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Father's Power of Attorney - Need Advice


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I am asking for advice on behalf of my partner.

 

My partner jointly signed a power of attorney along with his sister back in 2004 regarding his father's affairs.

 

Over time his father has suffered bouts of ill health and stays in hospital.

 

Last time he was in hospital he told my partner he didn't want to go home; however my sister persuaded him to go home against his wishes.

 

Her concern was that if he went into a nursing home there would be no inheritance left.

 

Anyway my father has since suffered further ill health and is indeed now in a care home.

 

My partner's sister failed to inform my partner for 3 weeks were his father was so he couldnt visit him.

 

In the meantime, she has sent my partner a solicitors letter wanting him removed from the said power of attorney.

 

She claims that my partner has had no dealings with his father but that is hardly surprising since we didnt know where he was!!

 

My partner has sent a lengthy letter of grievance in response.

 

My partner has never had a copy of the power of attorney so cannot remember what it contains.

 

Just asking for some advice; he is reluctant to sign because he is concerned of his sister having full control of everything and king him to be a bad person by bad mouthing him to the solicitors.

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There's more than one type of power of attorney. What type was it?

 

If it was registered before 2007, it could be an Enduring Power of Attorney (EPA) which has a much narrower scope than the replacement Lasting Power of Attorney. On the other hand, if it is just a basic Power of Attorney, there are even more restrictions on what can and can not be done.

 

Luck7even: Unless you can extract a certified copy of the certificate from this sister, your best bet would be contacting the Office of the Public Guardian and see if they can provide a copy. There may be a fee for this service if they can find the records in question.

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Thank you all for the replies.

 

Yes it appears judging from the letter that it is an enduring power of attorney.

 

My partner is concerned and has written a reply to the solicitor asking why his sister wants him removed from the document.

 

His sister has always acted fully and has always dealt with his father's affairs since the document was signed back in 2004.

 

I think my sister in law is panicking because her only motivation is one of sheer greed.

 

I have told my partner not to sign anything until he gets a full response back.

 

I am also asking the solicitor for a full copy of the said document.

 

We believe that she wants him removed from the document so she can have sole control over everything.

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I think my sister in law is panicking because her only motivation is one of sheer greed.

 

This document may be of interest: http://www.justice.gov.uk/downloads/forms/opg/epa101.pdf, in particular, the paragraph at the bottom of page 21.

 

Should Attorneys keep accounts of their dealings?

Yes, Attorneys have a duty to keep accurate accounts of their dealings for the Donor. They should have a list of the Donor’s bank and building society accounts and other investments, as well as proper records of all of the Donor’s income and expenditure. This includes receipts, bank statements etc. The Donor’s money and assets should remain in the Donor’s name.

 

The Court can direct that Attorneys produce accounts at any time. If satisfactory accounts are not produced then the EPA may be cancelled.

 

After the Donor’s death the Attorney may be required to account to the personal representatives of the Donor’s estate in relation to their dealings.

 

IF the S.I.L. has ideas of siphoning monies off to line her pocket, she could find herself in a whole lot of trouble real fast. It might be worth asking to see a copy of the accounts, if for no other reason than to see if S.I.L. is performing her duties in a satisfactory manner - If she is failing to keep adequate accounts, this could be grounds to seek her removal as an attorney.

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Google EPA101, this gives you all the information you need.

 

Could you post up the solicitors letter as it would be interesting yo see the reasoning for your removal.

 

You really need a copy of the EPA in particularly to see if the attorneys have to to act together or can act independently. It may be that she is trying to pull a fast one by getting your partner to resign so she has so

She has sole control.

 

You also need to know if its been registered. As I understand it it can only be registered if the donor had become or is going to become mentally incapable. Clearly if the donor doesn't fall into this category , the question to be asked is does he know that she's trying to get her brother to resign? Surely the solicitor should be asking this as the donor could cancel the EPA completely.

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From what the letter says my father in law has lost mental capacity.

 

He spends most of his days asleep, and can only speak yes or no.

 

His mental health has completely detoriorated from the stroke which he had in early August and has shown no sign of recovery.

 

The said document has not yet been registered because his sister cannot register it until my partner agree to be removed from the said document.

 

When we visited him in the nursing home, there were no pictures of us, only the S.I.L.

 

She has clearly taken it upon herself to stop my partner getting involved with his father's affairs.

 

He needs to wait for the response back as to why she is wanting my partner to be removed considering she has dealt with their father's dealing since it was executed.

 

I have sent an email to her solicitor as of this morning asking for them to send my partner a copy of the said document as his sister never gave him one.

 

I have as of yet had no response to the request.

 

He will be asking for copies of his bank statements to see what has been going on.

 

We think he has been in hospital originally since early August, and was admitted into the care home without our knowledge onthe 19th September.

 

We went for 3 weeks without knowing where he was.

 

Could this be deemed unreasonable behaviour on her part not telling us his whereabouts so we couldn't visit him?

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The said document has not yet been registered because his sister cannot register it until my partner agree to be removed from the said document.

