Acting in best interests?

[beeswax]

Having seen and read a few topics here in LPA's etc I may have missed something called 'best interests' when acting for someone else.

I have refused over and over again to pay Solicitors for EPA's and LPA's as they are now called by everyone that has asked me for one when dealing with my elderly MIL's financial and other matters including the DWP, the NHS, her Pension provider and her bank but they have allowed me to act on her behalf as her Son in Law acting in her 'best interests'. Oddly, her care home is refusing me access to her care records because they are insisting on LPA or other legal means before they will do so, even when the NHS have asked me for permission to access these same records and they have accepted me as acting in her 'best interests'...The care home has no problem when they want me to give them money for some of her care costs or to sign forms about her care. They are using the data protection laws. My MIL has severe dementia and has lost capacity some years ago..I did have to provide a Doctors certificate relating to non capacity to her private pension provider but they accepted me without legal representation.

My question is why pay good money to Lawyers that are not always trustworthy to tell me that I am acting her in her best interests. I need to state that me and my wife (her only daughter) are the only relatives other than a few aunts and cousins..I accept that if there were siblings then it would tend to complicate who was acting in her best interests and there could be objections if that were the case..

IF as many bodies list all the legal requirements required for someone who wants to act for someone else but then allows a 'best interests' declaration then what are the downsides? I have a cousin who is also the only child and he was almost cajoled into the EPA route as his Mum was going into a care home too and he sent me and other cousins a legal declaration that he was acting in her interests and if we had any objections to that and write on the form if we did etc...I'm not sure what he paid the Solicitors but it was over 200 pounds about 5 years ago..

I read that LPA can be done online now without using a Solicitor but would we have to send forms out to all her distant relatives and cousins we have never seen ever? Does it only apply to her relatives ie MIL's or mine too as I have dozens...I was one of 12 etc...

Just to add that my MIL is just a few months off being 100 years old and is in her last few days or weeks of life unfortunately..She did make a will out some years ago and so no problems on that score..

[Clitheroekid]

I'm frankly astonished that so many institutions have apparently allowed you to do what you have done without any lawful authority. But to address your specific points ...

I read that LPA can be done online now without using a Solicitor but would we have to send forms out to all her distant relatives and cousins we have never seen ever? Does it only apply to her relatives ie MIL's or mine too as I have dozens...I was one of 12 etc...

Yes, you can create an LPA online without using a solicitor, but the question is academic. Your MIL can't create an LPA as she doesn't have the mental capacity to do so.

The only legal way that you can deal with your MIL's affairs is to apply to be appointed her `Deputy'. More information here - https://www.gov.uk/become-deputy

[beeswax]

I'm frankly astonished that so many institutions have apparently allowed you to do what you have done without any lawful authority. But to address your specific points ...

I read that LPA can be done online now without using a Solicitor but would we have to send forms out to all her distant relatives and cousins we have never seen ever? Does it only apply to her relatives ie MIL's or mine too as I have dozens...I was one of 12 etc...

Yes, you can create an LPA online without using a solicitor, but the question is academic. Your MIL can't create an LPA as she doesn't have the mental capacity to do so.

The only legal way that you can deal with your MIL's affairs is to apply to be appointed her `Deputy'. More information here - https://www.gov.uk/become-deputy

CK, I don't doubt your 'legal' opinion but I don't think all those bodies would have allowed me to act in my MIL's interests without me making a 'personal' declaration that I am 'acting in her best interests' and isn't that the whole point and even that link you gave said this..

The court will usually only appoint a personal welfare deputy if:

there’s doubt whether decisions will be made in someone’s best interests, for example because the family disagree about care

So IF there is doubt, then its reasonable for someone to 'question' whether that person IS acting in best interests and may be a problem as I said if there were 'competing' interests like siblings etc...I read recently that a brother and sister had a Mum with Dementia and they both agreed he would apply for LPA and when she died, his sister found out that her brother had emptied their Mum's account of all her money and so shows that even doing it that way is no guarantee...

I would add that the DWP did say that me committing to be acting in her best interests 'could' make me liable for her debts and so they must recognise that anyone committing to acting in best interests is acting in a quasi legal manner but without needing to go through a relatively complicated and expensive way of basically agreeing with me that it's not absolutely essential to go through the legal route...and I guess you must have noticed that the term 'best interests' seem to have been added on some of these public body declarations?

[JohnB]

Too late for you, but the 2 LPAs can be registered online for £82 each, and people involved can be limited to the donor, attorneys, certificate provider (a friend) and the witnesses to signature, who can do each other. The people to notify section is optional. I did LPAs with 2 attorneys, 2 replacement attorneys, and needed 6 different signatures in total on all the forms.

I think you are winging it, and while the organizations are sympathetic, they have no obligation to work with you. I'd not recommend others go down this route. Glad you've not had too many problems, and fingers crossed she gets to 100.

