Executor who also held POA difficulties

[UncleRobert]

My wives mother died over a year ago. She had dementia and had been in hospital for over a year, before that in a care home (around 18 months) and before that in sheltered housing. A POA was put in place around 2018 with my brother in law being the only attorney. My wife thought she was a joint executor with her brother in her mums Will but found out after she had died that that had been changed to her brother being the only executor. My wife and her brother have never been that close but have always got on, so she was not concerned to find this out. Her brother always seemed to be an upstanding person. He seemed to be looking after his mother well and my wife felt included in decisions.

So after mother in law died my wife was sent the final estate account. She got quite a shock. Her father died many many years ago and her mum was left with the family home and was comfortably well off with various pensions from work and private sources. My wives brother says there is only around £10,000 left in the estate, before expenses.

My wife doesn't want to make a scene, but did ask what had happened to all of her mother (and fathers) money. Her brother will not answer any of her questions and remains insistent that the final estate accounts are correct.

Neither of us wants to make a big deal of this but my wife asked her lawyer for advice and was told that because the executor was the same person as the attorney there is nothing she can do as she does not have the right to access any of her late mothers affairs. Does any one know if this is a typical situation, where the executor and the attorney are the same person? How can my wife get access to evidence that might show that the money has been taken or mis-used? We are in Scotland.

 

[Louise7]

Hello @UncleRobert I don't think that it's unusual (or inappropriate) for an attorney to also be an executor, it would be up to the individual to decide who they wanted to undertake these roles. Although your MIL may have been left comfortably off many years ago when her husband died, paying for things like sheltered housing, care home fees and general living costs over these many years will no doubt have resulted in some significant costs. As your wife and your brother have always got on, she felt involved in decisions, and her brother seemed to be looking after their mum well, I'm not sure how you would start looking for 'evidence' of whether he has taken or mis-used money without having anything more substantial than a suspicion that something might have gone on? Others may have suggestions, but I think it's a good idea to think carefully about how this could impact on family relationships, particularly as neither of you want to make a big deal of this.

 

[SAP]

I am attorney and one of the executors for my mum, this is not unusual. The role of attorney stops the moment a person dies and the executor roll starts following death so the two are never done at the same time.
I’m no expert on wills so I can’t comment on that, know you can contest a will but not sure about questioning the remaining estate. Like @Louise7 has said 18 months is care is an expensive business and sheltered accommodation will have also been pricey, the pensions alone will probably not have covered the monthly costs .

 

[Violet Jane]

It isn't unusual for an attorney and an executor to be the same person.

You could attempt a *very* rough calculation to see whether an estate of only £10,000 is reasonable if you know what your MIL's house was sold for and what the costs of sheltered housing and the care home would have been. Someone can be comfortably off until they start paying for care costs which can be very substantial, certainly in England where care homes routinely cost over £1,000 a week - and can cost much more - and care at home can cost hundreds of pounds a week. Being in Scotland does complicate the matter as care costs are, as I understand it, met by the state. On the face of it, it does look suspicious and your BIL's refusal to answer questions is also suspicious. If he has nothing to hide then he should be prepared to explain how your MIL's assets were used.

Short of hiring a private detective who is able (probably illegally) to access your MIL's and your BIL's bank accounts I'm not sure what you can do.

In England grants of probate are in the public domain and you can see the value of the estate and, I believe, the will if there is one. If the position is the same in Scotland then you could check that your BIL is not lying about the size of the estate. That wouldn't help with the question of how your MIL's assets were used before her death.

 

[UncleRobert]

I am attorney and one of the executors for my mum, this is not unusual. The role of attorney stops the moment a person dies and the executor roll starts following death so the two are never done at the same time.
I’m no expert on wills so I can’t comment on that, know you can contest a will but not sure about questioning the remaining estate. Like @Louise7 has said 18 months is care is an expensive business and sheltered accommodation will have also been pricey, the pensions alone will probably not have covered the monthly costs .

Hi Thanks for the reply. As you are also an attorney and will become and executor, will you be the only executor. That's where my wives lawyer said the problem arose as no-one can question the attorney about things before death except the executor who was the only attorney. So he would be asking himself, if you see what I mean.

 

[UncleRobert]

It isn't unusual for an attorney and an executor to be the same person.

You could attempt a *very* rough calculation to see whether an estate of only £10,000 is reasonable if you know what your MIL's house was sold for and what the costs of sheltered housing and the care home would have been. Someone can be comfortably off until they start paying for care costs which can be very substantial, certainly in England where care homes routinely cost over £1,000 a week - and can cost much more - and care at home can cost hundreds of pounds a week. Being in Scotland does complicate the matter as care costs are, as I understand it, met by the state. On the face of it, it does look suspicious and your BIL's refusal to answer questions is also suspicious. If he has nothing to hide then he should be prepared to explain how your MIL's assets were used.

