Can POA/Executor give a legacy before death?

growler834

I have POA for my mum & I'm also the sole executor of her will. She is currently in the end stages of dementia and resides in a nursing home.

In her will she bequeathed her shares (worth approx £1000) to her grandson who lives in Australia. He is currently in financial need and I wondered if I could cash in the shares & give him the money now?

Thank you for any advice anyone can give.

Keep_pedalling

No, as POA you do not have the authority to make such gifts.

Are you the sole residual beneficiary of the will?

growler834

No, the estate is to be divided four ways between myself, my husband and her two grandchildren.

Sea_Shell

In short, no you can't. There are 2 issues here...

1. As POA you have to act in the donor's best interests. Giving their assets away is not.

2. The wording of the will has no bearing, until they have passed away.

Keep_pedalling

Keep_pedalling wrote: »

No, as POA you do not have the authority to make such gifts.

Are you the sole residual beneficiary of the will?

The only real option would be to loan him your own money, to be paid back when he inherits. The risk with that though is that those shares may have have dropped in value by then.

SevenOfNine

It can't be taken for granted that he will outlive her (sorry, distressing thought but can't be ruled out).

Not sure where you'd stand if her care is self funding or LA, either way you'd have prematurely disposed of an asset.

We're currently dealing with a family member who had PoA over a vulnerable parent, failing completely to understand the difference between that & a 'joint bank a/c'! Sea Shell's point 1 sums it up succinctly (though in our case 'spending it' as opposed to giving it away).

It's a really kind thought, but unwise.

Yorkshireman99

SevenOfNine wrote: »

It can't be taken for granted that he will outlive her (sorry, distressing thought but can't be ruled out).

Not sure where you'd stand if her care is self funding or LA, either way you'd have prematurely disposed of an asset.

We're currently dealing with a family member who had PoA over a vulnerable parent, failing completely to understand the difference between that & a 'joint bank a/c'! Sea Shell's point 1 sums it up succinctly (though in our case 'spending it' as opposed to giving it away).

It's a really kind thought, but unwise.

More than unwise. Effectively theft. The OP needs to read up on the rules.

Margot123

Yorkshireman99 wrote: »

More than unwise. Effectively theft. The OP needs to read up on the rules.

There are full guidance notes available before and after applying for Power of Attorney. They are very clear as to an attorney's role, responsibilities, and liabilities.

OP, you must re-read them to get a better understanding.

growler834

Thank you everyone for your input. I am cognisant of the guidance notes as I have been her POA & dealt with her finances for 6 years now. However, my question isn't fully covered in the guidance notes & I was hoping my position could be clarified, particularly as they state :

'You can take the contents of a person's will into account when making gifting decisions, as it is an indication of the person's wishes. In his judgment 'Re Joan Treadwell deceased [2013]', Senior Judge Lush commented at paragraph 88:
In the context of someone's property and financial affairs, I can think of no written statement that is more relevant or more important than a will'.

If I gave him the money from my own savings, would it be legal for him to sign an agreement that it would be paid back out of the legacy left to him?

troubleinparadise

A legacy from a will only exists if it still forms part of the deceased’s assets after death.

So it is up to you whether you can take the risk of loaning your son that money from your own savings, relying upon him receiving a bequest from his grandmother after her death to pay you back. If there is any chance that her assets are all needed to fund her residential care, and as POA you will know what assets she has, then that risk might not be worth taking.

You can make that personal arrangement between the two of you, and hope that he will be honourable and repay the loan to you.

That guidance referenced can be used when there might be a decision needed to dispose of particular items, or a house, or a shareholding to add to a donor’s liquid assets to meet debts during their lifetime. But it is not intended to be used as carte blanch to give away a donor’s assets whilst they are alive.

Sea_Shell

growler834 wrote: »

Thank you everyone for your input. I am cognisant of the guidance notes as I have been her POA & dealt with her finances for 6 years now. However, my question isn't fully covered in the guidance notes & I was hoping my position could be clarified, particularly as they state :

'You can take the contents of a person's will into account when making gifting decisions, as it is an indication of the person's wishes. In his judgment 'Re Joan Treadwell deceased [2013]', Senior Judge Lush commented at paragraph 88:
In the context of someone's property and financial affairs, I can think of no written statement that is more relevant or more important than a will'.

If I gave him the money from my own savings, would it be legal for him to sign an agreement that it would be paid back out of the legacy left to him?

I stand corrected on point 2 then.