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Disagreements between attorneys over a loved one’s affairs

Dementia Action Week- Day 5 Disagreements between attorneys over a loved one’s affairs

My mother has dementia and has appointed her three children as her attorneys. I have always cared for mum, but now one of my sisters (who was never very involved with mum) has started to try to make decisions that I don’t agree with.

It is a relatively little discussed fact that, where there is more than one attorney, they may well argue over a whole range of issues in the course of acting. In fact, family/attorney disputes and mental incapacity is a fast growing area of our practice.

In this case, mum has done the right thing by getting a power of attorney in place, and it may be that she chose just the right people as her attorneys. However, most people are not prepared for the emotional impact of caring for someone with dementia. They may well have feelings of guilt, grief and anger. They may have sought advice (formally or informally) and may even have their own agenda, no matter whether they realise it or not.

There are two important first steps when advising on matters such as this: (1) how are the attorneys appointed and (2) how are they conducting themselves compared with the duties placed upon them in law?

Attorneys can be appointed jointly (so they have to agree on everything), jointly and severally (where they can agree, but can also act independently) or a mixture of the two. Whilst this can provide a legal answer as to whether someone can take a particular decision or action, it does not alter the fact that attorneys must act as a team and in the person’s best interests.

How do you go about trying to resolve differences of opinion?

Usually, the subject matter is incredibly emotive which can lead to unconscious bias, suspicion or simply miscommunication. The first step is to establish what the person’s needs are and the areas of contention. For instance, there may be a disagreement on whether to sell mum’s house and invest the proceeds, or rent it out. Either alternative can be appropriate, depending upon the circumstances. However, we might first of all look at what mum’s financial requirements actually are in the short and long term. We can then work out if rental income will meet her needs, or if capital is required, (which might point to the house needing to be sold). Assuming the capital isn’t needed at present, we might then compare the risk and cost of each investment versus projected income and its potential for capital growth.

Once we have the facts to hand, it is often the case that the parties will be more alive to compromise, bearing in mind their duties to act in the person’s best interests.

However, if agreement cannot be reached, we might then organise a Best Interests Meeting, which is independently chaired and attended by the person’s support network and relevant professionals. This allows us to collaboratively focus on what mum’s needs are, in a non-confrontational way. The professionals can assist the parties in ensuring they know their legal duties so that, ultimately, compromise can be reached in a professional, structured way.

Of course, sometimes, the parties are not able to agree and, in such a case, when all alternatives have been exhausted, it may be appropriate to ask the Court of Protection to help decide the issue. However, this is time consuming and expensive. In addition, if the Court feels that the parties have not been acting in the person’s best interests, it may Order the parties to pay all or part of the costs.

How can Cognitive Law help?

We have a huge amount of experience, not just in mental capacity law, but also in the practicalities of supporting people in a caring role. Understanding the law, but also working to and developing ‘best practice’ means that, once we have reminded the parties who should be at the centre of all decisions, we can often bring compromise without the cost and stress that a Court application can bring. Indeed, the vast majority of cases are resolved this way and lead to closer teamwork between the parties, even if they do continue to disagree on issues. We also provide a framework for future respect and discussion, all to serve the best interests of the person requiring love and support.

Richard Bates