Q. My mother was advised to sign an Enduring Power of Attorney so that it would make things easier for us all if she started to go downhill. She made two of my sisters her Attorneys and they cannot agree on anything. Instead of making things easier, it has made them a lot worse. The latest disagreement is about what of Nursing Home she should go to and my mother has been in hospital for a year because they can’t agree There are three other children in my family. What can we do?
A. This is a disaster, and more so because your mother acted on sensible advice in anticipation of a time when she could no longer be sensible herself. You do not say whether your sisters are appointed Jointly or Jointly and Severally, but either can lead to stalemate.
In the case where the Attorneys have to act jointly, neither of them can decide or achieve anything without the consent of the other. In the case where they can act jointly and severally, each can be constantly undermining the decisions and achievements of the other.
I find that when clients are doing Enduring Powers of Attorney, their overriding concern is that there should be no rows in the family. I am guessing that your mother probably hoped that if she appointed two people who were always rowing, they would be forced to cooperate. This has not happened and never does.
As to what can be done, I am assuming that your mother can no longer make a decision on this. If she could, then she would do well to revoke this Enduring Power of Attorney and make another one appointing different Attorneys or maybe a single Attorney with a substitute. If it is too late for that, then the only way out is for an application to be made to the High Court to set aside the Enduring Power of Attorney on the grounds that the Attorneys are unsuitable. The very prospect of that happening might be enough to unite your sisters in your mother’s interests. Failing that and if the High Court sets aside the Enduring Power of Attorney, your mother will probably be taken into Wardship, which is what she was trying to avoid in the first place. The moral of the story is to appoint Attorneys who get on with one another if you want two Attorneys.
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