POA sorted , but problem with Wills

[Linbrusco]

I don't know how I overlooked this.
I remember seeing Mum & Dads will sometimes ago but didn't give it a second thought.
They were done in 1991. There property & finances are very simple.

Got all the POA's done in 2011, with Mum being diagnosed with AD in June 2013.
GP has deemed Mum incapable of making decisions regarding her health but nothing formalised or advised to the lawyer.

I have managed to get all Mums paperwork off her for safekeeping, and thinking that my sister & I are Executors of Mum & Dads will, to find that they have named each other as Executor, with us as Executors only if the other is deceased.

This means if anything happens to Dad , and Mum is Executor, depending on how far advanced her AD is and unable to sign etc, she would not be able to forfill the duties required or apply for Probate.
If Mum should pass, dad would ( at this stage ) be able to with help from us.

A POA cannot forfill an Executors role.

Any thoughts on this one?
I don't imagine laws would be much different from country to country?

 

[jenniferpa]

I don't think it is a big deal. One of the beneficiaries can apply to be an administrator.

Rats. I didn't realise you were in NZ. Where are your parents?

 

[MrsTerryN]

Linbrusco unfortunately I can relate when dad died mum was executor. Fortunately most things were joint and therefore by default mum inherited but there had been some quirky bits.
For example dad hadn't received some share dividends, wrong back account or some such thing. Only a couple of thousands . Mum as executor had to sign the papers to receive those funds. Mum no longer had capacity to do so. I , as POA , had changed mum's shares same company no dramas.
The upshot is they will hold the funds until mum has passed away and her executor can receive them. I do get frustrated when these places say " oh just get her to sign" they don't seem to understand I will not have mum sign something she doesn't understand

 

[Linbrusco]

They are in NZ also
Actually I think for peace of mind I may go to our lawyer, least of all somone experienced in legal matters when it comes to our laws regarding care and funding.
Never ending is it

 

[nitram]

"A POA cannot forfill an Executors role."


This seems to say otherwise.

If,—
(a)on the date of a person's death or within 3 months after that date, the donor is or becomes mentally incapable; and
(b)there is an attorney in respect of that donor,—
the court may, on the application of the attorney, make a grant of administration to the attorney.

9A (2)

http://www.legislation.govt.nz/act/public/1969/0052/latest/whole.html#DLM392697

 

[Owly]

The exact same thing happened to us, I discovered that Dad's will named my Mum as executor and she had dementia by then. Quick solution was to get Dad to make a new Will naming me as Executor and my sister as fall-back if I was "unable or unwilling" to act (covering multiple possibilities!).

 

[Linbrusco]

"A POA cannot forfill an Executors role."


This seems to say otherwise.

If,—
(a)on the date of a person's death or within 3 months after that date, the donor is or becomes mentally incapable; and
(b)there is an attorney in respect of that donor,—
the court may, on the application of the attorney, make a grant of administration to the attorney.

9A (2)

http://www.legislation.govt.nz/act/public/1969/0052/latest/whole.html#DLM392697

Thanks Nitram. I had googled some other NZ Law sites, which stated otherwise?

 

[nitram]

I would trust a NZ Government document reprinted 13/09/14.

It makes sense as the donor chose the attorney to act on their behalf.

 

[MrsTerryN]

Darn I wish Australia nsw had that nitram