Short of hiring a private detective who is able (probably illegally) to access your MIL's and your BIL's bank accounts I'm not sure what you can do.

In England grants of probate are in the public domain and you can see the value of the estate and, I believe, the will if there is one. If the position is the same in Scotland then you could check that your BIL is not lying about the size of the estate. That wouldn't help with the question of how your MIL's assets were used before her death.

Hi, thanks for the reply. Yes, my wife did that sort of rough calculation and that's why she was so shocked by the £10,000. She did not have the exact figures on the cost of sheltered housing but it was in the region of £600 a month and the care home costs were more, but no figures. My wife estimated, using all the information that she had, sale price of the house and her mother's pension amounts that at the end she should have had over £150,000 in the bank. That was a very conservative estimate. Probate is different here I think, but as the estate amount was so low it did not go through the courts for confirmation (same as probate I think)

I think what is upsetting my wife the most is not the money but the fact that her brother will not tell her anything. He refuses to even discuss it and has become a little abusive.

 

[Kelvin20]

In Scotland the local authority only pays an allowance for personal care so if self funding anything upwards of a thousand pounds a week may still have to be found. As unless there is substantial pension provision this has to come from property sale or other means, so it is easy to run through funds quickly. If there is a will I would expect the executer has to provide a full account of where money has gone. I hope all is resolved for you without any family dispute or ill feeling. Good luck and best wishes. x

 

[UncleRobert]

In Scotland the local authority only pays an allowance for personal care so if self funding anything upwards of a thousand pounds a week may still have to be found. As unless there is substantial pension provision this has to come from property sale or other means, so it is easy to run through funds quickly. If there is a will I would expect the executer has to provide a full account of where money has gone. I hope all is resolved for you without any family dispute or ill feeling. Good luck and best wishes. x

Hi Kelvin20 I had forgotten a part of what my wife told me. Her mum wasn't self funding in the care home. She was told this by her brother. He also mentioned that he had received gifts of some sort from his mother. But we couldn't make out how some gifts would have made the end amount so low.

 

[Kelvin20]

I understood that “gifts” could be regarded as deprivation of assets when what has to be paid towards care is calculated. The SS are usually quite strict on this so it could spell trouble ! Hope you get it all sorted.

 

[SAP]

No I won’t be the only executor but there are other family issues with that for me that are not related to this. Once a person dies the attorney ceases to exist so an executor would not question them as they only deal with the estate as is not as it was if that makes sense. ( might be different in Scotland)

 

[UncleRobert]

Sorry to go back to this but I've got more info from my wife and just wondered if this all sounds ok or if, as she suspects, sounds a bit strange.

MIL had POA put in place late 2015/ early 2016. It was used immediately by BIL (who held the POA) to move her funds to stop her over spending etc... and to move her (reluctantly) to Sheltered accommodation near to his home. BIL also sold her house in 2016 as legal agent for the owner. BIL says that the gifting took place from 2015 until 2019. It was in 2019 that the dementia diagnosis was made. He won't say how much he was gifted. So the wife says that at this stage (2019) she had not been in a care home. So at this stage my wife knows there was approx. £200,000 in her mums bank.

BIL is now becoming very threatening to my wife. She asks him questions and he is rude and condescending back. I think that's why she is suspicious.

 

[Kevinl]

Regular gifts given over years can be exempted.
K

 

[SAP]

If your MIL was considered to have mental capacity at this point then she may well have gifted your BIL cash and it looks like there is little that can be done about it . He may have acted unfairly but unless he deprived her of assets to pay for care then he probably has not acted illegally. If the gifting was over 7 years ago then there will be no IHT to pay on these gifts, if it was during the 7 years leading to death then tax is paid on a sliding scale.
My mum gifted my sibling and I a large sum of money some years ago, as it is over 7 years and she definitely still had capacity at that point, then as far as LPA/executor/HMRC are concerned it’s a done deal.

 

[UncleRobert]

If your MIL was considered to have mental capacity at this point then she may well have gifted your BIL cash and it looks like there is little that can be done about it . He may have acted unfairly but unless he deprived her of assets to pay for care then he probably has not acted illegally. If the gifting was over 7 years ago then there will be no IHT to pay on these gifts, if it was during the 7 years leading to death then tax is paid on a sliding scale.
My mum gifted my sibling and I a large sum of money some years ago, as it is over 7 years and she definitely still had capacity at that point, then as far as LPA/executor/HMRC are concerned it’s a done deal.

Thanks for the info. That makes sense.

