Power of attorney and will

Horizon81

Hi folks I am hoping you can offer me some advice regarding a predicament I expect I will shortly find myself in.

In short, my father is in a nursing home and is nearing the end of his days. He has 2 sons (myself and my brother and we are estranged). My brother has managed our father's financial affairs since losing mental capacity. I do not know the exact arrangements but suspect power of attorney.

My father created a will several years ago (before losing mental capacity) and explained to me that myself and my brother are both named in the will.

My father was privately funded in the care home however his savings were running out I believe, hence my brother put our father's house up for sale and the sale has now been agreed.

My question really centres upon the fact my brother and I are estranged and that he has this power of attorney over our fathers assets (or rather now the sum of money from the house sale). What will happen when my father does die, in terms of executing the will? What if my brother has transferred the money to himself? How does a will get executed when someone has power of attorney? Is there some sort of legal framework to prevent abuse of the power of attorney system by an unscrupulous sibling with power of attorney.

So many questions, but I really don't know what to expect and need to get clued up.

Yorkshireman99

The POA ceases upon death. It has nothing to do with the executors of the will. The only way to deal with abuse of a POA is to apply to the Court of Protection who oversee POAs. This is neithewr easy ot cheap. You would need actual proof to convince the court. The executors named in the will have to apply for probate.

Linton

The power of attorney disappears on the death of the donor. All power lies with the executor(s) who should be specified in the will. Were you to be an executor you would be able to get copies of your father's bank statements from his bank.

There is not much you as a private citizen can do if you suspect fraud by an Attorney except report it to the authorities. Without any evidence I suspect it will be difficult to get very far.

You would find life much easier if you could restore a working relationship with your brother.

Horizon81

Thanks for that Yorkshireman99. Let's say the proceeds from the house sale went straight into my brothers bank account and he left my father's bank accounts empty. Father then dies, and the will says he left me 10% of his estate, but if there's nothing in his estate (as it's all in my brother's name) then where do I stand?

Yorkshireman99

Horizon81 wrote: »

Thanks for that Yorkshireman99. Let's say the proceeds from the house sale went straight into my brothers bank account and he left my father's bank accounts empty. Father then dies, and the will says he left me 10% of his estate, but if there's nothing in his estate (as it's all in my brother's name) then where do I stand?

That would be theft and would need to be reported to the police. Can you find out who the solicitor is that is dealing with the sale? It might be possible to tip them off. However, you need to have some actual proof rather than speculation.

Linton

Horizon81 wrote: »

Thanks for that Yorkshireman99. Let's say the proceeds from the house sale went straight into my brothers bank account and he left my father's bank accounts empty. Father then dies, and the will says he left me 10% of his estate, but if there's nothing in his estate (as it's all in my brother's name) then where do I stand?

As a beneficiary of say 10% of your fathers estate you should be given estate accounts that show the estate at time of death and where the money went. You can ask for things like your father's bank statements though the executor, if it isnt you, doesnt have to provide them.

If you dont get satisfaction you can consult a solicitor who could start off by writing a formal letter to the executor asking for the information and escalate as necessary. The risk is that if the dispute eventually goes to court the costs may be higher than any financial benefit.

Suggest you try googling "suspicion of fraud by executor". There is plenty of information, case studies etc from solicitors who would be eager to get your business.

Horizon81

Indeed, I'm thinking worse case scenario but forewarned is forearmed.

In terms of me discovering what is in the will (in regards to exactly what my father chose to leave to me) does the solicitor divulge this upon the death or is it up to the executor of the will?

Linton

Horizon81 wrote: »

Indeed, I'm thinking worse case scenario but forewarned is forearmed.

In terms of me discovering what is in the will (in regards to exactly what my father chose to leave to me) does the solicitor divulge this upon the death or is it up to the executor of the will?

The law doesnt require the solicitor and/or executor to divulge the information. In general people behave reasonably. It would seem reasonable for you to ask the executor or solicitor, and to be told, if you are a beneficiary and the terms and the amount you are likely to receive. If they dont want to tell you there isnt much you can do about it until probate, were there to be probate.

Primrose

Do you know who the executor of the Will is?
Secondly, your brother should be keeping your father!s money completely separate from his own finances as until your father,a death he is duty bound to be whiter than white in the way he runs your father,s affairs.

U fortunately until your fether dies your brother has no obligation to keep you in the financial picture unless your father,s attorney powers included instructions that this should,be done. Unless your brother is one of your father,s executors, on his death he has no further responsibility for your father,s financial affairs and all details of your father,s finance should be passed to the executor.

An individual can put a caveat on a will to prevent it going forward for probate if they have reason to believe that an individual was not of sound mind when the will was made but this would have to be done through a so,icitor and could end up being expensive. The will cannot then go forward for probate until the person putting the caveat on has removed it.

Mojisola

Horizon81 wrote: »

my brother put our father's house up for sale and the sale has now been agreed.

Linton wrote: »

If they dont want to tell you there isnt much you can do about it until probate, were there to be probate.

If there's a sum of money from a house sale, probate will probably be required.

Horizon81

Thanks for the assistance here Linton. It's difficult to get my head around never having gone through this before. As I understood it, upon death the will is executed (either by solicitor or named individual, which would be my brother rather than me). Doesn't this then go to probate? It's just your last sentence implies that there might not be probate? I thought probate was what happened after the executor was 'authorised'.
Just reading about 'caveats'...is this what you're talking about?