My brother and I have power of attorney on behalf of my mother. We are deeply concerned about the actions of my mother’s “carer”, a woman who appeared seemingly out of nowhere and presents herself as incredibly helpful and attentive. My intuition and instinct told me that this wasn’t right. I have witnessed her taking shopping, purchased with my mother’s money, and putting it in her own bags. I am aware that money has gone missing (around £60 at a time). She dismisses my mother as confused, yet accompanies her to the cashpoint almost daily.
Does the power of attorney allow my brother and me to intervene and take control, or at least request receipts for money withdrawn and for shopping? How else should we use it to protect our mother’s estate? I am concerned that my mother’s savings may have been eroded – does power of attorney allow me access to see what savings are left?
I presume you are talking about Lasting Power of Attorney (LPoA), which came in after 2007. This allows a named person/s to make decisions on behalf of someone else, usually a family member, when that person – here, your mother – loses capacity. (It can also be used while the person still has capacity, with their permission.)
There are two types of LPoA – one that looks after health and welfare and one that looks after property and finance, and you must have the latter for the rest of this to apply to you.
I contacted Gary Rycroft, a partner with solicitors Joseph A Jones and a specialist in wills, trusts, probate, powers of attorney and mental capacity issues. He explained your options. “If there is an LPoA registered with the Office of the Public Guardian (OPG) [and it must be registered], then the OPG has safeguarding responsibility for vulnerable adults. But, the OPG can only investigate alleged abuse by the person who has LPoA, not any other parties,” Rycroft explained. So in this case, not the carer.
Rycroft also said that if you and your brother have financial LPoA, this does allow you access to your mother’s financial affairs (statements, bank cards, and so on), but only if she has lost capacity, or agrees to it. If she has not lost capacity and is still able to make her own decisions, you can only look into/take over her financial affairs with her consent – get it in writing to be sure.
Does your mother have mental capacity? If yes, you need to talk to her. Gently explain your concerns and ask if she needs help to manage her affairs. Maybe she is getting confused, or it is all getting too much for her; maybe she does need you/your brother to step in. Did your mother give you LPoA because she was already finding it hard to cope with things and expect you to take over running them at some point? You don’t have to fully take over her finances – you could do it with her supervising, which might be a good compromise – it doesn’t have to be all or nothing. Importantly, support her but don’t disempower her, and listen to what she wants you to do.
Maybe – if she is in agreement – you could set aside an afternoon a week to pay her bills/get cash out for the week so that she doesn’t have to go to the cashpoint with the carer. Keep an accounts book of money in and out, in case you ever need to show it. I wasn’t sure how often you see your mother or how far away you live.
Be aware that your mother may know about her carer taking food or money; maybe that is an arrangement they have come to. This is why communication between you and your mother is vital. When you say the carer seemingly came from nowhere, where did she come from? Who hired her?
Obviously, it is of great concern if you suspect the carer is stealing, so if your mum a) has mental capacity but b) doesn’t want you to help her/get involved, you could go straight to the police. But they would need evidence to prosecute and if your mother says the carer was taking stuff with her consent, there will be no case.
If you suspect your mother no longer has capacity, you and your brother may need to step in as her PoA: to do this, you need to write to her banks with a certified copy of the LPoA to explain what you are doing. Although there is a legal and medical test if there is a dispute, appointed PoAs can take up their powers when they feel the person is losing capacity. Be aware, however, that you can be challenged by an interested third party, so if someone else thinks you have taken up your powers against the wishes of the person who has named you PoA, doctors and lawyers may become involved.
This first appeared in The Guardian Family section on 24 January 2015.