Power of Attorney

[killedanotherhouseplant]

My parents have asked me into looking to complete POA forms for them. They are capable of doing it, but spooked by the online process. I consulted a legal friend and she said it's relatively simple to do yourself, so here we are.

I have a few questions, that I can't easily find the answer to:

• For everything but property sale, we want the POA to be "jointly and severally". My brother has some concerns about this as he wants everything to be "jointly" for transparency. However, he lives in Australia. Will everything (e.g. a payment to a carer, roof repair etc.) require a wet signature from him if we go down this route? Also, I'm assuming that the time difference could be an issue if we needed to make a payment and needed to wait for him to authorise it?
• Additionally my brother has no UK address, and the online form only allows you to put in a UK-based address (though he has bank accounts in the UK and the statements still come to my parents' house, so perhaps that's a solution)
• If the day comes when we need to enact the POA and make a payment from a parent's account - how does that work in practice? I'm sure elderly people are rightly not encouraged to share PINs / passwords, so how would I potentially authorise a payment?

Thoughts appreciated!

@killedanotherhouseplant your brother is being a twat and he obviously does not trust you! leave it all to him to organise and do!

Your parents have asked you to look into it, but surely these decisions are theirs to make?

I'd sit down with then, and a laptop, and go through the various questions.

It IS very easy to do yourself online.

Bottom line is if your brother has power of attorney alone or jointly with you, he needs to be able to get to your parents quickly in an emergency. His decision to move to Australia sailed that ship. He can still be on the Will and could still be an executor as he could come over when your parents died, but should something go badly wrong and a or both parents lose capacity quickly, he would need to be there to sign things within a couple of hours.

I'm assuming if I can convince everyone to go for "jointly and severally" (other than for property decisions) that should cover us, whilst still letting him feel part of things?

When we get to healthcare POA (parents not willing to do this yet) I agree, it needs to be people on the ground.

Just chiming in to say that someone who lives abroad can definitely be an attorney as I am for my Dad, although I live in America. Two other family members who live locally are also attorneys and I’m fine with “jointly and severally” as it makes complete sense.

Having moved to the other side of the world, surely your brother realizes that he can’t be involved in every minor decision?

I’d strongly encourage your parents to complete the Healthcare forms now, because none of us knows what’s around the corner. They can choose not to make them active until they’re actually incapacitated. That’s what my Dad has chosen, because he’s quite capable of making his own healthcare decisions right now.

Jointly and severally or don't do it. Seriously.

Don't put any official limit on payments that can be authorised separately, either. For example, nursing home fees can comfortably hit £10,000 a month. With the proceeds of a house sale in the bank you might have to pay tax on interest on that amount. I bought a table for my mum in the nursing home that suits her particular disability as the home didn't have one - it was about £200. You might be asked to fund specialist seating for her which can be several thousand. You might want to buy a wodge of new clothes for parents if they gain or lose weight. You might want to get them a bit of tech that would make it easier to keep them independent. Etc.

Ask your brother to propose a system of private authorisation between you that would be acceptable to him. Eg he could probably get a bank login himself so he can monitor the account - if he can visit at least once. Or you could screenshot bank statements and share them with him. Or just pledge to discuss payments before you make them.

Ask your brother to propose a system of private authorisation between you that would be acceptable to him. Eg he could probably get a bank login himself so he can monitor the account.

@PermanentTemporary Yes, I was thinking the same thing. Thanks to technology, he can easily monitor the financial side if he wishes.

When the time comes to activate the PoA there is so much to do . Waiting for second signatures is a nightmare even when the people are in the UK. Talk to him about the fact that speed will be the essence when the time comes. Tell him also that you will keep accurate records and keep him up to speed.

If he does not agree I would go ahead with the PoA without him and tell him to add himself in later when he has spoken to you parents.

Re health care POA - i think a lot of people can't get their heads round the idea that they can still be alive and yet genuinely unable to make decisions. Media focus is always on people who in fact can make decisions. Just make sure that they understand it would either be you making decisions for them, or a random social worker or doctor they've never previously met.

My sibling is named on PoA docs and lives overseas. We are joint and several. The reality is that I do it all. I am registered on the bank accounts. I have my own card, PIN and online access. We have weekly WhatsApp chats to keep up to date.

Any capital expenditure requirement usually generates quotes, which I send across together with the reason for it. Day to day expenditure - shopping, utilities etc I just get on and sort out with no input from sibling. I keep a spreadsheet of income/expenditure broken down into categories which gets sent across annually. We've been doing this now for five years and it works well.

I would recommend doing the H&W PoA. It makes dealing with HCPs much easier. I'm on GP record and Hospital record as contact for parent. You can add them to your NHS app profile so you get digital access, useful for test results and prescription ordering.

Yes, what this seems to mean in practice is that you can state which things are "joint" i.e. BOTH people have to agree, and what is "severally" i.e. either person can make the decisions. You need to make sure that EVERYTHING which might be time critical is "severally" i.e. Either of you can do it. This would especially be the case with big payments for nursing and care. My biggest concern would be a large, quick health deterioration. e.g. if your parent had a fall, had substantial injuries and when to hospital, was ready for discharge fairly quickly, but it was clear that it would be a long-time, if ever, before they re-gained the ability to live independently. It would be possible that they would need either a care home place, or a substantial home care package to be put in place before they left hospital. If mentally they were fine, it might not require POA because they would still manage things themselves, but if they couldn't, large payments might need to be authorised by the POA holders, before any care could be put in place and therefore before they could be released from hospital.