 

[UncleRobert]

If your MIL was considered to have mental capacity at this point then she may well have gifted your BIL cash and it looks like there is little that can be done about it . He may have acted unfairly but unless he deprived her of assets to pay for care then he probably has not acted illegally. If the gifting was over 7 years ago then there will be no IHT to pay on these gifts, if it was during the 7 years leading to death then tax is paid on a sliding scale.
My mum gifted my sibling and I a large sum of money some years ago, as it is over 7 years and she definitely still had capacity at that point, then as far as LPA/executor/HMRC are concerned it’s a done deal.

Sorry, just thought about this again. If the gifting was done by my MIL to her POA is that allowed? I thought someone else said that a POA must not benefit from their position. The POA had control of all of her finances from 2015 and was using his powers even although she had not lost capacity. This is such a complex area I'm going round in circles. I thought that gifts should be considered as things like for birthday presents etc not all of her capital. BIL looks to have been gifted all of her money just before she had to go into the care facility. Thanks.

 

[SAP]

Well I suppose it comes down to evidence. Can you prove that your BIL used the POA to do this rather than your mother said it was ok for him to do this.
I know this is not what you want to hear but the reality is the OPG are very unlikely to take any interest now that the LPA has ceased due to your MILs death. You have no actual evidence that she did not say he could do this . You are correct that the attorney should not gift themselves but you can’t prove that he did only that the sums now left do not tally with what your wife thinks should be left in the estate.
Many on here feel that the regulations need to be changed as vulnerable people are easily being duped by unscrupulous family and proof in terms of hard evidence is difficult to come by.

 

[Chizz]

Sorry, just thought about this again. If the gifting was done by my MIL to her POA is that allowed? I thought someone else said that a POA must not benefit from their position. The POA had control of all of her finances from 2015 and was using his powers even although she had not lost capacity. This is such a complex area I'm going round in circles. I thought that gifts should be considered as things like for birthday presents etc not all of her capital. BIL looks to have been gifted all of her money just before she had to go into the care facility. Thanks.

Hi,
All you can do, as I see it, is to speak with your solicitor to see (i) how long and (ii) how much it would cost for your OH to apply to the Court for a review of the administration of the estate, which should include a statement of the assets as at the date of death, Thus, you would see what assets / funds there were, apart from the property. Whether you could get statements for the last two or so years of your MiL's life to show what if any gifts brother as Attorney had made, could be a request to the Court if your OH is suspicious of malfeasance.

 

[UncleRobert]

Well I suppose it comes down to evidence. Can you prove that your BIL used the POA to do this rather than your mother said it was ok for him to do this.
I know this is not what you want to hear but the reality is the OPG are very unlikely to take any interest now that the LPA has ceased due to your MILs death. You have no actual evidence that she did not say he could do this . You are correct that the attorney should not gift themselves but you can’t prove that he did only that the sums now left do not tally with what your wife thinks should be left in the estate.
Many on here feel that the regulations need to be changed as vulnerable people are easily being duped by unscrupulous family and proof in terms of hard evidence is difficult to come by.

Thank you for your thoughts. I think you have got to the heart of her problem. She only became concerned when her brother refused to discuss where all the money had gone or how it had been spent. If it had been spent on her mother she would have no problem. She asked her brother to show the permissions he had from their mother and this sent him into a tail spin. The real difficulty is that her brother was both the attorney and the sole executor. A lawyer told her that if they were different individuals she could ask the executor to question the attorney to provide evidence. But as her brother held both positions it would not be in his own interests to ask himself how the money was spent. If you know what I mean. Yes, the OPG are only interested whilst someone is alive and my wife didn't think anything was wrong until after her mum died.

 

[UncleRobert]

Hi,
All you can do, as I see it, is to speak with your solicitor to see (i) how long and (ii) how much it would cost for your OH to apply to the Court for a review of the administration of the estate, which should include a statement of the assets as at the date of death, Thus, you would see what assets / funds there were, apart from the property. Whether you could get statements for the last two or so years of your MiL's life to show what if any gifts brother as Attorney had made, could be a request to the Court if your OH is suspicious of malfeasance.

Hi This is where we both get really confused. My wife did ask her lawyer about this sort of thing. She thought that the court could ask for a review of the admin of the estate, but the lawyer said that as these things look to have happened before death it was up to my wife (as a beneficiary) to ask the executor to approach the attorney to complete an investigation. The only other option was to ask the executor to lend their powers to someone else but the executor could refuse. Again, it seems to be that the problem lies in the fact that the executor and the attorney were/ are the same person. I understand that in most cases the attorney and the executor being the same person should not be a problem. But in this instance it looks like he is trying to hide something. What, we are not sure. But anytime my OH asks for any information he gets really really hostile.

 

[Kevinl]

£600 a month for the accommodation, sure that's not a week?
No real idea how it works in Scotland so I won't comment but gas, electric, water, council tax, the bills do add up and since 2018 is a few years ago now you could get through a few quid in that time.
As power of attorney ends when you pass away and executorship doesn't start until then you're not both at the same time.
K