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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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My brother, sister and I have set up a lasting POA

Resolved Question:

Hello,
My brother, sister and I have set up a lasting POA at the suggestion of our parents. We have received letters to say that these have been logged with the OPG. This is to cover their financial affairs. The POAs have not yet been evoked. We can act "jointly and severally".
Our parents are now happy for us to take control of their financial affairs as they are both elderly, their mental capabilities are seriously waning and they do not want to deal with their financial affairs. However, my bother and sister are reticent about evoking their POAs.
My question is this:
What happens if ONE of three joint POAs evokes their POA, at the behest of the 'donors', the POAs all being named and being able to act "jointly and severally"? Do the other two remain 'non-POAs' or are they abliged to/ do they automatically become active POAs?
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.

Thanks very much for your question. Ifthe lasting powers of attorney have alrady been registered at the OPG then they are already legally valid. It is not really a question of "evoking" them. They are already legally valid powers. The power does not "activate" only when an attorney decides to act.

An attorney can never act against the wishes of a donor even if he disagrees with the donor so an attorney cannot act without the donors permission unless the donor has lost capacity and of course even then he must always act only in the donors best interests in any decision he makes or he could be personally liable to the donor for any loss caused.

So there is not really a questio of evoking the LPAs. They are already valid and as you act jointly and serverally any attorney can choose to act under the LPAs independently of the others or together providing the donor is willing for the attorney to do so. If co attorneys disagree with another attorneys actions that is of course their right but they must be sure that they are acting in the donors, and not anyone elses best interest in respect of any actions they take in respect of that disagreement. Form example if the acting attorney they disagree with is acting in accordance with the donors wishes, then a co-attorney cannot overrule or countermand the acting attorneys actions unless they can show that in doing so they are acting in the donors best interests too. The two will rarely be the case. Occasionally co attorneys can "go to war" with each other which is far from the case here from what you say but such attorneys must be very careful as attorneys have been found personally liable and / or removed by following actions which were not best for the donor in their disagreements.

Addressing your specific questions:
1) If one of the attorneys decides to act without the other this is fine subject as above. All attorneys already have the power to act from what you say. If two decide not to act for the present that is their right but it will ot effect the other attorney being able to proceed. It may be sensible for attorneys to take lead and / or back seat roles so that day to day decisions and transactions do not become "committee" decisions constantly. Any attorney can act on his own or together with others.
2) If one attorney decides to act the other attorney are still attorneys with a legal power to act. They are just choosing not to exercise it. They became an attorney when they signed the LPA agreeing to be an attorney. They can renounce their attorneyship formally but they would not then be able to return as an attorney without a further lasting power of attorney being signed by your parents.

I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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Expert:  Joshua replied 1 year ago.
I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful.

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