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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10410
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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With regard joint POA, may be a silly question but does the

Resolved Question:

With regard joint POA, may be a silly question but does the Donee retain any rights still, i.e. can they still sign cheques on their own behalf if they have the capacity so to do? Again, can they still sign documentation if they have the power so to do, or is this completely removed from them by the POA. I have an elderly mother who is registered blind, but does have some sight and can just about see to sign cheques. However if for example under joint POA (with myself and my sister) she asked me to write a cheque/close a Building Society account on her behalf, would I under the joint POA require my sister's agreement to carry this out for her.

Thank you.
Submitted: 3 years ago.
Category: Law
Expert:  Aston Lawyer replied 3 years ago.

Hi there,

Thanks for your enquiry.

Provided the POA has not been registered (which you would need to do as and when your Mother had or was losing mental capacity), then either she or you, as Attorney can sign cheques. So, yes- she can sign her own cheques if she wishes to.

As regards XXXXX XXXXX POA, the document will show if you and your sister are to act "jointly" or "jointly and severally". If it is the former, both of you would need to sign cheques/withdrawal forms to close the account/take money out.
If you have been appointed to act jointly and severally, this means either of you can sign withdrawal forms etc without consulting the other. With this method, you both can also sign if you wanted to.

I hope this sets out the legal position and answers your question.

Kind Regards
AL
Customer: replied 3 years ago.

Hi


 


Thank you. So once she signs the POA and it is registered, she forfeits all rights to sign cheques etc., on her own behalf. Also, the POA was originally drafted with a Solicitor to the effect that my sister was not appointed. She originally engaged him to re-draft her will. He then suggested she appoint a POA, and was made aware by mother that she did not want my sister appointed. (There are family issues). I did not inform my sister that my mother was arranging for POA with myself and a close neighbour as replacement, particularly as I knew she wouldn't be happy and partly because my mother felt it was nothing to do with her., Neither did the Solicitor advise that when registering this, she should be notified so as to be given the chance to object. Should I have told the Solicitor my sister had not been informed?. She is now claiming that as my mother was arranging POA and I did not advise her of my mother's intentions that it be myself and a neighbour, i.e. that she was not included, she wasn't given the opportunity to object as she knew nothing about it . She taped a conversation with my mother in her care home to advise that to comply with my mother's wishes we work together on probate and selling her house, she would have to be on the POA as otherwise it would be illegal for her to be involved. To which my mother advised she could be included.. I wanted to have the joint POA as "jointly and severally" but my sister is now advising that if it isn't amended to be full joint POA, she will go to Court to challenge this as she feels I went over her head.

Expert:  Aston Lawyer replied 3 years ago.

Hi,

Thanks for your reply.

Could you please confirm if it is a Lasting Power of Attorney or Enduring Power of Attorney.

If it is the latter, this does not need to be registered at the time the POA is signed- it is only necessary for the Attorneys to register it once the Donne (your Mother) has or is losing mental capacity.

I look forward to hearing from you.

Kind Regards

AL

Customer: replied 3 years ago.

I have a feeling it is a lasting power of attorney. What is the difference please between the two?

Expert:  Aston Lawyer replied 3 years ago.

Hi,

An Enduring Power of Attorney was the old form of POA which stopped a few years ago, and was replaced by a Lasting Power of Attorney (LPA). Hence, if the POA has only been done recently, it would be an LPA.

On the basis that your Mother does have an LPA, there is no obligation to notify relatives who are not named as Attorneys, unless your Mother had specifically put on theForm that she wanted you to notify your sister.

In the circumstances, I think your sister is clutching at straws- even if she has a tape of your Mother saying that she would be happy for your sister to be joined as an Attorney, if the POA has already been signed, this taped conversation has no legal standing whatsoever. Indeed, your Mother would have to tear up the POA and start again if she now wanted your sister to be one of the Attorneys.

I hope this assists.

Kidn Regards

AL

Customer: replied 3 years ago.

Thank you.so much


 


Celia Jones

Customer: replied 3 years ago.

Hi


 


Sorry to be a pain; just to clarify one LPA has been drafted and signed by my mother and a Solicitor, BUT NOT REGISTERED. The other has been drafted (my sister was printing this off on line) but I'm not sure whether my sister has got her to sign it. If we, therefore, retain the original LPA (signed) but yet to be registered) does this mean that no other LPA can be put in place? Obviously, this means there is no POA in place at all. Does the fact that my sister is next of kin affect the situation at all that she should have been notified.

Expert:  Aston Lawyer replied 3 years ago.

Hi,

Ideally, if your Mother wishes the second LPA to come into being, she should first of all physically destroy the first one, which has been signed by her and the Solicitor.

However, if the first LPA has not been registered, there is nothing stopping the registration of the second one, provided your Mother has signed it and is happy with it!

There is no such thing as the eldest child being "next of kin"- all children are equally next of kin. However, just because your sister is one of th enext of kin, this does NOT mean in any way that she has to be notified of any registration. It is only the people your Mother has requested to be notified of the registration that need to be notified.

I hope this answers your question.

Good Luck.

Kind Regards

AL

Customer: replied 3 years ago.

Hi


 


Sorry to harp on about this taped conversation; the point of it I am sure is for my sister to prove that she in no way coerced my mother or pressurised her. Even if it states on the tape that my mother is perfectly happy for her to be a POA, and there was no coercion, would this still have no legal validity as the first POA had already been signed by my mother? I am concerned that my sister will then say my mother isn't capable of making such a decision, as on the one hand she is adamant she doesn't want her as POA and is advising same to a Solicitor, and in the next instance is stating on a tape that my mother wants her to be joint POA and threatened to make a Ward of Court. I did say to my sister that my mother gets distressed and confused (although she's far from senile) and am worried she would use this against me to strengthen her case. Is it possible to have an answer by the end of close today.

Again, thank you for your help.


 


 


 


 

Expert:  Aston Lawyer replied 3 years ago.

Hi,

As the first POA has already been signed, and indeed signed in front of a Solicitor, who is under a duty to make sure that their client fully understands and appreciates what she is signing, then a subsequent taped conversation has no legal relevance.

If anything, as the conversation was only between your sister and your mother, who knows what may have been said by your sister in the minutes before the recording began- there could quite easily have been coercion on your sister's part.

As regards XXXXX XXXXX's possible argument that your Mother does not hold capacity to make decisions, she would not get far with htis, bearing in mind a Solicitor was instructed to prepare the first POA and as I have said, is under a duty to make sure that a client has capacity and appreciates what they are signing.

Kind Regards

AL

Customer: replied 3 years ago.

Hi


 


Again, thank you for all your help with this. Certainly feel a lot happier.

Expert:  Aston Lawyer replied 3 years ago.

Thanks.

All the Best
AL
Expert:  Aston Lawyer replied 3 years ago.

Hi,

Is there anything more I can assist you with?

Kind Regards
AL
Customer: replied 3 years ago.

Hi


 


Thank you, XXXXX XXXXX at the moment. I am keeping all the responses, plus my Sister's correspondence on file.


 


Kind regards.



Celia

Expert:  Aston Lawyer replied 3 years ago.

Thanks Celia.

All the Best

AL

Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10410
Experience: Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
Aston Lawyer and other Law Specialists are ready to help you
Customer: replied 2 years ago.

i rated the service excellenet and have no further questions.


 


celia jones

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