Lasting power of attorney issues. Attorney disagreeing with preferences.

[fortheloveofgodmary]

What happens if an attorney to be disagrees with the donor's preferences. The attorneys was originally completely against seeing a solicitor because of the cost.. The LPAs were completed and sent off but since then the donor has changed their mind on several things. Now another sibling has been added(me) and one of them is saying a solicitor needs to be consulted because of the donor's preferences and possibly for the solicitor to be the attorney. They have not given a reason for this when asked and just say a solicitor needs to be seen. They are saying only them and the donor should see the solicitor and not the other two attorneys. It's all about the preferences but they won't explain what the issue is and have become quite unpleasant about it all. They are saying this is taking too much of their time and I'm concerned how they would manage to be an attorney if they are struggling to find time to discuss this between the four of us.
A solicitor has been approached and gave some advice but they only offer a complete advice, prep, registering the LPA service, they don't do just advice. I don't know if that's a common thing. The solicitor said straight off that this could be done without using a solicitor. The solicitor gave advice on the instructions and preferences section and clarified a few things and that was all that was needed so we thought. Now the other attorney is not happy and I'm not sure where we go from here. It's very clear now that this would not be a team thing. Any advice would be much appreciated.

Health and welfare or financial LPA?
Does the donor still have capacity?

For a health & welfare LPA, the attorney has no powers until the donor loses capacity.

For a financial LPA, the attorney can make decisions while the donor retains capacity, but only if the donor gives permission.

TBH, if the attorney is disagreeing with the donor and the donor still has capacity, this would raise major red flags for me and - if I were the donor - I'd be looking for another attorney. The whole point of holding an LPA should be to try to carry out the donor's (reasonable) wishes.

Yes the donor has capacity. There were questions over that but the confusion was because the big guide to making an LPA hadn't been given to them to read so they didn't really understand. They now have the guide and all is clear.
I don't understand how having preferences makes things difficult. Is that a thing? Realistically most things would fall to me for the day to day stuff of both finance and health because I'm the most involved. The attorney has the issue with finance only.

There are no instructions at all. Just preferences.

If the donor has capacity, the have expressed preferences and a attorney disagrees I'd remove that attorney

That is fine, and actually better - as long as you have an attorney you can trust. It's hard to anticipate everything that may happen in the future, so it's good to give your attorneys freedom to act in whatever your best interests are - and your instructions are not (in most cases) legally binding on them, in any case. Their legal obligation is to act in your best interests, once you lose capacity, not to follow exact instructions (some exceptions). While you have capacity, the attorney must follow the donor's instructions.

However, this does make the trust relationship absolutely crucial.

If you can say without outing, what is the nature of the disagreement? If it's something fairly technical (e.g. donor wants ISA A, attorney says ISA B is better) then that's probably not a worry. But if it's something more fundamental - e.g donor's wish to stay in own home - I would be concerned.

The donor has used the example in the guide of wanting their GP to be the one to decide if they are capable of living independently before any decision is made to sell the house. The attorney isn't happy about this but they seem unhappy in general and want to see a solicitor with the donor but to exclude the other two attorneys from that meeting. The donor says all of us should be there. That's the bit that doesn't sit right at all out of all of it.

Speaking as a GP, their GP is highly unlikely to agree to do this! It's normally a specialist opinion (geriatrician or psychiatrist) because of huge implications for the whole family - not just the patient but their heirs and attorneys too.

However, that's not really the point - the point is the conflict between the donor and the attorney. This needs to be bottomed out. Maybe the attorney just realises that the GP probably won't agree to make this assessment, and wants a more feasible plan. Or maybe there is a fundamental disagreement.

A meeting with the solicitor sounds like a good idea, and it is a positive sign that the attorney wants to do this. But I agree with you that all attorneys should be present.

Perhaps it could be changed to doctor instead of GP? This is just one of the things they were unhappy about but I think it mainly boils down to them not wanting me to be an attorney but they won't expand on the issues they have at all. Suggesting a solicitor be the attorney doesn't make any sense. There isn't a family solicitor who has known the donor for any length of time so how would they make any decisions in their best interests? Attorneys 1 and 2 are happy for attorney 3 (me) to be doing all the day to day care and financial stuff now as I have been doing for the past couple of years but they don't want me to be an attorney. I see the donor daily and am heavily involved in their life. 1 sees the donor every couple of months and 2 sees the donor every couple of weeks. They don't have the time to be involved any more than that so I wonder how they would find time to perform any attorney duties. The donor is concerned about this too.

The person who has day to day responsibility for the donor should definitely have POA, unless there is a particular reason not to do so (e.g. history of gambling etc). Otherwise your life will be 10 times harder and you will constantly be walking a tightrope between trying to do your best for the donor vs not upsetting the attorneys.

If they are concerned about you having too much control because you would be both making day-to-day decisions and having power over bigger decisions, there are ways to limit your power appropriately. For example, it could be agreed that spending decisions over £5,000 would be agreed by all attorneys, other than in emergencies. The solicitor can advise on this.

