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Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I clarify that your mother does in fact want to appoint your brother please? If he is untrustworthy, on the face of it he would not seem the ideal choice for an attorney in the first place?
Does your mother have a view as to the financial limit she would like to impose on sole decision making for your brother?
Yes she wants us both as attorneys she is 80 and relies on my brother a great deal despite his actions ( she has rose tinted glasses)
She doesn't have any views on financial limits, it is up to me to advise on this. She has a flat worth £190k (which was bought by a trust and she, my brother and I are all trustees) plus £160k cash equity released when she sold her house last year, which I am anxious is not mis- used in any way.
Understood. Thank you. Based on what you say your mother will wish to select the box that provides "jointly for some decisions and J&S for everything else" - the bottom box of the three choices. In the box underneath she could write words along the lines of "My attorneys must act jointly in relation to any matter which involves a decision involving a sum or equivalent sum of more than £xxx and in relation to decisions about selling my house and may act jointly and severally for everything else"
Thanks are you also able to advise on the Health and Welfare statements please?
As to what £xxx should be. This should be set at a figure which means that your brother can deal with all the day to day bills without involving you but not so high that he can make more significant decisions without involving you. Normally £200-250 as a limit would allow all normal bills to be paid save for perhaps things like household insurance premiums and the like which may crop up yearly. However your mother may wish to increase or decrease this figure depending upon the level of her personal expenditure.
She can go on to include further restrictions on the next page but my view on this is it is both unnecessary and dangerous to do so. The reason I say this is because there is so much protection already built in to the legislation that adding restrictions is unnecessary for the main and if not worded correctly such restrictions can often make the LPA ineligble for registration - there are hundreds of cases every year regarding defective restrictions placed in LPAs. If she has any further issues she wants to include she may be better to consider adding such issues as guidance rather than restrictions.
As regards XXXXX XXXXX for health and welfare, these are very personal decisions. You will be aware that unlike the F&A LPA attorneys under a H&W LPA can only make decisions if the donor is unable to make them themselves. Accordingly the attorneys have no realy powers unless the donor loses capacity under a H&W POA. It is for your mother to include any restrictions she wishes however these are some of the most common examples of restrictions that are included
A condition requiring the attorney to keep a record of all decisions he or she makes on the donor’s behalf, or just significant decisions such as where the donor should live, or consenting to or refusing life-sustaining treatment. A restriction preventing the attorney from deciding where the donor is to live. A condition requiring the attorney to consult a particular person before making any decision about where the donor is to live; A restriction to the effect that the attorney can only make decisions about the donor’s social care, and not about any aspect of the donor’s health care, or vice versa; A restriction prohibiting the attorney from consenting to the donor’s participation in a research project:
I do not suggest that the above restrictions should be included as they will unlikely all be important to your mother if any of them for that matter. Only restrictions which are important to your mother should be included. You will be aware that an attorney has a duty to make decisions which are strictly in the best interests of a donor in any event so in many cases restrictions are unnecessary unless therer is a matter of particular import such as the above to the donor on which the donor does not want the attorneys to be involved with. In many cases this will not apply.
Is there anything above I can clarify for you?
On the Health and Welfare, I assume we should state something like "my attorneys should act jointly in relation to any decisions about life- sustaining treatment, decisions about where I live, and decisions about residential care and surgical treatment, and may act jointly and severally for everything else". Does that cover the main possible issues that commonly arise where we would need to ensure we are acting jointly?
If your mother is concerned to establish parameters for joint and several actions then exactly as you say she should make a list of any matters on which she would want you to act jointly together and then just as the P&A power tick the same box and then include a provision in the box underneath that sets out the matters on which she would want joint decisions to be taken. The above wording appears satisfactory on the basis of course that the above provides for the matters she considers important.
Remember that if imposing joint decision restrictions, that it may be worth appointing a replacement attorney because if anything were to happen to either you or your brother the other would not be able to continue to act on decisions that required a joint decision unless there is a replacement attorney appointed to step in as a replacement. Your mother could consider appointing perhaps a grandchild or someone else she trusts as a replacement to guard against this risk.
Thanks very much indeed for your assistance, very helpful. Just as an added question ( you don't have to answer this!) has my brother acted illegally by acting solely without even advising me at all of the POA or, as she has apparently agreed to it ( but she claims she didn't understand what she was agreeing to), is it all perfectly acceptable? I am not taking any action against him but it might be helpful to understand if what he has done is seen as strictly legal.
The requirements for an LPA (as you know) are that there must have been an independent certificate provider who certifies that your mother had capacity and then either a) at least one person notified that your mother made the LPA or b) a second certificate provider. Providing your brother complied with the above requirements the LPA is valid. However your mother (as you also know) can revoke the LPA at any time providing she has capacity and your brother has onerous onligations under the Mental Capacity Act to act in your mothers best interests at all times. If he has spent any of her money other than in accordance with these obligations he is personally liable to repay the same to your mother which can be enforced in the courts. If he has used any money for his own benefit, there can be a criminal element attached to the obligation to repay whereby he can be prosecuted, this this is typically only pursued if the amount involved is significant and there is clear evidence of an intent to steal the money for himself.
If you have concerns about your brothers actions as attorney there is a dedicated number you can contact at the office of the public guardian which will investigate any supicious activities if necessary with the assistance of the police:
If I can assist any further as the situation develops please do not hesitate to revert to me
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should I have a replacement attorney on the property and financial as well as the Health and Welfare please? Thanks
If restrictions are being added for joint decisions for some issues then it is always a good idea to have a replacement because otherwise if something were to happen to one of you the POA would be invalid for decisions that are required to be made jointly unless there is a replacement to step in. Therefore it is a good idea to do so
Is there anything else I can help you with?