POA misuse

MrSlipper

Hi
I am executor of my late Mother's will. She died in April, following a fall at my sister's home, where she'd been staying for over 2 years. During her stay there, from time to time my sister charged Mum "rent", but whenever I or my siblings (there are 6 of us in total) mentioned setting up a more formal payment, she always changed the subject. Fast forward to May, when I'm trying to assess the value of Mum's estate.  Sister was a bit "vague" about account balances, but eventually she emailed a copy of a bank account statement. This showed several thousand pounds had been transferred out, starting just 2 days after Mum's death! Horrified, I contacted the bank, registered the death.  They passed me to their Fraud dept, who asked why I wasn't querying the "other" account. I knew nothing of a 2nd account. Well, in total £100k had been removed. They froze the account, to stop further withdrawals. I had words with my sister, telling her she had no authority to have done this...and she replied with an email saying "I've taken £125k and want another £25k" this is, apparently for Mum's "care". A day or so before this, I'd had an angry call from another sibling, saying she'd heard her sister was going to be charging £150k..the first any of us had heard of such an outrageous amount. An angry call from rogue sister, saying she hadn't been  able to get the £25k...too right, I'd frozen the account for that reason. I submitted a report to Action Fraud, who, after 3 months of chasing progress, told me it hadn't "reached their threshold to investigate"..hmm, maybe if I'd lied and said it was a million pounds? The bank raised fraud cases, but didn't proceed with them. However, the money seems to have been withdrawn under the LPA which I held jointly with my sister. She surely shouldn't have been allowed online access, given that we were both supposed to authorise such withdrawals...oh, and of course the LPA had ceased upon Mum's death anyway...she of course failed to mention that "minor matter" to the Bank, when they did try to block one payment and she managed to persuade them all was in order. So, there is a hole of £100k in the estate, sister refuses to return it, saying she's done nothing wrong, in fact she's demanded (via her solicitor) a further £35k...her demand mysteriously dropped from £150k to £135k when she couldn't reach that extra £25k. Am I missing something here? Sounds like theft/ fraud/ mis-representation to me. Do I pursue the bank for ignoring the joint LPA, and allowing her access? Do I have to pursue my sister for the money, I'd have thought the Police have enough evidence to go for her? Has anyone here ever experienced a similar situation? All the siblings agree there should be a payment for Mum's stay, but others had offered to have her, for far less money, and we had absolutely no prior warning of such a huge demand, which was only made a month after the money was taken, and after I'd discovered the theft. I'd appreciate any comments/ thoughts/ experiences. Many Thanks. 

naedanger

MrSlipper said:

Hi
I am executor of my late Mother's will. She died in April, following a fall at my sister's home, where she'd been staying for over 2 years. During her stay there, from time to time my sister charged Mum "rent", but whenever I or my siblings (there are 6 of us in total) mentioned setting up a more formal payment, she always changed the subject. Fast forward to May, when I'm trying to assess the value of Mum's estate.  Sister was a bit "vague" about account balances, but eventually she emailed a copy of a bank account statement. This showed several thousand pounds had been transferred out, starting just 2 days after Mum's death! Horrified, I contacted the bank, registered the death.  They passed me to their Fraud dept, who asked why I wasn't querying the "other" account. I knew nothing of a 2nd account. Well, in total £100k had been removed. They froze the account, to stop further withdrawals. I had words with my sister, telling her she had no authority to have done this...and she replied with an email saying "I've taken £125k and want another £25k" this is, apparently for Mum's "care". A day or so before this, I'd had an angry call from another sibling, saying she'd heard her sister was going to be charging £150k..the first any of us had heard of such an outrageous amount. An angry call from rogue sister, saying she hadn't been  able to get the £25k...too right, I'd frozen the account for that reason. I submitted a report to Action Fraud, who, after 3 months of chasing progress, told me it hadn't "reached their threshold to investigate"..hmm, maybe if I'd lied and said it was a million pounds? The bank raised fraud cases, but didn't proceed with them. However, the money seems to have been withdrawn under the LPA which I held jointly with my sister. She surely shouldn't have been allowed online access, given that we were both supposed to authorise such withdrawals...oh, and of course the LPA had ceased upon Mum's death anyway...she of course failed to mention that "minor matter" to the Bank, when they did try to block one payment and she managed to persuade them all was in order. So, there is a hole of £100k in the estate, sister refuses to return it, saying she's done nothing wrong, in fact she's demanded (via her solicitor) a further £35k...her demand mysteriously dropped from £150k to £135k when she couldn't reach that extra £25k. Am I missing something here? Sounds like theft/ fraud/ mis-representation to me. Do I pursue the bank for ignoring the joint LPA, and allowing her access? Do I have to pursue my sister for the money, I'd have thought the Police have enough evidence to go for her? Has anyone here ever experienced a similar situation? All the siblings agree there should be a payment for Mum's stay, but others had offered to have her, for far less money, and we had absolutely no prior warning of such a huge demand, which was only made a month after the money was taken, and after I'd discovered the theft. I'd appreciate any comments/ thoughts/ experiences. Many Thanks. 

