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Joshua
Joshua, Lawyer
Category: Law
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Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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A member of the family has died recently. He set up an Enduring

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A member of the family has died recently. He set up an Enduring Power of Attorney in 2005 appointing his wife and eldest daughter as his attorneys and at the same time his wife made an EPA appointing her husband (now the deceased) and the same eldest daughter as her attorneys.
In case it is relevant, the EPA says that the 2 attorneys can act jointly and severally with general power to act on her behalf.
For about 2-3 months the surviving widow has been showing signs of early dementia and is receiving a medicinal drug for this condition. Her GP says she has become incapable of handling her own affairs.
The eldest daughter has applied to register the Power of Attorney with the OPG as she is sole surviving attorney and she was concerned that her 2 siblings were wanting to set aside this EPA and substitute it with an LPA with a division of responsibility between the eldest daughter having the care role and the finance and business role going to her brother who is a successful businessman.
She took the view that it was improper to seek to replace the EPA once her mother's mental capacity was waning as this would surely involve her in signing a new LPA when she would have dubious mental capacity to do so.
The siblings are complaining that she has acted precipitately and it is unfair that they are left out of decision-making as the original EPA now provides (the father having died) and say that this was made 10 yrs ago before the LPA came in and they want a new regime where they can each have a say in what happens concerning their mother . They particularly say they want a power to act jointly and severally with the eldest daughter.
Questions-1. isn't it illegal to effectively destroy the earlier EPA and substitute a new LPA signed by the widow when she is lacking mental capacity?
2. Can the eldest daughter be criticised in any way for what she has done which is causing extreme acrimony from the siblings?
3. Can the siblings apply to the OPG to be made joint attorneys with this power to act "jointly and severally" if the application to appoint the eldest daughter proceeds?
4. What does it mean to act "jointly and severally" as the notes to the EPA says that "severally" means independently but this makes a nonsense if you can act jointly when you want and independently at other times when you want?
5. Can the OPG substitute an LPA for the EPA as part of the Court process for registering the original EPA or are the 2 procedures entirely separate?
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Joshua :

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.

Joshua :

May I ask for context in my replies your relationship to the eldest daughter please. Are you one of the siblings or another family member - I ask as it helps me frame my replies in the right context.

JACUSTOMER-8qmh9upb- :

I am the husband of the eldest daughter who has applied to register the EPA

Joshua :

Many thanks.

Joshua :

If I may I will just make a few general comments and then turn to your specific questions.

JACUSTOMER-8qmh9upb- :

I have replied giving my relationship to the eldest daughter. How do I contact you ? not clear from your web page.

Joshua :

The first thing to say is that if the EPA gives joint and several power of attorney then the EPA will survive your father in laws death and your wife will take power of attorney solely.

Joshua :

In addition an EPA (unlike and LPA) does not need to be registered until the donor (your mother in law) actually loses capacity. I am sure that much you already know but it is helpful to be clear on those points. Turning to your questions.

Joshua :

Before I continue can you confirm you are able to read my responses as I am concerned from what you say above that you may not be able to?

JACUSTOMER-8qmh9upb- :

I am now getting your replies which I wasn't earlier?

Joshua :

Thats great. Turning to your questions using the same numbering:

Joshua :

1. It would be illegal for a third party to physically destroy the EPA. In terms of replacing it with an LPA, your MIL is the only person that can revoke an EPA. Your wife is able to resign as attorney which would render the EPA of no legal use but from what you say neither your wife nor your MIL wish to do so. In deed if your MIL has lost capacity then it is too late to prepare an LPA as there is a capacity test as part of preparing a new LPA. Also even if someone were to certify her capcaity for making of a new LPA it would be wide open to a challenge from third parties in light of the GP's comments.

JACUSTOMER-8qmh9upb- :

This is an amazingly difficult process. I can't access what your answer is. Sorry - I am now getting it. What on earth does MIL stand for ?

