Executor who also held POA difficulties

[Violet Jane]

As I understand it, with financial POAs the attorney can act - alongside the donor - before the donor has lost capacity if the POA provides for this.

The general rule is that an attorney can't benefit from the POA but I assume that if the donor still has capacity s/he can as it's the donor who is making the decision.

Your BIL has mentioned gifts. Has your wife asked him outright how much the gifts were for and when they were made? I have to say that giving huge sums to one child and nothing at all to the other, in the absence of some compelling reason, seems very unfair and your BIL acted in a very shady way in accepting them, particularly without telling your wife. But that's greed for you, and lack of decency and moral scruples. Presumably, your wife is going to have nothing more to do with him.

Why do you think that your wife wasn't appointed as an attorney and an executor? It's a bit unusual just appointing one of each if there is more than one child unless the other child is unreliable in some way or the donor and the child are not on good terms. Certainly, I think that most solicitors would advise more than one of each but perhaps this POA and this will were drawn up without the involvement of solicitors.

 

[Jaded'n'faded]

Disclosure: I am a cynical suspicious person!

There are a few red flags here, the main one being that BiL changed the Will so that he was the sole executor. This is because he knew that as PoA and executor, he didn't have to disclose details of MiL's estate (before or after death) to anyone. In other words, he could use her money, take her money, put it on the horses if he wanted because the only person who was going to question the remaining amount is the executor, i.e. him. His misuse of funds would have come to light if your wife was a joint executor but this way he was able to get away with it.

As you have found, it's extremely difficult to prove anything without access to MiL's financial records though you know very well none of it adds up. As for giving him a large gift, again he's been quite clever because as long as her care fees were paid, no one would accuse him of deprivation of assets. Any responsible PoA would stop a person with dementia giving away a large amount of their money - that's part of the job.

If he hadn't done at least some of the above, why is he hostile?

But all this is just in my head. I'm afraid I don't know what you can do about it.

 

[Chaplin]

@UncleRobert when your BiL had the POA registered he would have to have had someone like a Doctor confirm that your MiL had capacity. Do you know when she was diagnosed with dementia?

I appreciate POA is no longer relevant but a solicitor’s letter to your BiL asking a few pointed questions, asking him to share the financial records may just make him realise he needs to be transparent or could find himself in a criminal court justifying himself to thorough questioning. Regardless of whether he deprived her estate of assets for care fees or not, acting as POA you have a legal responsibility to look after that persons affairs appropriately!

My understanding when we were POA for mum, is we could award gifts to family members in line with what she would have done if she were able to manage her own affairs. We only made small gifts to grandchildren or great grandchildren.

 

[UncleRobert]

As I understand it, with financial POAs the attorney can act - alongside the donor - before the donor has lost capacity if the POA provides for this.

The general rule is that an attorney can't benefit from the POA but I assume that if the donor still has capacity s/he can as it's the donor who is making the decision.

Your BIL has mentioned gifts. Has your wife asked him outright how much the gifts were for and when they were made? I have to say that giving huge sums to one child and nothing at all to the other, in the absence of some compelling reason, seems very unfair and your BIL acted in a very shady way in accepting them, particularly without telling your wife. But that's greed for you, and lack of decency and moral scruples. Presumably, your wife is going to have nothing more to do with him.

Why do you think that your wife wasn't appointed as an attorney and an executor? It's a bit unusual just appointing one of each if there is more than one child unless the other child is unreliable in some way or the donor and the child are not on good terms. Certainly, I think that most solicitors would advise more than one of each but perhaps this POA and this will were drawn up without the involvement of solicitors.

Hi thanks for your thoughts, much appreciated. MIL was deemed to have capacity when POA was taken out but she was very confused and wandered. My OH did not know that a POA was in place until much later in the day. BIL seems to have moved most of her money into a different bank account as soon as the POA was approved, he moved her out of her home and sold her house. All of the monies from way back then seem to be "missing" or unaccounted for. My wife has asked about the amount of gifts and about where the money was spent but he's not for saying and gets really angry. I definitely won't have anything to do with him but the wife is a bit softer in her approach. But she is getting suspicious now he is acting so aggressively. My wife was named as an executor but found out that the will had been changed at the same time as the POA was put in place to be just him alone. She didn't think that would be a problem but it is now.

 

[UncleRobert]

Disclosure: I am a cynical suspicious person!

There are a few red flags here, the main one being that BiL changed the Will so that he was the sole executor. This is because he knew that as PoA and executor, he didn't have to disclose details of MiL's estate (before or after death) to anyone. In other words, he could use her money, take her money, put it on the horses if he wanted because the only person who was going to question the remaining amount is the executor, i.e. him. His misuse of funds would have come to light if your wife was a joint executor but this way he was able to get away with it.

As you have found, it's extremely difficult to prove anything without access to MiL's financial records though you know very well none of it adds up. As for giving him a large gift, again he's been quite clever because as long as her care fees were paid, no one would accuse him of deprivation of assets. Any responsible PoA would stop a person with dementia giving away a large amount of their money - that's part of the job.

If he hadn't done at least some of the above, why is he hostile?

But all this is just in my head. I'm afraid I don't know what you can do about it.

