Other Executors family trying to get Power of Attorney

Molly2473

ok, im executor with my fathers partner (my brother power reserved) I have nearly finished dealing with the affairs but now my dads partners son and his wife are trying to get power of attorney for her. She is confused some times following a stroke, they say she is not mentally capable of dealing, but I think she still is. can she be excused or will her son take over ( I don't think his intension are honourable) can anyone shed any light on this subject? many thanks for reading.

nom_de_plume

Can you expand on what you mean by dishonourable? Whether or not she is capable of dealing with your father's estate, presumably either a will or the letter of the law regarding intestacy is being followed?
Are you suggesting they are intending to take advantage of your father's partner?

Molly2473

nom_de_plume wrote: »

Can you expand on what you mean by dishonourable? Whether or not she is capable of dealing with your father's estate, presumably either a will or the letter of the law regarding intestacy is being followed?
Are you suggesting they are intending to take advantage of your father's partner?

I do all the administration I just explain and show paperwork to the other executor and she signs whats needed but doesn't actually do any of the work.
she has at times said I don't feel well enough or cant be bothered by all this.
Her son and his wife although I cannot prove anything I have a nasty feeling and things that have happened in the past which cant be proven.
I do feel that they intend to take advantage of my fathers partner and there is a property involved but I am now the co-owner (all legally done, noted with land registry so neither party could do anything without the other party)
I feel the answer may be for my brother who has power reserved to step up and extract? how is this done and can it be done with him living overseas (not ideal but in theory I could send over what ever needs signing)
Its quite complex and the administration has taken 3 years so far.
Thanks for reading

troubleinparadise

If an executor becomes incapable of doing their duties by lack of capacity, I suspect they have to stand down; I don't think a newly appointed POA can take over their executorship.

It may well be that your father's partner does not have capacity to cope - it could be easier to re-instate the stood-down executor and continue that way.

Molly2473

troubleinparadise wrote: »

If an executor becomes incapable of doing their duties by lack of capacity, I suspect they have to stand down; I don't think a newly appointed POA can take over their executorship.

It may well be that your father's partner does not have capacity to cope - it could be easier to re-instate the stood-down executor and continue that way.

I have been searching for info on how to re-instate executor with Power Reserved can anyone point me in the right direction for info?. (my brother lives abroad, although will be awkward I don't think it should be impossible) also how to stand down an executor.

Many Thanks

troubleinparadise

This does sound a slightly difficult situation - is there still much work outstanding before the estate is finally distributed?

Do you actually need to reinstate the third executor? Or is it that you feel the need for a united front and proof of 'check and balance' of your actions as an executor, and against the intentions of the son?

The following are just a few thoughts as to where you might find out a little more:

Perhaps the Probate Office might help out with regard to the process of reinstating your brother with reserved power executorship, and your query about the capability of your father's partner.

The Office of the Public Guardian which grants LPAs etc might be able to say whether Attorneyship allows that person to take over the role of an executor from someone no longer deemed to be mentally fit to continue. Perhaps worth a call?

Good luck'

System

From what I can find, the person with the power reserved needs to apply for probate in their own right resulting in a double probate situation.

See http://www.ts-p.co.uk/uploaded/publications/information_sheets/Probate/power_reserved.pdf

rpc

Call the probate office and ask the questions there. They shuold be able to tell you if PoA covers executor duties, what happens when an executor becomes mentally unfit and also how to "unreserve" powers.

If they think she is not mentally sound, she can't grant them power of attorney. They would have to apply for deputyship which is not a quick and easy thing to do...

System

I don't believe PoA would cover executor roles.

PoA is designed to look after a person's welfare, property, health and finances.
Executorship is a role given by the testator and does not fall under any of the above areas.

ETA

Further reading seems to indicate that the ONLY time that a person with the POA can act as executor in place of the named person is if the named person is the SOLE executor and the Court of Protection agree to it.

dzug1

An executor, whoever they are, must carry out the instructions in the will.
Are you saying that the son would ignore the will and not do that?

Or are you saying he will misuse his attorney role, if granted, and filch stuff whilst the donor is still alive?

Or both?

If he applies for power of attorney you have the right to object - you should be informed in advance but that cannot be relied on. If the donor lacks capacity she cannot give power of attorney but the OPG can grant deputyship instead. If there is any dispute as to who should be deputy then the probability is they will take it on themselves. They are slow and expensive in this role.

Mojisola

Molly2473 wrote: »

ok, im executor with my fathers partner (my brother power reserved) I have nearly finished dealing with the affairs but now my dads partners son and his wife are trying to get power of attorney for her.

dzug1 wrote: »

If he applies for power of attorney you have the right to object - you should be informed in advance

I don't think the children of a deceased partner would be informed about POA. The only people notified when I became POA for Dad were my siblings.