The preferences are that 1 and 2 see to the big stuff like care home fees and selling the house and 3 does the day to day stuff like shopping, paying bills for the window cleaner and gardener etc. 1 and 2 are too busy to do any day to day stuff.

I thought from doing our parents that the whole idea was for attorneys to enact the wishes of the subject of the LPA. If the attorney is in disagreement with their wishes they need to be removed as that undermines the whole point of it. The parent in this case definitely needs to understand what they are signing and it sounds as if they didn’t from what you say.

Have you activated the LPA?
This is not often done until they lack capacity.

Originally the donor was not provided with the guide to make an LPA and trusted what the attorneys were saying about it being lengthy and not needing to read it. Then when questions started being asked by me the donor couldn't explain anything or remember what they'd signed as they weren't given a copy of the completed forms and it was rushed without time to discuss things properly . Now they have all the information and it's been gone through thoroughly and advice sought from a solicitor. The donor was finally clear on everything and happy with what was in the LPA. Now the original attorneys have said they are not happy with things but aren't prepared to discuss it. There is also a big push not to have a funeral despite the donor being very religious and a church funeral being important to them. The whole thing has become unpleasant and stressful with the donor worrying about everything and not wanting to upset the original attorneys.

It's not even drawn up let alone activated! All the preliminary work has been done and written up in a word document ready for putting on the forms. This was after days of discussion with the donor who then sat with me as I typed it all out and trie checked their wishes were accuratly noted down. The attorneys wanted this information so I sent it them and it's all kicked off at that point. The donor has capacity at present with no signs of losing that although I know things can change but for now they are completely with it.

If you were in the donor's position what would you do? They don't really have the money for a solicitor for a start.
The OPG could be contacted for advice on this as they have offered before. They aren't quick to reply but they do reply.
One thing that bothers me is that attorney 1 is always too busy. Too busy to answer an email for over a week for example. It doesn't bode well for when they need to carry out their duties.
The donor has been losing sleep over this and was in tears yesterday morning because of attorney 1's attitude and demands. Attorney 2 has just ignored all communications about it.

I would end the existing LPA and start a new one. Ending the existing LPA is easy. The donor doesn't need a solicitor to do this. They simply need to sign a deed of revocation and send it to the OPG with the original LPA. You can find the details, including the required wording, at Make, register or end a lasting power of attorney: End your lasting power of attorney - GOV.UK (www.gov.uk)

The original never made it to being registered and the donor told the OPG not to register due to never having read the guide and feeling pushed into it. Attorney 1 was the one pushing for an LPA to be made. It smacks of coercion to me especially now attorney 1 is demanding the donor see a solicitor without the other attorneys present. So there's currently no LPA in place. Practically I don't see how attorney 1 can carry out their duties because they are too busy. I didn't want all the responsibility but it's looking like im the only one prepared to act. There are 4 potential attorneys to choose from. The fourth has said they don't want to be involved which is fair enough. 1 and 2 want to be attorneys but not actually do anything.

If the original hasn't been registered, there are no attorneys. I would get an LPA in place and simply ignore the existing "attorneys", especially attorney 1.

By the way, the attorneys, even when registered, have no say in the funeral arrangements. That is a matter for the executors.

Thank you. I've been using the word attorney as short hand instead of writing proposed attorney or attorney to be.
The donor's executors are the same 3 attorneys to be plus the one who didn't want to be an attorney. Maybe a solicitor should be the executor in this case of family fall outs? At the moment there is a lot of bad blood over this and it's upsetting the donor.

If 1 and 2 spit their dummies out completely then it will be me and me only as an attorney when the new forms are completed. Potentially with 2 as a replacement. Would that work in theory? I have no issues with the preferences at all.

So at the moment there are no legally appointed people with POA for anything. Person 1 sounds concerning. Person 2 not a lot of use!

can you support the donor to make a decision about who they would like to be named as having POA and get the application completed and submitted?

it would also be worth checking that they are completely happy with their will and the designated executors.

Yes. I will. I'm going to see the donor later on today. They have said the will needs changing anyway. There was a gift left to me that they no longer have for example. I'm thinking a solicitor might be best placed as an executor to avoid any squabbles.
The donor doesn't need to pay the fees so I'm wondering if we should just get it done with me as the sole attorney. There will be a huge fall out but there has been already and I already help with or do most things with or for the donor with their consent. I didn't really want sole responsibility but I want the donor to have peace of mind and I already do most of what would need doing anyway. I have the time and availability and live only a mile away. A team approach would have been good but I cant see it happening. now.

If I were the donor, I would appoint you as the sole attorney given the way the other "attorneys" have behaved.

I think that will cause nuclear fall out but it's already causing fall outs so no matter what the donor does someone wont be happy and will kick off about it. I don't think there's an answer that won't cause issues. If the donor were to appoint a solicitor as attorney how would that work? would all expenditure like shopping have to ho through the attorney? As an example money to buy family gifts at Christmas?

I think the donor should appoint you as sole attorney and get this filed. You are respecting their preferences and the other potential attorneys are not.

I would also think a solicitor as executor would be good.