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solicitors with power of attorney

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solicitors with power of attorney

Postby Earl » Thu Jun 23, 2016 3:58 pm

Hi,

Just found out that my sister who lives in the USA and our local firm of solicitors have been given power of attorney over my fathers many businesses and properties.

Father is do-lally but not yet in a home but susceptible to suggestions and continual forgetfulness, basically on the brink of the dementia abyss.

Question is can my sister charge to the estate her travel, accommodation and time, and what do the solicitors charge for their input.

It all seems a very stupid decision given that the solicitors' know me and have advised my dad to give me the power of attorney ( no solicitors involvement) given that I am the only sibling who has worked with, for, in, my fathers businesses for decades.

The rug has rather been pulled from under my feet!!

Any basic info on power of attorney would be appreciated especially the one about the costs.
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Re: solicitors with power of attorney

Postby atticus » Thu Jun 23, 2016 5:17 pm

Ask them about their charges etc.
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Re: solicitors with power of attorney

Postby miner » Thu Jun 23, 2016 5:46 pm

It sounds to me that your Father who appears from the limited information provided to have still had mental capacity when the PoA was donated, must have donated the PoA of his own volition, in which case I would first talk to him about how it came about that it was donated to the parties concerned. If he can be shown to have lacked mental capacity when the PoA was donated, it would be invalid.

I assume you live in the UK. It seems likely that your sister has the POA but that it is jointly held by her with the solicitors in the arrangement, as she lives in the USA. Furthermore, most solicitors are not fit to be in charge of businesses. Many lack even the most fundamental financial competence.

I would never trust solicitors to hold any PoA, as they can rack up charges uncontrollably for undertaking the simplest of work. Solicitors love PoAs of this sort as it's 'money for old rope" to them.

In my view, the arrangement has a suspicious smell about it.

There is no "estate" per se as your Father is still alive. He has "assets". What charges can be made by the Donees depends on the precise nature of the wording of the PoA. Even if there is no specific wording to enable the solicitors to charge, the Courts in the UK tend to simply take the view that solicitors, being solicitors, can charge their normal hourly rates. I take the perhaps cynical view that the Courts in the UK exist partly to assist in lining solicitors' pockets.

I doubt whether the solicitors would tell you anything, as they would likely consider the arrangements made with them to be none of your business.

i think you need to speak with your Father (as the donor of the PoA) in the first instance, and then with your sister.
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Re: solicitors with power of attorney

Postby atticus » Thu Jun 23, 2016 7:17 pm

Large parts of what miner says are correct.
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Re: solicitors with power of attorney

Postby dls » Fri Jun 24, 2016 5:03 am

You need to be absolutely clear about the nature of the power, and about your father's capacity. Neither is a straightforward question.

Capacity can come and go. It is specific to the decision to be made, so that you can have capacity to do some things but not others.

A power granted in general form is not effective when the donor loses capacity. To survive it must be an enduring power. It must now be registered.

Such powers come in very different forms. You cannot make any proper assumptions about what it contains. It must be registered by the donee.

It is what it is. You need to identify first just what it is.
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Re: solicitors with power of attorney

Postby Earl » Mon Jul 04, 2016 9:18 am

Thank you for the comments.

Minor - you mention suspicious, do you mean that it is suspicious that the solicitors have got this PoA from a man who although is showing signs of mental failings but still has mental capacity and is still trying to run his estate although appallingly.
I say signs of mental failings because I was the daughter who worked with him and have recently been told that I am dead to him without any sensible reason only the fact that I was trying to get him to sort out PoA first and he didn't like it. Basically I have been abolished from his life and will for my concern.

Secondly if a PoA has to be registered where is it registered and is it a public record like Land Registry?

Thanks.
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Re: solicitors with power of attorney

Postby miner » Mon Jul 04, 2016 2:31 pm

The reality is that if your Father had not been officially (medically) declared as lacking mental capacity when he signed the PoA, he would have been presumed to have mental capacity and could sign whatever form of PoA he chose to.

It seems to me that you are going to have an uphill if not impossible battle to show that he lacked mental capacity when he signed it, so as to prove to the satisfaction of a court that the PoA in invalid.

If it isn't a Lasting (formerly referred to as "Enduring") PoA which continues (endures) after the onset of mental incapacity, then it is automatically invalidated at the onset of mental incapacity.

"Showing signs of mental failings" does not necessarily imply lack of mental capacity in medical/legal terms, as an individual in that limbo state can still have "lucid periods" during which they are deemed to have mental capacity.

LPoAs have to be registered with the OPG/Court of Protection. If it hasn't been registered, then it may be invalid anyway.

My recollection is that even after registration, it does not become a publicly-available record, but the solicitors here would likely be able to confirm that.
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Re: solicitors with power of attorney

Postby dls » Mon Jul 04, 2016 2:44 pm

"Showing signs of mental failings" does not necessarily imply lack of mental capacity in medical/legal terms, as an individual in that limbo state can still have "lucid periods" during which they are deemed to have mental capacity.


Mental capacity is now also context sensitive. A person can be perfectly able to decide what they wan for breakfast without having capacity to decide on complex investments.
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