Joshua :

MIL = mother in law. Sorry for speed - I am typing my replies so they only appear as fast as I can type.

JACUSTOMER-8qmh9upb- :

Sorry Joshua , you are doing a good job, I didn't understand that was the process

Joshua :

2. Legally there are only certain specific grounds for challenging an attorney under an EPA. These grounds are: The power purported to have been created by the instrument was not
valid as an enduring power of attorney a) The power created by the instrument no longer subsists (not the case here); b)The application is premature because the donor is not yet becoming mentally incapable (from your MIL's GPs comments her capacity is now in question at least though your wife may wish to clarify whether the GP actually believes she has lost capacity); c) That fraud or undue pressure was used to induce the donor to create the power (given how long ago the EPAs were made this would not seem likely but it would be for the other siblings to show evidence of this if they believe there is any); e) That, having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney

Joshua :

The last point (e) is one of the most common challenges to registration of EPAs but again here unless your wife can be shown by her siblings to be guilt of some sort of financial impropriety such as misusing her mothers money or being subject to insolvency proceedings which I assume would not be the case, I cannot see that there is any obvious challenge the siblings could mount.

JACUSTOMER-8qmh9upb- :

Got that- it is all on the Notice form given to the other siblings etc

Joshua :

Causing acrimony between siblings is only indirectly relevant at best. The Court of Protection (which would ultimately adjudicate any challenge is almost singularly focused on the best interests of your MIL if she has lost capacity and will have little regard for the views of siblings outside of this tight focus.

JACUSTOMER-8qmh9upb- :

Thank you - received as far as you saying you do not see any obvious challenge the siblings could make.

Joshua :

3. No. It is too late to make an LPA if your MIL has lost capacity. If she has then the EPA will stand unless one or more of them can successfully challenge it. If they can then your MIL will be left without an attorney and the damily woulld have to make an application for deputyship which is similar to an attorney but the power is granted by the court rather than your MIL and the role is subject to greater court ongoing oversight than an attorney is. Also the process is slow and costly. An unopposed application costs more than £500 just in court fees. SOlicitor costs must be added if they make the application and contested applications for deputyship run into the thousands which is usually paid from MILs funds. It should not be underta***** *****ghtly.

JACUSTOMER-8qmh9upb- :

My wife however would be willing to surrender the financial and property matters to her brother as long as she has the care of her mother without interference (my wife is a GP). The brother is a very successful businessman who has retired early. The other sibling, a sister lives in Canada and my wife cannot see how she can play an effective role in care or property matters from that distance - she is now home of course temporarily for the funeral. Is there a procedure for the present power to be revamped in some way to effect this ?

Joshua :

4. Joint and severally means that 2 or more attorneys appointed in this way can either act together to make decisions or can act on their own. It is now possible to appoint attorneys so as to specify that they can make some decisions separately and others that must be made together but that is not relevant here. Crucially a joint and several appointment means that in the event that one attorney cannot or will not continue to act (due to death or any other reason) the other can continue. If your MIL had appointed your wife and your FIL jointly only then the EPA would have failed on your FIL's death.

Joshua :

5. No. The only way to substitute and LPA would be for your MIL to revoke the EPA (for which she needs capacity) and for her to make a new LPA (again for which she needs full capaciy as we discussed above).

Joshua :

If your wife is in principal willing to cooperate unfortunately her hands are somewhat tied if she maintains her powers under the EPA. The reason for this is she cannot legally delegate her power of attorney to her brother unless the EPA specifically authorises here to do so which is unlikely unless it was prepared by a particularly enlightened solicitor.

Joshua :

In addition EPAs (which as you know have been replaced by LPAs now) did not provide a power of attorney for health and welfare. The new LPA regime allows for powers of attoenry to be granted for finance and for health & welfare (a separate document is require for each type). THe old EPAs only provided a power for finances which is all your wife will have under the existing EPA. She will have no power of attorney for health and welfare but can still make decisions on her mothers behalf on a "best interests" basis under the Mental Capacty Act which your wife is sure to know all about if she is a GP.