 

Not true - The document can be registered with both names attached and it should have been registered years ago, ideally back in 2004.

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The fact she's not kept you fully informed and had had control of his affairs for some years is very worrying.

 

I would refuse to resign and insist that its registered by both attorneys. She should have kept a record of all financial dealings since she has been dealing with his affairs (2004) so ask for a copy of these records. It maybe she just doesn't want you to know what she's been going with his money since 2004.

 

As an attorney there is a duty to inform the other attorneys and at least 3 relatives of the donor that its bring registered so they can object i.e. they don't think someone should be an attorney or it shouldn't be registered because the donor isn't mentally incapable.

 

I'd be tempted to ask for all accounts since 2004 as well as the document. Your entitled yo this information. If they provide the doc but no accounts, I'd SAR his bank/building society using the EPA.

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Cannot be registered until the donor lacks mental capacity or is about to lose mental capacity (see page 10, Part C of Government publication EPA101).

 

What usually happens that the attorney can deal with the donors financial affairs by production of the unregistered EPA but they (banks etcetera) SHOULD check with the donor first.

 

However, it can be registered by one attorney on the behalf of the other attorneys, but that wouldn't negate the other attorneys rights and obligations.

 

Not true - The document can be registered with both names attached and it should have been registered years ago, ideally back in 2004.
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To be clear, an EPA is effective ad soon as it is signed but is only registered once mental capacity is lost. Also, a donor can only agree to an EPA when he/she had mental capacity.

 

However it only gives authority over property and financial affairs. Therefore your partner should make it clear to the nursing home that he is a next of kin and had a right to be included in any decisions about his care and should be kept fully informed about his condition etc. To me, and I may be wrong, but it looks like she's trying to exclude her brother completely.

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To be clear, an EPA is effective ad soon as it is signed but is only registered once mental capacity is lost. Also, a donor can only agree to an EPA when he/she had mental capacity.

 

However it only gives authority over property and financial affairs. Therefore your partner should make it clear to the nursing home that he is a next of kin and had a right to be included in any decisions about his care and should be kept fully informed about his condition etc. To me, and I may be wrong, but it looks like she's trying to exclude her brother completely.

 

The S.I.L has not contacted her brother since they fell out 2 years ago.

 

She has deliberately withheld any information regarding his father's health and financial matters.

 

We need to see what response if any we get from her.

 

Thank you to everyone for their advice.

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Can you remember who drafted it? Was it a solicitor or self drafted?

 

I personally would follow up the email by letter pointing out that as an attorney your entitled to a copy and if you don't receive it you will contact the Office of Public Guardian ad you are concerned that your authority under the EPA is being ignored.

 

 

I will do.

 

S.I.L solicitor has not yet replied to my email of this morning asking for a copy of the power of attorney.

 

Is there any other way of obtain this?

 

I suppose we need to wait!!

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Can you remember who drafted it? Was it a solicitor or self drafted?

 

I personally would follow up the email by letter pointing out that as an attorney your entitled to a copy and if you don't receive it you will contact the Office of Public Guardian ad you are concerned that your authority under the EPA is being ignored.

 

I will tell my partner to do just that and especially as the solicitior has still not replied to my email of yesterday asking for a copy.

 

His sister never gave him one when he signed it and my partner is indeed very concerned that she is trying to write him out considering she has been dealing with his father's affairs since 2004.

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They will probably argue that they haven't had time to send you a copy but they could send it by email attachment or send a quick email response saying its on its way.

 

 

T

I will tell my partner to do just that and especially as the solicitior has still not replied to my email of yesterday asking for a copy.

 

His sister never gave him one when he signed it and my partner is indeed very concerned that she is trying to write him out considering she has been dealing with his father's affairs since 2004.

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It is not unreasonable for the solicitor to take a few days to respond. The solicitor may need to ask his/her client for a copy of the PoA and will need his/her client's permission to release the document to you. I would follow-up in a week's time if nothing is heard before then.

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It is not unreasonable for the solicitor to take a few days to respond. The solicitor may need to ask his/her client for a copy of the PoA and will need his/her client's permission to release the document to you. I would follow-up in a week's time if nothing is heard before then.

 

I have explained to my partner that if the sister does not give him a copy of the document he can complain to the Office of Public Guardian and report her for it!!

 

We are hoping to hear back shortly though.

 

Thank you for the advice.

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We have received a copy of the EPA from the solicitor in the post this morning.

 

Because the father has been mentally incapable of dealing with his affairs, this document relates to his property and money side of things.

 

I am going to phone the CAB today and make an appointment as we cant afford solicitor fees.

 

I have however advised my partner to phone his legal expenses insurance and see if they can deal with it being as its a family matter.

 

Until he gets the advice he needs, he is not going to sign the paperwork.

 

The solicitor is also going to write to his sister asking her why she wants her brother removed from the document as she has failed to have kept him informed of his father's affairs for many years due to refusing to speaking to him.

 

Will keep you posted.

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Has your father made a Will Lucky7 ?

 

Andy

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