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.

IANAL so I would not like to comment, but I think it is more usual in a POA to specify which decisions can be taken by any single attorney and which need to be joint, rather than specifying certain attorneys do certain things. The latter would seem to leave a gap if eg you moved abroad and couldn’t operate the day to day stuff.

The attorney makes decisions on spending for the donor in her best interest - it doesn’t mean the attorney actually does those things. So the attorney might appoint a cleaner to keep the house hygienic - they wouldn’t have to clean themselves.

A PP suggested “single” attorney for decisions under say £5k (which would cover things like council tax and minor household repairs like new boiler) and joint for more significant ones. That sort of thing could be written in.

My MILs friend did this - they had a chat together once the form was completed without us in the room, signed in all the correct places and we sent it off. 6 weeks later it was approved. They’re not a ‘professional’, but had known her for 50 odd years.

If you are already able to speak to those health providers, then this would continue once she loses capacity as long as she has already put it in writing with them.
The financial LPA is a different kettle of fish. You’d be able to do some things in terms of finances, but should they need to actually speak to you regarding changes to things like direct debits you may struggle. So, a financial LPA is more important than a health one IMO.

The donor and I already clarified the preferences with a solicitor and told them the things the donor wanted to put in. There are no instructions, just preferences so just a preference on how the attorneys would divide the tasks to be done.

There isn't anywhere near thousands available to have to specify how money is spent so that's not a worry.

if there were lots of instructions i could understand the others having an issue but they are just preferences.

I suspect they want me less involved. There's always been jealousy from them that I see more of the donor but they have chosen not to be as involved. They are very hands off. I'm the youngest by 20 years and have a very close relationship with the donor that they don't like. The donor wishes they were more involved but they are too busy and in 1's case too far away and too busy.

There is nothing otherwise that gives rise to their objections. Nothing obvious. But they wont tell the donor what the issue is anyway.

Why is this so complicated?

My DDs are my attorneys. When you register an LPA you don't have to do anything other than register those names.

The donor doesn't have to register their wishes at the time. I haven't put anything into the document itself. That's too big a commitment. Who knows how life and my feelings might change? I'm simply adding my own sheet of paper with my preferences on , to my copies of the registered documents. That way I can change my mind, and I know I can trust my attorneys to do what is best at the time, bearing in mind my wishes. That was the expert advice I was given.

Given that the donor is fed up of this and close to giving up, I'd suggest that she just sends in the basic details with you and her friend as attorneys.

I think it's because I do everything at the moment and if 1 and 2 only have POA (like was to be the case originally) then I can no longer do those things easily. For example buying Christmas presents. If the donor asks me to get the grandchildren Christmas presents but lacks capacity to go to the bank or transfer money to me to do that then I would need to ask 1 or 2 for money. Alternatively 1 and 2 would have to take over all the shopping duties and there's no way they'd have time to do that. So the preference is that 1 and 2 look after big bills such as care home fees if applicable and I do the day to day stuff.

Leaving the preferences blank would mean that the donor's wishes were not taken into account by 1 and 2. They don't know the donor's day to day life and thoughts on things well enough to make those decisions.

The 3 of us aren't close at all and with the big bust up over this we are more distant than ever with extra bad feeling thrown in for good measure. This all could have been avoided if the donor had been given all the information in the pack to start with. Instead they did this blindly and were discouraged from legal advice and from reading the guide they were supposed to read and were signing to say they had read. It's 1 that's pushed for LPA to be done. 1 and 2 are pushing on funeral costs and discouraging a religious funeral.

I'm also not seeing why this is so complicated. 1 and 2 have made it clear they are not suitable. So donor makes you sole PoA. You seem to be happy with that, donor seems to be happy with that, so do it. Job done. Why the angst?

The donor doesn't want to upset 1 and 2 and worries they'll no longer visit or speak if they aren't appointed attorneys.

It makes sense for you to be the attorney and there’s no reason why the other two people need to get involved-just complete the forms and get it sent off. You’ll need various independent witnesses as other have mentioned, we asked neighbors, people from the Dad’s church, etc.

I’m my Dad’s attorney and my Auntie is the second attorney, but tbh, I’ll make any necessary decisions-she wants me to do that, she agreed to be the second attorney as a back-up.

Right so that's the crux of it. Not the legal stuff at all.

How often do they visit now? Do they even have to know if you're appointed?

