint an attorney to look after her finances if she ever loses mental capacity.

It has no effect whatsoever on her relationship with your brother. She is still his next of kin and still responsible for making decisions about his care etc.

If she ever loses capacity then the PFLPA will kick in. Her attorney (the hairdresser) will do things like manage her pension, sell her home if she has to go into a home, pay her bills etc.

If your mum made a Health and Welfare LPA it would deal with her care and medical treatment and has nothing whatsoever to do with your brother.

The reason that you have been notified is that she has chosen you as a Person To Be Told. This is someone who is able to object to the registration of the LPA if you think that it is not in her best interest, eg if she has already lost capacity or if you have reason to think that the attorney is forcing her to make an LPA and will rip her off.

Everything you say about your brother is, to be blunt, sorry, totally irrelevant to her making an LPA.

Hope this clarifies.

btw I'm a will writer and make Powers of Attorney for people.

I probably didn't explain myself properly whilst trying to include as much info as possible. To be fair, I hadn't misunderstood what PoA is. I did realise that it was to look after M's finances and, in my opinion, it was done to cause me further pain (twisting the knife). However, I think the waters have been muddied with DB as a factor. I'm getting concerned as M is involving the hairdresser in DB's review meetings etc and this, to me, says she is also wanting the hairdresser to represent her (ie. M) with his welfare if and when she loses mental capacity.

However, if, as you say, the PoA has nothing to do with my brother then I'm relieved. If M wants some random hairdresser to manage her finances etc then on her head be it. I was just concerned that in bringing her to meetings she is also trying to get the hairdresser to take over M's responsibilities should the need arise.

And re her will. Even if she puts in her will that she wants my brother buried with her, that cannot be enforced? Albeit if she's dead she won't be able to do much about it!

Could you also tell me what the situation will be with regard to my brother's "estate" should he die before I do (but after M). As his sister I know I will be next of kin (once M is dead) but he does not have the mental capacity to write (or even know what it is) a will.

Many thanks

If he does not have the capacity to make a will, the Court of Protection might become involved. This happened to one of my relations who came into some money. He never would have been able to manage the money in any way or instruct a solicitor to write a will. Long story short, he now has a will and the money is used to help pay for his carers.

Does your brother actually have an estate? If not, there's no issue, surely?

If your mum has made a will I would expect her to have been advised to put your brother's share in a discretionary disabled person's trust.

And no, the LPA, as I say, has no effect whatsoever on your brother's care.

Out if interest, and I suspect this is wht the op wants to know, if her mother loses her marbles, who would then act for the brother, as presumably the mother wouldn't be able to?

Then either the OP or some other appropriate person would apply for a Guardianship order

Well, I think he has some savings in his bank account. I am also assuming he will be a beneficiary (if not the sole) of M's will (I'd guess she'll be leaving the hairdresser a few quid!). I must stress again that money is not my motivation. However, in the cold light of day if my brother has money to leave can M's will influence this? Or basically once she's gone she's gone and has no further authority over the money even if she puts it in a trust? Because I can, for example, see her trying to get his money left to the charity that runs his home. It is a huge national charity so whilst I'm sure they'd appreciate a new minibus for my brother's home, we are actually talking approximately £300,000 (assuming M's money isn't frittered by the hairdresser or used for her own carehome fees if required). This is going to sound like I'm contradicting myself but I would like to think my DD would at least benefit. Of course, my brother could outlive me - I'm not sure what Plan B would be about that! I assume my DH would takeover my responsibilities to him (or DD if she was old enough at the time).

Yes titchy - I would feel comforted to know that if M loses her marbles(!) will the responsibility of my brother's welfare immediately fall to me. That is what I think should happen and I want to happen. Mumble - so are you saying that M cannot include my brother's welfare in her LPA or anywhere?

X-posted there!
Right, so the Guardianship order. Could the hairdresser apply for that?? M could have told her "I don't think GiveMe will act in DB's best interests, so while you're managing my finances I also want you to apply for guardianship"? She will be saying this out of spite as I cannot believe she would truly think I wouldn't take the best appropriate care of my brother's welfare. So if I've assumed that the hairdresser can apply would a court hear both applicants (ie. me and her) and decide?? I'm pretty sure I could get several people (including the carehome) to stand up for me if necessary.

"Mumble - so are you saying that M cannot include my brother's welfare in her LPA or anywhere?"

That is correct.

Part of the process of a guardianship application involves assessment by the local authority social work department as to the suitability of the person who is applying for guardianship.

Having PoA for your mum gives the hairdresser no powers over your brother.

Ok that gives me some comfort. Although why the hell is M taking the hairdresser to DB's meetings . It seems to me she THINKS the hairdresser is going to be involved somehow. Well, she can beggar right off and take M's money with her!! Incidentally though, can M dictate what happens with DB's money that will be in trust?

Why do you keep calling her the hairdresser? She's obviously a close friend.

What money in trust do you mean? Do you mean if she dies and puts your brother's share into trust?

Right, I've just reread your OP and so I think I've answered my own last question.

Of course your mum can specify the terms of the trust (or "dictate" in your words); it's her money. She is likely to have been advised to set up a discretionary disabled person's trust, partly to avoid your DB being targeted by people who are after his money, and partly so that he's still entitled to means tested benefits.

Whoever the trustees are have responsibility to administer the trust in a way which benefits your brother. If you aren't named as a trustee then you have no right to interfere, unless of course you believe that the trustees aren't carrying out their duties correctly.

mumble - I call her the hairdresser as that is what she is, M's hairdresser!! Given M has alienated any family she has left and any friends she may have had, I'm guessing the hairdresser is the only one who will speak to her.

Yes, I suspected as much re the terms of the trust. This will be so I cannot in any way access my brother's money - I wouldn't do that anyway. It is frustrating and upsetting that it has come to this though.

Please believe me when I say I don't think I deserve all this. Not sure why I needed to say that but, as I said, I'm upset.

Throughout this post all I hear is about the money, each time coupled with a denial about wanting it. It seems to come before your DB, even in ur OP you say u shud be compensated for having her as your mother.

What is likely to happen is that your mum will leave a trust fund, with instructions to pay for your brothers care and needs throughout his life. At his death any remaining trust money should pass to X (whoever or whatever organisatio she chooses) as it has been her money.

If you are only worried about your brothers money, Rest assured noone can waste ur brothers money. If you are concerned about what share you're going to get your hands on, you are probably not!

holidaysarenice - I'm fully aware I won't be getting any money
I asked for advice not judgement - this is not AIBU