Acting in best interests?

[beeswax]

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.

Strange you should mention the NHS CHC...for people that don't know what that is, its where the NHS pick up the bill 100% for all the costs of being in a care home or nursing home or even in their own home and it's very difficult to get as I applied for that for her over 18 months ago and was unsuccessful on two occasions and am going through lengthy appeals procedures. She will die before that is resolved. I didn't find any issues with the NHS on the legal side for her health and welfare. Now she has just a few weeks or days to live the care home and her GP have said now she could now qualify under the NHS CHC fast track procedure where people are not expected to live beyond 3 months...I don't feel up to doing that at the moment as its like getting blood money..

So PoA has not been an issue at all although it may have been if she had been awarded CHC I don't know?

[beeswax]

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.

I dealt with all my MIL's financial decisions without needing legal authority or back up..

[Chrysalis]

@beeswax I truly don’t understand how you did that as I had to produce the LPA to be able to operate my father’s accounts. It’s quite scary to think that banks etc might allow someone to do that without explicit authority from the account holder.

[Clitheroekid]

I dealt with all my MIL's financial decisions without needing legal authority or back up..

As I and others have said it seems quite extraordinary that you somehow managed to achieve this. However, in case others are tempted to emulate you it needs to be made crystal clear that the laws are there to protect you as well as your MIL.

This is because whilst in your own case it may make no difference there are many cases where for someone in your sitiuation to act like this could be catastrophic.

The starting point is that you have, by your own admission, had no legal authority to deal with your MIL's financial affairs. She did not have the necessary mental capacity to authorise you to act on her behalf, and you had neither the authority conferred by a registered EPA/LPA nor the authority conferred by a court order appointing you her Deputy.

The reason the law requires you to have such authority is to protect people like your MIL from fraud. She was lucky in this case, but simply because someone is next of kin makes it no less likely that they will be fraudulent. In the same way that most child abuse is perpetrated by members of the victim's family I suspect most mental health fraud is also committed by family members.

But the reason that your actions are inherently dangerous to you as well as your MIL is that because you acted without legal authority all of the transactions you've undertaken are by definition illegal and could, if challenged, be reversed.

What this means in practical terms is that when your MIL dies her executors will discover what has been going on. And if your MIL had, for example, left her entire estate to the local cats' home the executors could insist on all the money you had spent from your MIL's account being repaid with interest. The fact that you may have spent it for her benefit is neither here nor there. You had no authority to remove the funds and that's as far as a judge would look.

So whilst you may be fortunate, in that I assume your MIL's executors (of whom you may be one) will take no such action, this is the exception that proves the rule. Other people who are tempted to follow your example may not be so fortunate.

[Lootman]

the reason that your actions are inherently dangerous to you as well as your MIL is that because you acted without legal authority all of the transactions you've undertaken are by definition illegal and could, if challenged, be reversed.

What this means in practical terms is that when your MIL dies her executors will discover what has been going on. And if your MIL had, for example, left her entire estate to the local cats' home the executors could insist on all the money you had spent from your MIL's account being repaid with interest. The fact that you may have spent it for her benefit is neither here nor there. You had no authority to remove the funds and that's as far as a judge would look.

So whilst you may be fortunate, in that I assume your MIL's executors (of whom you may be one) will take no such action, this is the exception that proves the rule. Other people who are tempted to follow your example may not be so fortunate.

I think that misses his point, because he was acting in the best interests of the other party, as was I in the case I related elsewhere.

So surely the crucial point in any of these cases is not whether the letter of the law was followed but rather whether the effect and intent of the actor was sound or fraudulent.

Clearly BW cut a few corners here and I've talked before about how I did too. But the justice system would primarily take into account not the technicalities of the statutes but rather the good faith and intent of the actors. As long as my actions benefitted the parent and not myself or others, then why the heck would it matter whether some regulation was transgressed? Isn't this exactly what gets people peed off with lawyers and their endless and mindless focus on petty technicalities rather than who is doing right or wrong?

I don't need some guy who spent 5 years studying law to tell me if an action is right or wrong.

[didds]

[
I don't need some guy who spent 5 years studying law to tell me if an action is right or wrong.

I think CK's point though is that all it takes - if it gets that far etc etc etc - is a judge with all the weight and majesty of the law to disagree and whoever it is that has acted in this manner now has a big problem. For the sake of £82 (for a financial LPA) and a an hour or so of paperwork.

didds

[Lootman]

[I don't need some guy who spent 5 years studying law to tell me if an action is right or wrong.

I think CK's point though is that all it takes - if it gets that far etc etc etc - is a judge with all the weight and majesty of the law to disagree and whoever it is that has acted in this manner now has a big problem. For the sake of £82 (for a financial LPA) and a an hour or so of paperwork.

Yes, CK is of course correct and clearly it's best to have the right documents when you're acting for someone else.

I was trying to promote the idea that doing the right thing for the right reasons to selflessly help another person should count for a lot in the event that there is a complaint that you acted without a formal legal basis. I'd like to think that's the case but you're quite right that it may be insufficient.

An example might be where you are spending someone's money "in their best interests" but the beneficiary of their estate is somebody else who is less keen on you spending what they see as their inheritance. They might be tempted to press the technical issue.