Listeners of the Graham Norton BBC radio show on Saturday 11th November, may have heard an unexpected question from a caller asking for advice on what you are allowed to do if acting as an attorney under enduring power of attorney or lasting power of attorney.
The question came up in a roundabout way during the “Grill Graham” segment of the show, where popular talk show host Graham Norton and his co-presenter Maria McErlane respond to dilemmas sent in by listeners with candid advice and invite other listeners to email in with their opinions.
The radio show had been contacted by someone called “Stressed” who is caring for their mother who is coming to the end of her life and now sadly lacks mental capacity. Stressed said they manage their mother’s finances under a power of attorney. It is anticipated that this might be the mother’s last Christmas and Stressed has siblings who want to visit their mother over the Christmas period. However, the siblings live overseas and have asked Stressed to pay their air fares and travelling expenses from their mother’s money on the basis that the money would be theirs through their inheritance from their mother in due course.
Stressed is unhappy with the suggestion but is torn between releasing money so that her siblings can see their mother and whether morally the money should be released.
In the discussion that followed, Graham and Maria were dismissive of the idea of not releasing money to the siblings on the basis that it would please the mother to see her other children (although she probably lacks mental capacity to express a view) and that releasing the money is right as they are just receiving their inheritance sooner rather than later.
Marie Tisdale, head of wills and probate at Ansons in Staffordshire was dismayed by this response and when the listening audience were invited to email the show with their views; she sent an email recommending that if nothing else, Stressed should take some legal advice before releasing any of mother’s money to her siblings.
“Stressed said that mother’s money was managed under a power of attorney. The payments to siblings would be considered gifts and gifts can only be made if they are in mother’s best interests,” explains Marie.
“The gifts made must be affordable and if they are disproportionate to the size of the estate they should not be made without the prior permission of the court of protection. Also, an attorney cannot benefit from acting – i.e. they cannot give gifts to themselves while acting as attorney,” she adds.
When you are acting as attorney for someone, whether they are a family member or friend, before you take any steps to sell or change their assets or make gifts you need to consider if what you are doing is in the person’s best interests and affordable for their financial position. If you are in doubt, then an application can be made to the court of protection for approval of what you want to do.
For advice on acting as an attorney, making a lasting power of attorney or any other Court of Protection matter, contact Marie Tisdale on or email 01543 267 981 firstname.lastname@example.org.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.