Others have pointed out the practical problems with him being in Australia. But the fundamental issue is that it is not his decision. It is your parents. He shouldn’t be trying to persuade them on anything.

In these circumstances if he is likely to be difficult I would strongly recommend a solicitor drawing up the documents not you. This will ensure that there has been independent advice and the solicitor can also act as certificate provider to confirm capacity. Whilst you can do it yourselves with the possible conflict it would work in your favour to have this independently prepared. The solicitor can tell your parents of the difficulty with Australia and jointly. They can tell your brother that this is what they have been advised by their solicitor. If it was ever questioned it would be a more robust document if not prepared by the attorney. A certificate provider as a solicitor or doctor will ensure that appropriate advice is given and records are kept, harder to allege any pressure from you. This is an important document that may need to be used for some time. It is worth the expense of a professional in these circumstances.

My DSIS lives on the West coast of the USA. The solicitor advised that she shouldn't be on the POA as she is too far away to be able to act quickly when she needs to. So she's not on the POA for my Mum and Dad - I am. For my POA, I have my sister in law, not my sister appointed.
DSIS is cool with that - but I know she feels a bit out on a limb with it all.
It's ultimately up to your parents to make the decision though, with guidance from the solicitor

Just to update this to say we decided to go with a solicitor, so that the advice would be impartial.

They have advised that my parents get a healthcare one at the same time (which they are going to do), and that everything is Jointly and Severally.

I have suggested that for property sale (only) then that should be jointly, as it's a big decision that would unlikely need to be done before a wet signature could reach us from Australia.

Everything else will be Jointly and Severally, which should allow me or the other surviving parent to make decisions without needing to consult with a different timezone.

So - supplementary decision. If my dad, my brother and I are (in the future) in the position of enacting a POA for my mum, and in the meantime my dad loses capacity, how would that work with decisions (e.g. property sale) than needed to be made jointly? Would we just need a form from a healthcare provider confirming he was also unable to make decisions?

I had PoA for a relative and it was my sole responsibility to deal with Financial, Healthcare, Care Home, selling property etc. it was all on me.
i would suggest asking a solicitor to draft up the PoA agreement to make life easier. The form has to be sent to the Office of the Public Guardian to be stamped with a Red seal. (This takes around 3-4 months). Only then will it be returned to the Granter and copy to the person named as PoA.

If the granter still has capacity, you need their permission to register the certificate with the bank.
Some banks are very cautious about allowing a third party access and I can tell you firsthand, some make up their own rules and it can be a very long drawn process to gain access to their bank account.

There is another important consideration that I don't think has been mentioned.

If LPAs are made to Attorneys "jointly", then all decisions have to be on that basis. If one of the Attorneys dies or becomes incapable, the LPA fails and the survivor has no power. That would also apply to any specific power appointed on a joint basis - such as selling property.

I new LPA would have to be made, assuming that the Donor still had the capacity to do so.

Avoid Joint appointments!

This.

OP, I would definitely go to a solicitor rather than try to do online as sibling in Australia could throw you even more curved balls when you actually have to ‘act’.
if sibling is controlling at this early stage, believe me their anxiety could escalate by a factor of 10x.

Ask your solicitor about your last point. You do not want to risk having the whole POA become invalid if one person looses capacity.

I want to stress again (to your sibling really) that anyone absent and not helping with day-to-day caring needs to do nothing but give their unconditional support to the one caring. Plus advice and a good listening ear when needed. I was the absent non-carer. Of course, it’s hard when you might have wanted to do things differently but if you aren't there you don't really know the situation. Decisions sometimes have to be made quickly. Your sibling must trust you.

No - if Dad loses capacity and is a joint attorney, the power will fail.

In my experience invoking POA often involves proving your id. That’s more documents from Australia. I have POA for my mum jointly and severally for my mum. My brother is in the US and more than happy to leave it to me.
If your brother wants to get involved ask him if he wants to be sole attorney. He won’t because it’s far too much work.

We have literally just done this for my parents. 2 of 3 children living in Australia. 1 in UK. We did ours as jointly and severally.
We put a note in to say that it was mum and dads wish that in the event we couldn't all agree that we would go with majority decision.
While not legally binding the person who helped us draw it up explained that this could be taken into account if ever there was dispute or if 1 of us started acting unilaterally against the wishes of the others.
I wonder if you could put in a note to that effect.
It's worth remembering that it is the wishes of the donor and not the wishes of the attorneys that take priority here. The Aus brother may wish to do everything jointly but if his parents feel acting jointly and severally is in their best interests then that is what should happen.
Easier said than done though.

Interesting posts and not unusual for disagreements to creep in.

I did not see any mention of replacement attorneys in the above posts. Always a good idea to make sure the LPA can continue if something happens to an attorney.

One point not mentioned thus far is that if attorneys must act "jointly" as your brother seems to insist and one attorney becomes ineligible then the LPA would be void and therefore no longer usable.

At that stage if the donor had already lost mental capacity they would no longer be able to create a new LPA.

Acting jointly and severally does not stop attorneys discussing and agreeing decisions before they are made as they need to be in the best interest of the donor at all times.

You can see lots of interesting information about setting up LPAs at www.lpa-agency.co.uk