Hi thanks for your disclosure, maybe I'm one too?
You are saying what one of our friends and neighbours said. If the will had not been altered my wife would be able to access all records. It was the only thing changed on the will and only came to light after MIL's death. I'm sure most ordinary folk don't know enough about this sort of thing. BIL came across as being kind and caring and taking the burden away from the family members. But maybe he was just been calculating. I feel this is wrong but don't know if anything can be done about it.

 

[UncleRobert]

@UncleRobert when your BiL had the POA registered he would have to have had someone like a Doctor confirm that your MiL had capacity. Do you know when she was diagnosed with dementia?

I appreciate POA is no longer relevant but a solicitor’s letter to your BiL asking a few pointed questions, asking him to share the financial records may just make him realise he needs to be transparent or could find himself in a criminal court justifying himself to thorough questioning. Regardless of whether he deprived her estate of assets for care fees or not, acting as POA you have a legal responsibility to look after that persons affairs appropriately!

My understanding when we were POA for mum, is we could award gifts to family members in line with what she would have done if she were able to manage her own affairs. We only made small gifts to grandchildren or great grandchildren.

Hi I believe that a lawyer confirmed that she had capacity. But I'm not sure. BIL is not happy to answer any questions. I believe this as her will was altered on the same date as the POA was drawn up. According to BIL she last capacity in 2019 just before having to go into a residential care home. But I know he was using the POA right from the beginning (2015)

This is where I get really confused. Even if she was deemed to have capacity, the fact that he was using his powers (in the POA) must mean that if he took "gifts" he should not have as that was not in her best interests? Even if she said he could take some money. If someone you know and love and who you know is suffering from dementia, even in the early stages, you would thank them and say, NO. You may need it in the future. Or am I too idealistic?

I would like to progress, as you say, with a legal letter but I don't want to push my OH. She can't believe that her brother would be like this. If she had been the POA every penny would have been fully accounted for.

 

[Violet Jane]

What I'm about to say applies to England. I really don't understand the funding system in Scotland.

When someone applies for funding for care costs the LA look at his/her her bank records and there is no time limit on how far they can go back. They look at current assets and also check whether there has been any deprivation of assets. Large transfers to third parties would certainly be be questioned. So, I'm wondering how your BIL got round this. If the transfers were made some years before the dementia diagnosis and the subsequent application for funding it's possible that they were not regarded as suspicious.

Your wife could threaten to go to the police or the OPG and allege theft or to go to the LA and allege deceit / deprivation of assets. But if the transfers were made very early on when your MIL had capacity to sign a POA and alter her will he could simply state that they were gifts and that she had legal capacity to make them.

Your BIL's evasiveness is fuelling suspicion. If he has nothing to hide then why doesn't he show her the accounts? Could your wife tell him this? I suspect that he has taken / accepted large sums from your MIL but whether he has done anything unlawful or illegal is another matter.

I can't understand why your wife would want to go on seeing someone who appears to have cheated her out of her inheritance. She should certainly never trust him with anything again.

 

[Banjomansmate]

Mother’s house was sold and she was moved into residential care. LA wouldn’t be involved.

 

[The truthwillprevail]

Hello. I have read your posts. I hope that the information I’m about to impart will be useful. I have experienced the same sibling being the sole executor and the POA. I also reside in Scotland. As a beneficiary I contacted the solicitor who was instructed to carry out the administration of the estate. Funny that, they advised that as my sibling was the executor he had no intention of allowing a beneficiary to question his actions as the POA. First red flag 🚩 The executor has sole control. . (Not sure if you’re bil instructed a solicitor) I requested a copy of all bank statements for my mother’s bank account and savings account from the time my father had died,(6 years) prior. My father also had 2 private pensions that went to my mother. Same sibling had moved money out of my mother’s accounts and created joint accounts in my mother’s name even though she had lost capacity. A POA is not allowed to do that. He also helped himself to the tune of 85k I reported this to the OPG who are beyond useless, I engaged at great length with them, they don’t want to know when the grantor has died. So when my mother died, same sibling had control over the money. The point is, your wife can go to your mil’s bank. I did exactly that and walked out with my own copies of the bank statements. Take the Will with you. Get the bank manager to contact the police and report fraudulent activity. If something doesn’t feel right then go with your gut instinct. I did exactly that. It has taken me 3.5 years to get to the truth. I have recently made an application to the Court of Session to reduce my mother’s Will, (sibling set up the meeting with a solicitor to create a POA & a Will and present throughout) which as it turns out was never paid for, and also (allegedly executed by same solicitor my sibling appointed to administer the estate) ( bank statements confirmed that) I also have medical evidence to confirm lack of legal capax ( also got hold of full medical records) at the time the POA was drafted and executed. I managed to get hold of the solicitor’s file notes too. (A story for another day) They opened Pandora’s box for sure. I have represented myself as a party litigant at the Court of session Edinburgh and I’m just waiting on the decision on my application to reduce my mother’s Will. = litigation time! Once you have the bank statements you will be in a far better position to engage with the bil. Best wishes

 

[Kevinl]

It is worth flagging up that this Scottish law the situation is covered by, which differs from other parts of the UK, so, sorry I cannot hel, other than to ask how low can some people go, taking money from the elderly and family at that. Just beyond belief. K