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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My mother is in a coma and her wife since last year has

Resolved Question:

Hi
My mother is in a coma and her wife since last year has now actioned the power of attorney. They have a prenup but the nearest family are worried that our mothers wife is going to use all her funds, her business, sell the house which is in our mothers name and have right to it. Our mother does have a will but seeing as she is still alive and we hope she will lead some sort of reasonable life after a year of rehab - we would like to understand the legal implications and rights that her wife has in acting on the power of attorney?
2.the hospital where she is in london would like to recommend her for rehab. We would like to be involved in this process as well as her wife. Do we have family rights to have a say?
Thanks
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. I am sorry to hear of your mothers circumstances. Please can you confirm if your moters spouse has lasting power or enduring power of attorney (the latter could be made before 2007, the former after 2007).If they are lasting powers of attorney does she have both property and affairs and health and welfare powers or just one of the two?
Customer: replied 1 year ago.

Hello Joshua

Thanks for quick response. The lasting power of attorney concerns property and financial affairs and was registered in may 2011. Not health and welfare powers.

Look forward to hearing from you.

Expert:  Joshua replied 1 year ago.
Thank you. Finally has the LPA been registered with the office of the public guardian?
Customer: replied 1 year ago.
Yes
Expert:  Joshua replied 1 year ago.
Thank you. The position of the attorney is governed by the provisions of the Mental Capacity Act. This provides that any decision that the attorney makes must be able to be shown objectively as being in the best interests of the donor (here your mother). If the attorney cannot show this then the attorney may be financially liable to repay to the donor any losses they have caused. Beyond that if the attorney uses donor's funds for his own benefit - beyond paying out of pocket expenses - this could amount to fraud and can and has been prosecuted by the COurt of Protection and its agency where attorneys have been found to abuse their power. In terms of your specific concerns - as attorney she cannot take yoyr mothers funds to use for herself save for reasonable out of pocket expenses associated with her duties as attorney. She should require permission from the court to sell your mothers property and you object on the basis this is not in your mothers interests. If she has no experience in running your mothers business she should appoint an experience manager or she could be liable for loss the business suffers. Generally if you are concerned in any way over the way she is ating you can make a report to the OPGs financial abuse team which has consdierable powers to investigate and require the attorney to produce accounts or information to justify any unusual activity. They can involve the police if they find evidence of fraud and refer the issue to the Court of Protection to remove her as attorney if they find she has acted outside of her duties. https://www.gov.uk/report-concern-about-attorney-deputy As she does not have health and welfare power she has no right to make decisions in respect of your mothers care. Rather such decisions will need to be maken with her doctors and if applicable social services (if long term care is considered) on what is known as a "best interests" basis. Doctors will listen to familiy members views and take these into account in making decisions about care. As your mothers spouse her views will be important but they will not trump your own as a matter of course. Can I help you with anything else or has the above answered your questions satisfactorily?
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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