probate help family getting out of control

securityguy

nom_de_plume wrote: »

An older Enduring Power of Attorney requires the notification of at least 3 family members when registering it

However, they are routinely used, and accepted, in unregistered form. They only need to be registered if the donor loses the power to make decisions; prior to that point, they can be used by the named attorneys without any other formalities. The definition of "losing the power to take decisions" is, of course, something of a movable feast. It's this sort of uncertainty that led to the changes in the process for lasting powers of attorney, which have to be registered at the outset.

If your father wasn't competent to manage his affairs and needed your sister as POA, how was your father able to make a new will?

There are, of course, plenty of reasons to be using a PoA which wouldn't make someone incapable of drafting a will.

Mojisola

Mojisola wrote: »

If your father wasn't competent to manage his affairs and needed your sister as POA, how was your father able to make a new will?

securityguy wrote: »

There are, of course, plenty of reasons to be using a PoA which wouldn't make someone incapable of drafting a will.

Which is why I said the bit in bold.

nom_de_plume

securityguy wrote: »

However, they are routinely used, and accepted, in unregistered form. They only need to be registered if the donor loses the power to make decisions; prior to that point, they can be used by the named attorneys without any other formalities. .

I vaguely recall it being suggested an EPA would need registering to sell a property but you are correct in that I used an unregistered EPA when dealing with banks on behalf of a relative and with no problems.

Crabapple

An EPA can be used for many transactions, usually bank accounts, without being registered. However, they must be registered if the person who made it has lost capacity and at that stage the nearest relatives have to be notified.

An LPA cannot be used in any way without it being registered. Registration does not however mean that the donor has lost capacity and there is no presumption that they can no longer manage their own affairs so the banks etc should take instructions from either the donor or their attorneys.

On registration of an LPA whoever is named in the document itself is notified. These do not have to be relatives at all so the nearest kin may never know that the document has been made or is being used.

ETA: actually no-one has to be notified at all, but if there is no person named in that section there must be two 'certificate providers' who confirm that the donor knows what they are doing and is not being coerced (in essence).

BobQ

micmac22 wrote: »

No this did not happen, but Dad let all the family know many many years ago that sister would have power of attorney but never said anything about her husband.

Yes but saying would have is not having POA.

A legal document properly witnessed by someone who has the ability to say the person is of sound mind is a POA. But to be exercised it has to be produced if requested to show the authority it grants.

What may have happened is that a Lasting POA was taken out (or years ago an Enduring POA) which basically says if I become incapable someone you name can exercise that POA. If it was done recently a LPOA can only be enacted by informing those named in the document and registering it with the Court of Protection. If this was not done then it would be invalid. But a LPOA and an POA are not the same thing.

Edit: Just read the previous post. Explains the LPA issue very well. POint being if your Dad was of sound mind the LPOA being registered does not mean that he could not use a cash card or ask you to withdraw cash for him. I had LPOA for a relative until recently. They were of sound mind but we registered it with the Court because she found it difficult to get to the bank or use an online account unaided.

micmac22

TBagpuss wrote: »

I agree with PPs that your original e-mail was unfortunate.

I would be inclinded to write to the solicitors. i do not know who they are and told by BIL not to contact them again unless through solicitors.

Say that you feel things got off on the wrong foot, that you were surprised to see BiL acting as executor as you would have expected your dad to appoint one (or more) of his own children, and in light of historical issues you were wary of dealing with him without evidence that he was the appropriate person. will wait for proof first, but yes valid response to give

Say that now you have that confirmation you are, of course, more than happy to cooperate fully to help them deal with the estate.

Then set out what you did, and when. Be clear that your father gave you money as gifts but that there was never any suggestion that this was an advance on your inheritance, and that you assume that if your father had intended that, he would have recorded that intention. (there is something called 'advancement' where gifts may be considered to be part of an inheritance, but I don't *think* this is generally presumed, I think there would need to be some evidence that that was the intention of the giver. good point.

