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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10721
Experience:  I have been practising for 30 years.
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I hope you can help. My mum has fairly advanced Parkinson’s

Customer Question

Hi, I hope you can help.
My mum has fairly advanced Parkinson’s & Dementia and has been in a care home since 2012. During one visit with my mum a few months after she had arrived there she told me that my Dad & my middle sister (I am the youngest of 3) had asked her to sign something. When I asked if she knew what it was she said she didn’t and so I asked if she wanted to know what it was and she said she did. When I asked my Dad he initially said it was nothing for me or my eldest sister to worry about so I thought nothing more of it. However we then found out from the home that a Power of Attorney had been put in place which gave POA to my Dad & my middle sister jointly over my mums health, care & finance. My sister & I knew nothing about this taking place, it had never been discussed with us and we were bewildered as to why this had been done. My Dad would never have even thought of this himself therefore we knew it was something our other sister had orchestrated. When we asked them why they had done this things started to become very difficult and very unpleasant. Since then my sister & I have been excluded from all things surrounding our mums care. Our middle sister takes charge of everything with no discussion with us. There is little or no relationship with her know as she has made the situation impossible despite us trying to contact her to resolve things. At the time of the POA being signed by my mum she was being treated under the mental health hospital and had been diagnosed with cognitive behaviour issues, dementia and was often having imaginary conversations. Whilst at the same time she did have lucid time also. My question really is should me and my sister have been made aware of what was taking place? Additionally is there anything that we can do about it now? My Dad has admitted that on reflection it is not something that should have been done but I can see that he now also feels that he cannot go against my sister to get it changed. Sadly our family has been torn straight down the middle and the damage done is irreconcilable. My sister & I only want to safeguard our parents and at the moment we are deeply disturbed and concerned by our other sisters agenda with it all.Your advice would be greatly appreciated.
Submitted: 3 months ago.
Category: Law
Expert:  F E Smith replied 3 months ago.

Hello for clarification - do you suspect your sisters motives?

if so for what ends?

Customer: replied 3 months ago.
Hi, sadly yes.
She is extremely controlling and likes to call the shots on everything. The relationship between my eldest sister, myself and her is broken beyond repair and she has indicated that she wants to move mum from the home where she is happy to somewhere closer to where she lives should my dad pass away before my mum. This would make like extremely difficult for me & my sister to visit my mum as it would be a 3 hour round trip. Both of us work full time but we are still able to visit mum once a week. We believe that it is highly likely that she would revoke permission for us to visit mum and exclude us from everything associated with mum whilst she is still living.
My middle sister is very money orientated also and whilst our parents estate is not of significant value we believe that she would not behave in a considerate way or have good morals where personal possessions such as photographs or memories would be concerned.
At the time the POA was put in place there was no reason whatsoever to exclude me and my eldest sister but still it was all done in a secretive manner? The other significant fact is that there is no will in place for my parents! My Dad is very difficult and old fashioned in his views and despite trying to explain the importance of a will to him he continues to be reluctant for some reason. Obviously this is hugely concerning for us because if Dad died before mum everything would pass to mum and therefore fall under my sisters control.
There is one other important fact surrounding mums daily report notes from the home that she was in at the time of the POA being taken out and that is they are only legally obligated to hold them on record for 7 years. We are now extremely close to the destroy date for these records which would include a record of mums state of mind & demeanour at the time of them getting her to sign. Is there a way that we can safeguard these records or get copies because I am absolutely positive we will need these in the future?
I am reluctant to cause any further upset for my Dad whilst he is still alive so whilst we may not challenge my sister immediately it will for sure be something we will need to do in the near future and I’m concerned that the records we will require will not be available.I’m not sure if I’ve answered your question correctly but if you need anything else please let me know and thank you.
Customer: replied 3 months ago.
Sorry I should also say that regarding a will being put in place my sister & her husband have actively tried to discourage Dad from doing this and have given him misleading information. I have told my Dad that I don’t want to know anything about his & mums will’s I just want to ensure that one is in place.
Expert:  F E Smith replied 3 months ago.

You can object to the registration of the Lasting Power of Attorney if you can prove that your mother didn’t have the mental capacity to enter into the arrangement. The procedure is shown here, along with the application form for the objection. You need to read all the pages because it’s a different form under different procedure depending on your position in this. If in doubt, get a solicitor to make the application for you.

https://www.gov.uk/object-registration

you can also apply for your mother to make a Statutory Will or rather to have one made on her behalf you would only do that if the rules of intestacy (having no will) were going to be less favourable usually from a tax point of view.

It is necessary to make a court application and here is a little reading on that.

http://www.freethsoxford.co.uk/applying_for_a_statutory_will

Please note that it’s only on rare occasions that it’s worthwhile making statutory will.

Can I clarify anything else for you?

I’m happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.

Customer: replied 3 months ago.
Hi, thank you for all of the information,I will review this over the weekend when I get chance but I am working for most of it!
The only things I just want to clarify with you are:
1. Should they have made my sister and I aware that they were going to put a POA in place?
2. Is there any way we can prevent/safeguard or obtain a copy of mums records from the home she was in at the time without my sister or Dads permission bearing in mind they have POA over her health/care in the event mum cannot make a decision herself? Or whilst mum does still have capacity would we be able to get something written that mum could sign whilst lucid & ensuring she knows what she is doing and having independent witnesses such as the home manager present to give us her permission directly allowing us copies/access to her records? Would this stand up if challenged? I have verbally asked my mum if she would mind me seeing them and she pretty much scolded me for being silly and said of course I could!!!
Expert:  F E Smith replied 3 months ago.

Whoever put the rules together in respect of registration of the Lasting Power of Attorney I think probably didn’t understand what they were doing. In the days of the old Enduring Power of Attorney (pre-2007) then you would have had to have been told.

In respect of a Lasting Power of Attorney, the person granting the power (your mother in this case) can choose to tell other people or not. You can see it on the second page of the form: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/519167/LP3-Form-to-notify-people.pdf

this is of course assuming that your mother has mental capacity which it seems is debatable.

At the moment there is a registered Power of Attorney and that gives them the power to exclude you.

If your mother does have mental capacity, she can cancel the Power at any time: http://www.lawpack.co.uk/power-of-attorney/articles/article6998.asp

although, you potentially go round in circles here because if she has the power to cancel it, then she had mental capacity to enter into it in the first place. Whether she understood it or not is a different thing altogether because having mental capacity and fully understanding what is quite a complicated legal issue and 2 different things.