[Chrysalis]

As others have pointed out, simply making a declaration that you are acting in someone’s ‘best interests’ is not a legally recognised method for giving you authority to deal with someone else’s financial affairs.
I am also surprised that banks etc have allowed you to do this (I know the DWP has its own system for appointing representatives to act on behalf of someone, but most banks, quite rightly, will not let you near someone else’s money without appropriate documentation)
However, for the benefit of others who may be reading this, there is no need at all to involve solicitors in the process of being appointed an attorney. There is however a legal requirement for all attorneys to act in the best interests of the donor.

[Chrysalis]

https://www.citizensadvice.org.uk/famil ... eone-else/

The link above gives useful info on the methods that can be used to look after people’s affairs.

[pochisoldi]

The way I see it, if someone deliberately flouts the one major mechanism put in place by parliament on behalf of society to protect those who have lost capacity, what's to stop them flouting two, three or more rules?

PochiSoldi

[Lootman]

As others have pointed out, simply making a declaration that you are acting in someone’s ‘best interests’ is not a legally recognised method for giving you authority to deal with someone else’s financial affairs.

There is more to the "best interests" provision than merely providing an alternative to when you don't have a power of attorney but need to act on someone's behalf. Even with such a power you still can only act in that person's best interests. You can't legally use a LPA or EPA to, say, fund a holiday for yourself.

Perhaps you could if there was a historic pattern of that person giving you a large annual gift for a holiday but I wouldn't do it.

I am also surprised that banks etc have allowed you to do this (I know the DWP has its own system for appointing representatives to act on behalf of someone, but most banks, quite rightly, will not let you near someone else’s money without appropriate documentation).

I am surprised too, although I never tried it. That said you can do a lot via alternative means. For example, I could give somebody my PINs and passwords so that they can operate my bank and brokerage accounts. They would not be able to write cheques, perhaps (although my wife is disturbingly good at forging my signature and has written cheques as me on occasions, with my blessing). But with access to my account they could withdraw everything and move it to their own account, again only if it in my best interests to do so.

Another idea is simply to convert such an account to a joint account, so that both myself and my chosen delegate can operate it independently.

I have lent credit cards to others for their use and there was not a problem with that. Retail places don't look too closely at the details, evidently.

[beeswax]

As Jakey used to say, "It's all a fiddle init"

As Lootman just said, there are many ways to get access to people's assets without needing an LPA...I confess I'm pig headed where authority is concerned and the more they tell me what they want, the more I try and do the opposite and LPA's and paying used car salesmen ie Lawyers is one of them...

When my MIL's care home demanded I need legal authority to act on her behalf I told them no, and added the next time she needed anything, clothes, money for personal care like hair and nails, nightwear etc or signatures on their care plans for her to go elsewhere then...

Just to add that even with LPA's or any other protection of the court etc does NOT guarantee that you WILL act in best interests of the person other than you will be 'legally' responsible but you would anyway if it can be proved that you didn't...Like I gave that example of Brother and Sister..and isn't it really easy to carry out fraudulent statements on internet forms if you know the personal details of someone?

I'm amazed that Banks still compensate people defrauded thousands of pounds when people innocently have given out their passwords and access details to their bank accounts, despite us all being told NOT to do that and Banks will NEVER ask that sort of information on the phone or online....

Best interests does NOT mean we are free to do as we please with anyone assets and that was just my point here that legally it really is NOT necessary as I have proved...All these institutions would no doubt prefer we did but as I said they have added 'best interests' for some reason as an option. Maybe they can see they can be fiddled or they don't trust Lawyers too...

[didds]

.... and the more they tell me what they want, the more I try and do the opposite and LPA's and paying used car salesmen ie Lawyers is one of them...

although as others have pointed out you don't have to pay lawyers to set up LPA - the cost of the actual LPAs remains of course. I've just done my wife's and mine, by printing off the forms from online and filling them in manually. It was very straightforward.

didds

[melonfool]

Moderator Message:
Just a quick reminder that we do not allow people to suggest, hint at or discuss illegal activity here - such as forging cheques. I would also remind people that giving out your PIN is a breach of the bank terms. I confess I don't really understand the point of the OP, but if people wish to discuss this subject, please do so without making any comments that might lead to people doing things that are illegal. Oh, and please stop dissing lawyers, that is also against the site Rules. Mel

[JohnB]

I think forum members need to warn others when their actions might be illegal, and that must mean describing what not to do.

[Lootman]

I think forum members need to warn others when their actions might be illegal, and that must mean describing what not to do.

Yes, that is surely part of the purpose of discussions here - to determine what is or might be illegal.

For instance in the example that was discussed above - about giving out a PIN or password to another individual - I think there is a reasonable discussion that can be had about whether that is against the law, or merely contrary to the terms and conditions of a card or account. My own view is that it is not an action that would get anyone into court, but it might lead to the suspension or closure of that account, or an inability to claim money back if there is some subsequent fraud.

If someone recommends robbing a bank I think the situation is clear that it's the encouragement of an illegal act. When it comes to the applicability of the pages of small print that often comes with products and services, that is less clear to me.

But does the TLF definition of "illegal" include transgressing a line item of small print on a contract? To my mind it may well be unwise but "illegal" is not the word most people would use to describe it.