Ask them if they need details of the lifetime gifts which your dad gave you and tell them that if so, you will do your best to provide this information but be clear that he did not give you all of the money you withdrew for him at his request and that you cannot give exact figures for cash gifts (assuming that is true) This is why i asked for paperwork & how he worked sum out.

The only period which may be an issue is that after the PoA came into effect - was this registered because your dad was no longer able to deal with his own affairs? If so, then I think this may mean that he was no longer competent to authorise you to withdraw the money for him or to give it to you, so you may have to return money given you within that final period (or offset it against your share of the estate) However, if it was simply a straight PoA it allows the holder to act on the donor's behalf but does not stop the donor also acting for himself, so your dad was still free to give you or your family gifts if he wished. POA came into force during hospital stay 2014, ( no monies withdrawn) just before going into care home in January 2014 when his will was amended with sister and BIL. ( sister sold his house under POA to pay for / self fund care home )

Do consider, too, whether you feel that your dad would have realised that he may have given you £26k (if that figure is correct) and whether he would, if he thought about it, have wanted that amount to be gifted to you over and above what you may get under the will. If you decide that he may not have realised that he had given you quite so much, you may decide that it would be ethically right to make some voluntary adjustment. But that is matter for you. To me, it would depend on things like how much the estate was worth in total (i.e. is £26K a big proportion of the estate) what your relationship with you dad was like, compared to his relationship with your siblings (i.e. how likely is it he would have favoured you over them, or wanted to reward you if you were more attentive to him during his lifetime)

from 2008 - 2014 i was the main carer,cleaner, odd job man, gardener, driver, personal shopper. i live local to him & first point of contact for dad. sister & BIL visit once a month ish, other sister in europe visit 2 -3 times a year & stay with dad, this sister knows all about payments and sees nothing untoward. and thank you TBagpuss.

micmac22

W1zz wrote: »

Are you sure that the most recent will has been obtained? sister & BIL changed it with dad beginning of 2014 when he went into care home.

Reason I ask, is that my father passed away over two weeks ago (5th May) and I've been sorting out his estate with my mother. We soon found out that their bank held a old copy of the the will from 15 years ago, but mum remembered they had made newer wills which she had a copy of.

Iam sorry to read of your familys loss and thank you for taking the time to reply to my questions.

micmac22

Mojisola wrote: »

Which is why I said the bit in bold.

My Father was 89yrs old, and sound in mind, no worse than me, just old aged catching him up and his body giving up under him.

nom_de_plume

micmac22 wrote: »

other sister in europe visit 2 -3 times a year & stay with dad, this sister knows all about payments and sees nothing untoward.

Will she back those thoughts up in writing, if need be?

I looked after an elderly relative some years back and their income far exceeded their outgoings. At least 2 or 3 times a year I was instructed, in no uncertain terms, to write a cheque out to myself for a 3 or 4 figure sum. They realised the money was of no use to them and it was their way of thanking me for my help. Anyone looking at the cheques / stubs could have pointed accusing fingers at me, particularly as the book was full of blank signed cheques and the relative was partially sighted, but it was all totally genuine and above board. Indeed, on the times I refused, the relative got quite angry with me!

micmac22

nom_de_plume wrote: »

Will she back those thoughts up in writing, if need be? i would think so, i am still waiting to hear from BIL solicitors.

I looked after an elderly relative some years back and their income far exceeded their outgoings. At least 2 or 3 times a year I was instructed, in no uncertain terms, to write a cheque out to myself for a 3 or 4 figure sum. They realised the money was of no use to them and it was their way of thanking me for my help. Anyone looking at the cheques / stubs could have pointed accusing fingers at me, particularly as the book was full of blank signed cheques and the relative was partially sighted, but it was all totally genuine and above board. Indeed, on the times I refused, the relative got quite angry with me!

i never wrote a chq out to myself or anyone else dad wrote his own chq's out.