From what you say it does sound a criminal matter as it seems she used the LPA fraudulently.

However the fact she was family means the police/action fraud may argue that it is a civil matter as she claims the money was "owed to her" for the care that she provided to her mother and therefore it is a civil dispute. And the burden of proof in a criminal case is very high so they may be right in saying the chances of conviction would be low. And a failed conviction would not help you. (And indeed a successful conviction might not help either - you might still need to take civil action.) However police involvement would probably still help as they might be able to convince her to repay the money in return for them dropping any criminal charges. I would certainly try speaking to people in the police/action fraud who are capable of making decisions. (Try not to be fobbed off by people whose job is fobbing people off.) 

Is it clear from the LPA's wording that both attorneys had to give joint instructions and not just one of them? (My parents both had PoAs which were ambiguously worded, and these docs had been drafted by solicitors.) Also what practice had been followed previously? If the wording is unambiguous and previous practice, as far as you were aware, had always been to get your instruction as well as your rogue sister's then I would have thought you have a good case against the bank. Certainly worth pursuing.

Also, does your rogue sister have a lot of (or at least sufficient) money to be able to repay both the amount she took and the cost of solicitors fees (her's and the estate's)?

If your rogue sister has sufficient funds, and getting police/action fraud to act proves difficult, I would speak to the rogue sister and explain that if she does not do whatever solution you require you will be consulting a solicitor. And make clear the consequences for her could ultimately be a lot worse than her agreeing to what you require. Then you need to actually follow through on the threat if necessary. (Though you may wish to wait until you hear what the bank say.)

xylophone

If the bank accounts with Lloyds required two  signatures for withdrawals, then online access to the accounts should not have been permitted.

Are you sure that the mandate was set up like this?

Regardless of that, a PoA ends on death - presumably the bank had not been advised of your mother's death?

Your sister did know of the death and wilfully took funds from accounts which she knew to have fallen into her mother's estate and has declared her intention not to return them.

So, there is a hole of £100k in the estate, sister refuses to return it, saying she's done nothing wrong, in fact she's demanded (via her solicitor) a further £35k..

You are the executor of your mother's estate.   Write back to her solicitor ( or ask your own solicitor to reply)  explaining that you have proof that acting as PoA,  his client removed funds from her mother's accounts in full knowledge that her mother had died and demanding that the funds  she abstracted be  paid back to the executor's account?

TBagpuss

What is the vlaue of the estate as a whole and what does the will say?
As attorney, your sister hd a duty to act in  your mother's best interests, and charging high levels of rent, especially if done without any discussion with you as the other attorney, is unlikely to fall into that situation.

Also, the fact that you and your other siblings tried to discuss it with her and she would not do so makes it very hard for her to argue that she was acting appropriately - if she was, why would she not have been open about it.
Had your mum lost capacity, or was the use of the PoA more for convenience? 

Either way, your sister should as a minimum repay everything she took from the accounts after your mother's death, as her authority under the PoA ended at that point. 
For anything prior to that date, it is reasonable to ask her to provide accounts setting out what she took and for what purpose, to justify any appropriate use of the PoA.
As the other attorney, were you getting bank statement and keeping an eye on things to ensure that you were both managing your mum's finances correctly? 

