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Clare, Solicitor
Category: Law
Satisfied Customers: 33029
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My parents are making a Lasting Power of Attorney with my

Customer Question

My parents are making a Lasting Power of Attorney with my Sister and I have concerns about my Father's wishes not being taken into account. What can I do? I have carefully suggested that maybe I should also be a joint attorney with my Sister. My Mother says that isn't practical as I live further away. My Mother has cancer but seems to want to put my Father (who is extremely compus mentus) into a care home before she dies. He does not want to go into a care home. If the LPA is registered straight away (as she intends to do) my Mother and Sister could immediately run my Father's Financial affairs and decide he should go into a home, as I understand it. What I need to know is 1) Is my distance (5 hour train journey) an issue with regard to being a joint attorney? 2) Should I suggest my Father makes a living will after the LPA is registered to protect him from things being done he does not want to happen?
Submitted: 4 months ago.
Category: Law
Expert:  Clare replied 4 months ago.

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first.

If your father has full mental capacity why do you fear that his wishes will not be followed?

Customer: replied 4 months ago.
Because my Mother has decided to do something!
Customer: replied 4 months ago.
I wasn't too worried until I read that the Lasting Power of Attorney can be registered straight away for financial matters, while the person still has capacity. My Father does have mental capacity but obviously has emotions relating to my Mother's cancer diagnosis. My Mother has decided he needs to be put into a home before she dies.
Expert:  Clare replied 4 months ago.

The fact that you live so far away does not preclude you from being a Joint Attorney with your sister - it simply makes it a little impractical if you BOTH have to sign things. However it is possible for attirneys to have "joint and several" responsibility so that either of you could sign and it is actually far more sensible to have two people named in case of unexpected illness or the death of one of them.

The fact that the Power has to be Registered immediately is not a problem - your father can over rule any decisions made so long as he has mental capacity

I hope that this is of assistance - please ask if you need further details

Customer: replied 4 months ago.
Thank you. ***** was trying to understand the joint and severally bit but couldn't get my head round it. If two people need to agree something but only one has to sign, wouldn't that mean that one could sign without the other person agreeing? It is a tricky situation as for some weeks we have all been so concerned about my Mother after her diagnosis and waiting for appointment after appointment. But despite the emotion and feeling caring for her, she is still the same person and hasn't always done very caring things for my Father, plus tends to be in cahoots with my Sister. I think the difficulty is my Father has problems enough over-ruling both of them at the best of times! And being in that position could cause some family strife. I don't know but I think he may be concerned about it as well and has delayed getting the paperwork completed. My Father has a history of depression and is diagnosed as bipolar. It is a sad thing that people tend to think you are a permanently mentally ill person with that kind of history. Whereas just telling someone they need to go into a home and aren't in their right mind could make them depressed! He has been fine on antidepressants for some time now and is very businesslike at the moment, but the strain and emotion of this situation may make him start to go under. Sort of chicken and egg. He has always been very clear that he doesn't want to go into a home. And I feel strongly about this - he grew up in a childrens home and hates institutions. My Mother seems fairly autistic when it comes to other peoples feelings and needs - and I am not sure why she wishes this - maybe she thinks he needs someone to look after him in time for her becoming incapacitated. Or maybe she just wants to feel in control and doesn't want me staying there in her home helping look after them both. The story I was told from my Sister was that the GP had told her she should get a Lasting Power of Attorney in case my Father's mental health deteriorated if and when my Mother dies (which could be months or years we don't know yet). When I first heard this I was concerned that my Sister would be able to make all the decisions for my Father without me having any input, and if something was done that my Father wouldn't want I would not be able to change this. I believe there is a situation where I could go to court to contest decisions but that sounds like a bit of a nightmare and would also cause family strife. As things seemed imminent the only idea I had was that my Father could make a living well stating his wishes and things he doesn't want, which I believe needs to be done at a date after the LPA is signed. But I am not sure if that is legally binding. Either that or I should say that I think I should also be a joint attorney with my Sister. I did suggest it to my Sister when it was first mentioned and she said "have you been asked". I think she would also prefer to have the decision making ability without me. I have got past the feeling of personally being excluded and am more concerned that my Father's interests are met in the event that my Mother dies. Or as it is looking at the moment, before my Mother dies. My Mother keeps saying things like he can't look after himself. She says she is his registered carer (this is a misnoma really - technically she is from when he was ill some years ago and as part of him receiving attendance allowance. If he lived alone he would need some assistance with the odd practical thing, but I think it would be wrong to put him in a home against his wishes.
Customer: replied 4 months ago.
At this time it is not known whether my Father could become depressed if my Mother dies (which would be fairly normally for any grieving partner) - he may well be fine and just need time and support to grieve. But at present he is likely to be made unwell by the upset of people trying to pressure him to go into a home. He is trying to do everything to please my Mother at the moment, as she has cancer, but agreeing to go into a home to please her, would not be possible and I think he is struggling with this.
Customer: replied 4 months ago.
To be honest I think both my Mother and Sister prefer me being further away and out of the picture and are probably both terrified I might move in with my Father and look after him - I had to spend long periods staying there when my Father was unwell in the past, at their request because neither of them could do it.
Customer: replied 4 months ago.
I am hoping that calm sensitive discussions might manage to resolve things but need to know what I should try and do - I think I should try to ask to be on the LPA. I haven't seen the wording and don't even know if I am named as a relative to be informed if the health and welfare decisions need to be taken if someone says my Father is not mentally capable.
Customer: replied 4 months ago.
I should point out that there is already an existing Enduring Power of Attorney for my Mother and Sister from many years ago.
Customer: replied 4 months ago.
This is the bit I have concerns about (taken from Law Society website)"Unless it states otherwise, a registered property and financial affairs LPA can be used while the donor retains capacity. Therefore, instructions that attempt to limit the attorney's power to use the LPA while the donor still has capacity are difficult to draft."
Expert:  Clare replied 4 months ago.

I am afraid that there is very little that you can do other than the options have outlined above.

If your sister does try to make decisions for him whilst he is mentally capable then he can simply revoke the Power of Attorney

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