Joshua :

The decision is therefore a rather difficult one. Your wife could give up her role as attorney under the EPA (which is restricted to financial powers as above). She would then have no formal powers at all and your MIL would be without an attorney. One or more family members would then need to make an application for deputyship for finance and if desired for health and welfare. As above this is a time consuming a costly exercise and requires ongoing oversight by the court and in the case of a financial deputy, that deputy is required to pay a bond to the court for security (this is to guard against any fraud committed by the deputy and is set at a level the court thinks appropriate).

Joshua :

The correct decision is largely up to your wife in the first instance as from what you say her role as attorney is not likely to be successfully challenged if she is a GP. IT is important not to lose sight of the most important thing here which is the welfare of your MIL not the feelings of the various siblings. As there is already a legal attorney in place it seems less than a stellar idea to try to reinvent this particular wheel particularly as appointment as a deputy by other siblings is not guaranteed as it is up to the discretion of the court. Instead it might be sensible for your wife to suggest that she is perfectly willing to be counselled by her siblings on financial matters and act on such counsel where she feels it is appropriate and to keep them informed as to financial decisions she is taking with ready acces to financial records they reasonably request if this is an issue.

JACUSTOMER-8qmh9upb- :

So in short there is not a lot we can do about it. Is it your view that my wife acted correctly in registering the EPA ( as she knows her mother is on a dementia type drug and the GP , not herself, is saying she is losing capacity and agrees she should register the EPA).

Joshua :

I think our last posts crossed.

Joshua :

In short, your wife did act correctly in registering the EPA in these circumstances. Whether there is anything you can do, if your MIL is on dementia drugs then she is highly unlikely tobe able to make a new LPA so this I suspect is out. What is left, well your wife could resign and then a new application for deputyship could be made this is not guaranteed and will cost more than £500 at best and could result in an application being refused (though there is no reason it should be unless the court is concerned about family bickering preventing proper administration of your MILs finances) and the local authority taking over control of MILs finances so it is not exactly attractive.

Joshua :

Unless your MIL is very wealthy financial administration is usually quite straightforward as an atorney or deputy is not allowed to take any risky investment decisions anyway so it is usally a case of maintaining bank accounts and if there are sufficient assetsm creating a balanced risk averse investment portfolio with a financial advisor or something of the like. Being a successful businessman is not necessary or particularly relevant.

JACUSTOMER-8qmh9upb- :

Can you answer the point that her sister is living in Canada and how this relates to the dispute. Would the Court/OPG disregard her as a person having any right to attorney powers as not living in this country ?

Joshua :

Certainly - an attorney that lives abroad can act legally but will often not be suitable as an attorney will often need to sign things and so on. Legally they can but practically it may not be sensible.

Joshua :

Is there anything above I can clarify for you?

Joshua :

Have I been able to help you with all your questions on the above?

JACUSTOMER-8qmh9upb- :

Joshua , thank you very much, I think we have explored all the issues and you have answered them as far as you can and basically have confirmed our view that she has acted correctly. This is some consolation and we are meeting the other parties shortly and have some greater points to contribute than we would have had without this exercise. Thank you very much.

Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

JACUSTOMER-8qmh9upb- :

I am going to rate excellent. How do I get back to you again- is it just get on the website /or just leave another message as I am doing now. Sorry but I have not used this service before.

Joshua :

You can either ask for me in the opening line of a new question or click on a link to this thread via a link in your email or through your account on this website.

Joshua :

Many thanks

JACUSTOMER-8qmh9upb- :

I'm going to have to leave the computer now so will sign off but thanks again for all your help- just got your reply to how to contact you again. Thank you for that. Good night.

Joshua :

A pleasure.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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