MrSlipper

Firstly, Thanks for reading- I do apologise, that single paragraph layout does not make for easy reading. 
naedanger- I  have the original LPA documents here, and it states clearly it is to be "jointly" operated. There is even a "word of warning" that this may delay transactions on the account , as both Attorneys have to be in agreement. There is no doubt some money is owed to her, but that does not excuse her nipping in and stealing £100k,"just for starters"  without even telling any of us what she was doing. In fact, it only came to light when I tried to establish the value of the Estate. 

I honestly have no idea if she has sufficient money to cover legal  bills. She is communicating through her solicitor, and refuses to accept guilt, nor to return the money to the estate. 

xylophone- I didn't actually mention which bank was involved. At a local bank branch, they were surprised to hear she had online access, given the LPA mandate. No, the bank weren't made aware of Mum's death till I provided the Death certificate towards the end of May. Mum latterly had dementia, so the LPA was in force as she was unable to act. I had never received  any bank statements, until I eventually managed to persuade her to share some with me. 

naedanger

In that case it certainly seems worth putting a formal complaint in to the bank, and take it from there. (You will need to consider what resolution you are seeking, since the scale of the estate's loss is not yet known.)

Try to get all the other beneficiaries to agree your proposed course of action. (It should make it easier to manage their expectations and you don't want some of them saying later, with the benefit of hindsight, that you should have taken some other action.)

elsien

How much is the estate worth and what would your sister’s share be? Wondering if there’s enough to deduct the amount she’s stolen from her final share? 

xylophone

At a local bank branch, they were surprised to hear she had online access, given the LPA mandate.

What is surprising is that online access was permitted for an account  which was mandated "two to sign".  Have you queried this with the bank?

That said, it could be argued that you were failing in your responsibilities as PoA in not maintaining regular oversight of your mother's affairs?

This does not excuse moving funds  from the accounts after your mother's death, much less appropriating them.

MrSlipper

naedanger said:

In that case it certainly seems worth putting a formal complaint in to the bank, and take it from there. (You will need to consider what resolution you are seeking, since the scale of the estate's loss is not yet known.)

Try to get all the other beneficiaries to agree your proposed course of action. (It should make it easier to manage their expectations and you don't want some of them saying later, with the benefit of hindsight, that you should have taken some other action.)

That is my next course of action. My other siblings are very much behind me on this. The whole scenario has caused immense anger and upset, especially from siblings who had also offered to look after Mum when she began to show signs of dementia, but the rogue sister insisted she'd do it, dismissing the others' offers. There are also doubts as to the level of care, given the fall Mum had, resulting in quite severe injuries. 

MrSlipper

xylophone said:

At a local bank branch, they were surprised to hear she had online access, given the LPA mandate.

What is surprising is that online access was permitted for an account  which was mandated "two to sign".  Have you queried this with the bank?

That said, it could be argued that you were failing in your responsibilities as PoA in not maintaining regular oversight of your mother's affairs?

This does not excuse moving funds  from the accounts after your mother's death, much less appropriating them.

Yes, I have asked them to investigate this. In particular when one withdrawal was queried. How did she manage to persuade the bank that there was no problem, so she could continue to take more money. Hopefully they will have a recording of that phone call. 
I trusted my sister implicitly (not any more) and none of us had reason to doubt her trustworthiness. 

naedanger

MrSlipper said:

naedanger said:

In that case it certainly seems worth putting a formal complaint in to the bank, and take it from there. (You will need to consider what resolution you are seeking, since the scale of the estate's loss is not yet known.)

Try to get all the other beneficiaries to agree your proposed course of action. (It should make it easier to manage their expectations and you don't want some of them saying later, with the benefit of hindsight, that you should have taken some other action.)

That is my next course of action. My other siblings are very much behind me on this. The whole scenario has caused immense anger and upset, especially from siblings who had also offered to look after Mum when she began to show signs of dementia, but the rogue sister insisted she'd do it, dismissing the others' offers. There are also doubts as to the level of care, given the fall Mum had, resulting in quite severe injuries. 

If it is any consolation to those siblings who are understandably upset, I would guess (and it is only a guess) that if the bank pays out (or is obliged to pay out if you need to go to FOS) then they will pursue the rogue sister.

(I am not sure there is anything she could say in defence of the money withdraw after your mother's death.)