Power of attorney versus next of kin?

[whatabeautifuldaytoday]

Just wonder if anyone can advise on some rights when it comes to next of kin.

My 82 year old aunt got married to her 80 year old husband two years ago. His children have power of attorney for him but he was recently diagnosed with dementia. Early stages and he is otherwise ok at the moment. My aunt is worried that if things were to progress, that his children could (as POA) move him into a care home or insist he live with them, thus freezing her out.

These fears might be just that, fears but it has made her wonder what rights she has as next of kin? Her hope would be for her husband to live with her (with carers if needed) for as long as possible. Does she have any rights?

I think she's right. If she has no capacity, the POA acts, not NOK

My friend is going through this with her dad. He has no capacity and a Social Worker has been appointed to act for him. Friend does not have POA, but is NOK and has no rights at all to influence his care, if she disagrees with social worker.

If he is still of sound mind there is nothing stopping him changing his POA to change it to his wife, or add her in if that is what he wants.

I could be wrong but I thought spouse came before POA.

when my father was ill, the hospital deferred to my mother on all decisions. She didn’t have POA but I thought they deferred to her as the spouse.

Normally a POA would be reciprocal between a married couple so they can act for each other until such time that neither of them has capacity.

Next of kin has no legal standing so yes POA would have the relevant authority. If he's only early stages, it would be worth him adding her to the POA as well as his children.
It depends what POA his kids have too. There's either financial or welfare. That makes a difference in the POA powers.

When DH was dying, the hospital discussed things with me and in some things agreed thr way forward, but I didn't have the final say if there was anything contentious.

If someone was in need of long term care, there would be a best interest meeting held to determine what needs to happen. The person, their spouse / partner and Attorney would be present. All opinions would be considered. The Attorney’s choice would not take precedence over others.

but was there someone (other than a doctor) who did have final say?

Really. That's weird. We've been going through this with my Nan. My mum and I have basically dealt with the hospital/social workers etc etc and have been consulted with throughout without any POA in place. She's now in a care home and they still all deal with us. We are having to apply for deputyship to manage her financial affairs but there's never been any question of social workers taking over decision making ignoring NoK. Surely if health deputyship is required, the correct process would be that your friend should apply for it (ie rather than a social worker?) unless there's some reason they wouldn't grant it to her (eg she's not a fit and proper person).

That’s not correct. Next of kin has no technical legal meaning in English law. If you have a power of attorney however that can allow you to make medical and financial decisions on behalf of someone

No one has the ability to make medical decisions on behalf of another without a poa or court order. Being related to someone doesn’t allow you to make decisions about their medical care. That said, drs and hospitals usually work with relatives and try to keep them onside

Well, there are disputes yes. Friend wants to bring her dad home and care for him (he has been sectioned), SW believes she wants that for financial reasons (I.e. that she doesn't want her inheritance depleted).

IME with DH they "advised" more than consulted and the final decisions, if there had been material disagreement , would have been theirs.

No because I went along with medical advice, but if there had been a dispute a SW would have been appointed

Ok, this is interesting! I think my aunt is concerned that even if her husband is well cared for, that the POA can just turn up and move him to a place of their choosing.

As things currently stand she is healthy and well and is able to care for him but accepts that might not always be the case. But she's concerned that as of now, at any point his kids could just move him from their home.

Yes, that is a possibility. If he has capacity, he could do a new PoA?

A marriage invalidates any existing will. It’s odd that the same rule doesn’t apply to PoA

I actually had this discussion with my parents last night. They've both had some ill health and are finally coming round to the view that they need to do PoA.

I had assumed it would be me and DSis, but no, Dad particularly is very sure it should be Mum while she has capacity.

I'd never thought of it and we wouldn't go against what mum wanted, would we? Maybe, if we thought she was getting it wrong. I don't know.

Why does Aunt think they would act differently to she would? Why did he appoint DC and not her?

A POA can only act in the best interests of the donor, and should consider what the donor would have decided.

Turning up and removing him from his wife would be unlikely to fall in that category.

Realistically it is a rare person who is going to take on a person with dementia who already has a willing carer, or whisk them off to care home which will eat up their inheritance.

@AnnaMagnani has nailed it. Furthermore if attorneys did try to "remove" a husband from residing with his wife (where there is no justification eg wife able /willing to care or arrange carers) the aggrieved wife would be entitled to (a) complain to the office if the public guardian that the attorneys were acting contrary to the donor's best interests (b) could make her own court of protection application to challenge their actions (although that's complex, and expensive.)
If the husband still has capacity to donate LPAs he could (if he wishes) avoid the issue by appointment of spouse (with or without other relatives as additional or alternative attorneys) but, of course, that's his decision.

This is all really helpful, thank you.

It's a complicated situation as my aunt is very happy but her husband's family did not approve of the marriage. No particular reason, I think the kids were just loyal to their mother who died and didn't want their father remarrying.

Relations are cordial but my aunt is concerned her husband's children could use this to split them up. The POA was in place before they married. Although he has a dementia diagnosis he is ok at the moment and has capacity. I presume he is therefore able to add my aunt to his POA for as long as he has capacity?

You can't add someone to a LPOA but you can make a new one which replaces the old one.

He would need to make a new one….and if he already has dementia I would do it via a solicitor so that no one can say he was coerced or lacked capacity at the time

He doesn’t become their property, it becomes their responsibility to act in his “best Interests” when he can’t make decisions himself. If it wasn’t in his best interests to be moved to a care home then they couldn’t do it. If he can be safely and happily cared for by his spouse then for the most part that would be considered in his best interests.

But I would still get him to change his POA.

It's not the topic of the thread but this potentially doesn't make sense either.

If he has been detained under the Mental Health Act for more than 28 days then he would probably be entitled to s.117 aftercare which would mean that his care fees would be met by the state regardless of any property or money he had available.

There must be quite a lot of concern about your friend's plan to take her father home and care for him if adult social care are actively preventing it.

Even in these circumstances if your friend did have LPOA and there were safeguarding concerns that she wasn't using it to make decisions in his best interests then the local authority could take the case to court to ask that the Court consider revoking the LPOA.

We mostly try to work with families though regardless of whether they have LPOA or not - its only really where there is a disagreement about how someone should be cared for that it can become an issue.

Ah that's brilliant, thank you. It is likely going to ruffle some feathers if he gets a new POA but he (and my aunt) definitely think it's necessary. He still wants to include his sons but also add my aunt so that she has a say.

Thank you so much for all the help.