It's only one witness that's needed. This could all be sorted and sent off by the end of the week. The forms are ready and waiting to be completed. Demands for solicitors is going to delay things by weeks as 1 is going on holiday plus works mon-fri and says they can't leave their spouse on their own due to their health. I'm not sure what the spouse does while 1 is at work
This is doing my head in. The donor is too worried about upsetting 1 and 2 to get this completed and that's not to the donor's benefit.
Hopefully tomorrow the local solicitors will be back open and we can ask about advice but I'm not sure what advice they would give. I can't see them recommending a meeting excluding anyone. Nor can I see them recommending 1 is attorney. I might be wrong there though.

1,2 and the not wanting to be involved 4 are also trying to get me to stop being the donors carer. It smacks of coercion and underhandedness.

You're right it does. It's all about them, not the donor. If they're like this now they will only be worse in future. It's also about future inheritance and entitlement rather than making sure the donor is looked after.

“1,2 and the not wanting to be involved 4 are also trying to get me to stop being the donors carer.”

Why?

I honestly feel that 1 is not going to act in the donor’s best interest. Anyone who would threaten dropping contact if not an attorney is a bad attorney. I wonder if 1 has plans to try and siphon off money or something!

@titchy sorry you posted while I was writing. 1 visits at most every 2 months. I can't remember when they were last over. Mother's Day perhaps. 2 last saw the donor 2 weeks ago and that's the norm I'd say with phone calls once a week. I saw the donor yesterday and tend to see them 5 days a week. 1 phones more often but hasn't been doing since the shit hit the fan over this.

I could spit my dummy out and say right, you don't want me involved in finance so its up to you to sort all the online and local shopping, presents, banking, gardener, window cleaner, butcher, podiatrist, mobile hairdresser, decorator, tradesmen, getting cash out etc from now on. They'd go ballistic and say I was being difficult.

@SheilaFentiman they think it's too much for me yet they have never spoken to me about it. Ever. Just assumed. They don't even know what I do! I'm quite happy with everything I do and if I wasn't I wouldn't do it. It's jealousy that I see the donor much more than they do.

Ok it's clear it isn't legal advice you/the donor need, it's managing family relationship advice.

Maybe move the thread to the 'elderly parents' board?

At the end of the day though, while just having you with PoA is much more sensible than having your siblings as well, it's really up to your mother. Would she phone Age Concern for advice on how to manage the fallout from just appointing you?

My original concern was that the potential attorney is disagreeing with the donor's wishes and demanding they see a solicitor together while excluding the other potential attorneys.
The family fall out is inevitable over this and yes the donor will need advice on how to handle that but the LPA issue of who and how remains because the donor is now stuck and worrying that their preferences aren't legal. Im still no clearer on that one despite asking. I don't get how preferences can be problematic legally and id be very grateful to anyone who can answer that question. The attorneys would be acting jointly and severally.

Preferences should be legal. Unless they are asking for things like assisted dying which isn’t! But something like “providing only comfort care if no hope of recovery” is fine.

The preferences are that I continue what I'm doing day to day. That I organise outside help if needed such as a cleaner or carers. That 1 and 2 look after the sale of the house. That medical opinion is sought about capacity and ability to live independently before selling the house to pay for a nursing home. All phrased as "I would prefer" with no actual instructions at all, just preferences. I don't understand how any of that would not be legal.

I would definitely get a solicitor involved as a joint attorney and I would probably have the other two siblings listed too. The siblings could loan the donor money to do this properly and have a charge against the estate. If the solicitor has any doubts about the donors mental capacity they are in a better position to request a medical opinion. Remember things change and attorneys can predecease the donor - it has sadly happened to us.

Is the will a straight 4 way split between the siblings? It sounds to me that the other siblings think you may try to secure a larger share. Could this be the real issue?

@LadyLapsang there's no way they'd take out a loan to pay for anything. No way they'd communicate with me over anything. No chance of me getting a bigger share either so that's not a concern. A solicitor plus 1 and 2 would be a nightmare considering everything I've written here. How would I continue to do everything I'm doing now if I have to ask for money for everything? There is no money in the family, we are all pretty poor including the donor.

Given the donor still has capacity, she can just transfer money at the moment. If she loses capacity in the future, and she may never lose capacity anyway, you could agree a float or transfer a tranche of money and keep a record of spending. Having a solicitor involved would make them behave better and act as a buffer if they try to bully you.

You mentioned one of the siblings wanted a solicitor involved, where they prepared to pay or how did the expect the legal advice to be funded?

Were they!

Of course the donor's preferences are legal. From what you say, it doesn't sound like they are wise given donor 1's behaviour, but they are definitely legal.

Sorry - that should be attorney 1, not donor 1!