BTW, I might have posted this on the Biscuit Bar discussion of this thread but it seems a bit confrontational there right now, so it's here.

[melonfool]

Moderator Message:
Is it at all possible that people not use this thread to turn into a discussion about what can and cannot be posted? I know some of you enjoy the finer details of the guidelines but please, give it a rest. The thread is about not using an LPA but using a less formal means to oversee someone's financial commitments, known as 'acting in best interests', please stick to that. Mel

[Chrysalis]

I find this thread confusing because beeswax seems to be suggesting that ‘best interests’ decisions somehow get around the need to have a lawful basis for managing someone else’s money, ie provide an alternative arrangement. I don’t think this is the case, as indicated on my previous link and the link below. All decisions made under PoA need to be made in the person’s best interests, and having a legal power of attorney of course is no guarantee of that, but with no such power I do not see how you can do it at all.

https://www.scie.org.uk/dementia/suppor ... terest.asp

[beeswax]

Moderator Message:
Is it at all possible that people not use this thread to turn into a discussion about what can and cannot be posted? I know some of you enjoy the finer details of the guidelines but please, give it a rest. The thread is about not using an LPA but using a less formal means to oversee someone's financial commitments, known as 'acting in best interests', please stick to that. Mel

A less formal means...

Yes, that is exactly my point. Thank you.

[beeswax]

I find this thread confusing because beeswax seems to be suggesting that ‘best interests’ decisions somehow get around the need to have a lawful basis for managing someone else’s money, ie provide an alternative arrangement. I don’t think this is the case, as indicated on my previous link and the link below. All decisions made under PoA need to be made in the person’s best interests, and having a legal power of attorney of course is no guarantee of that, but with no such power I do not see how you can do it at all.

https://www.scie.org.uk/dementia/suppor ... terest.asp

Sorry if it's confusing and being I'm in apology mode, sorry to any lawyers here that may have taken offence at my usage of language above.

To the question put above. Yes, I am not just suggesting you can 'somehow' get around the need for a lawful basis for managing someone else's money but from my own experience I did exactly that and reading through that link above which is very useful thank you but it makes the point I have been making in that in 'every situation' either physical, mental or financial, any decision made by Doctors, carers and relatives MUST be in the person's best interests...and whether that is tied in legally or not the same situation applies. I believe that is why the 'best interests' sentence has been added by some of these organisations but they do insist on knowing your relationship with the person you are acting for and I'm not certain about this but as in my case I am the closest relative my MIL has, apart from her only daughter(my wife) then it almost certain that I will be acting in her best interests and why I probably have had no issues with that...Now, had I been a non relative, a friend, a church Pastor or other person, then its possible those organisations would not have accepted them without legal authority. I will say that even with family members there is no guarantee they will be acting in best interests re health need and advising Doctors to switch off life support or not to resuscitate etc ...Me being a Skeptic again but it's my contention that even if someone in that situation like I am that went down the legal route, its almost 99% guarantee that I would be appointed in any situation as acting in best interests and so in my simple view, it would have been all a waste of time and money doing that....I have said that if there were other family members involved, then its reasonable for them to possibly contest that decision and why its probably safer to go through the legal route, especially as it can be done at reasonably low costs now online eg 85 pounds..In fact having said all I have said, its probably the safest route to take but you still will have hassle in having to send copies of the LPA to every Dick and Harry when these considerations 'are involved with outside groups and organisations when these issues crop up.

So Mel asked me what my question was here and it was what are the 'downsides' to do it the way I have done?

As I said my MIL is on her last few days and weeks now and so its not applicable anymore..I was hoping to help someone else and generate an alternative way that's all..My conclusion and answering my own question is for 85 pounds its a no brainer...My Cousin paid a lawyer 250 pounds and he came back for more too...

[didds]

My conclusion and answering my own question is for 85 pounds its a no brainer...My Cousin paid a lawyer 250 pounds and he came back for more too...

Yes . And as others have pointed out several times now you don't have to pay a lawyer £250 (or whatever) for this. You can, of course. But its not something that "has" to be done by a lawyer.

the forms are very simple and explain everything in simple English (or Welsh too I imagine if so desired etc)
didds

[Chrysalis]

Both legally and practically, health and welfare decisions are a very different ball game compared with financial and property decisions. I agree that in many/most cases for H&W issues a legal PoA is not needed or required, and a next of kin will generally be consulted/involved by the health care staff without any formal issues. In any case it can ONLY be used if the person has lost capacity.
In contrast, for financial affairs, a legal arrangement is generally both required and useful. The new LPA can be used irrespective of whether the person has capacity.
I don’t think it helps that your posts keep confusing the two different types of decision.

[Chrysalis]

But, if you want a downside. I have a friend whose mother is ill with dementia and in a nursing home. She was initially self funding but has now become eligible for NHS continuing care. It was helpful for her to have a legally watertight PoA for Health and welfare when negotiating with the authorities about the funding.
In contrast, I held Health and welfare PoA for my father and it was never needed. The doctors discussed with us all how his final care should be managed.