POA & will drafted but never signed

danski39

Hi folks

Im looking for guidance / advice from anyone with experience of a situation that is completely new territory to me and has left me flummoxed.

Earlier this year my mum agreed to a meeting facilitated by my half sister with a free will service organised by Macmillan, but contracted out to a legal services company (not solicitors) called Accord. This meeting took place on 23 Feb with an Accord freelance ‘managing consultant’. In addition to the drafting of a will, at this meeting the topic of a POA for both welfare and finance was also put forward and it seems it was agreed that this should be added to the order. I am not sure how long this meeting was or how much detail was explained to my mum, but I do know - based on feedback from one of her carers - that she was unclear about what POA entailed as she asked her to explain it. My mum was not financially minded, but she was intelligent.

As a result of this meeting, on the same day, Accord issued an invoice for over £800 for the drafting of the POA. It appears that my mum paid this invoice by cheque. It appears that this POA would have given my half sister (who is not related to my mum) and a second person, control over the management of her finances etc. However, she never signed or submitted it, I believe because on reflection she had second thoughts. Based on a conversation with one of her carers with whom she was close, she was uncertain what a POA was, and being a bright person, this suggests to me it wasn’t clearly explained. I cannot find any trace of the draft POA, my half sister claims she doesn’t have it, and Accord won’t provide a copy for what seems the absurd reason that I wasn’t named as an executor on a document that was never signed, even though i am her next of kin and only child. This means I am stymied in trying to find out what unfolded.

My mother, I should clarify, passed away in July, and it was only after she did that I became aware that this POA was drafted and paid for. It is not clear, nor have Accord been able or willing to tell me, when it was sent to her for approval, but I would assume it was reasonably soon after the consultation meeting.

This all prompts several initial questions:

1) Is it good practice for Macmillan to steer people towards a company who are not solicitors for the drafting of a will / POA?

2) At a meeting that was organised on the basis that it was a free will drafting service being offered, and a POA was then added at a cost of £849, and then billed o. the same day BEFORE any documents had been drafted and reviewed, am I right to sense that there might have been an element of pressured ‘up-selling’?

3) Should she have been charged before the event for a document that she decided not to sign and submit? 

As I said I do not know how quickly she received the draft POA as the only ‘paper trail’ I have found is the invoice from Accord.

I do however know that the draft will, also initiated at that meeting on 23 Feb, only came back for approval in early July, just over a week before my mum passed away. ie over four months later. I find it odd firstly that given the knowledge that a client is 93 and ill there would not be more urgency on the part of Accord in preparing what was in effect a simple document (albeit one which I believe did not properly reflect her wishes). Again the circumstances around the will give me cause for considerable concern. Firstly, my half sister arranged for the will to be read to my mum - by her carer - at a point when she could barely hear, or see, and was under the influence of morphine type pain relief, and was very very poorly (under palliative care). This would have been a futile exercise for reasons obvious to anyone, including my half sister. Not surprisingly my mum didn’t/ couldn’t sign it. Had she done so I am sure it would have been without being aware of what she was signing.  To add to this my half sister had apparently, back in February taken on the role of finding a second trustee herself, and approached the partner of my cousin, who agreed, but says the first time she actually knew anything about the contents of the document she was being asked to be an executor for was the day in July when she was present at my mum’s when the will was read out to her. This all seems very shabby to me.

To make matters worse, even though POA was never formalised or agreed to, my half sister had supposedly stepped in earlier this year to informally assist my mum with basic financial admin assistance (opening mail, making sure bills paid etc most were direct debit so not a big deal)…  and yet her care payments from April onwards were not paid, leading to arrears building up of over 5K to the council by the time of her passing. Reminders were being sent of course. And among her papers I found a direct debit form to the council which had been signed by my mum, but not then sent.  Which makes me question in itself what role my half sister was actually performing…


I am sorry about the somewhat rambly nature of this shout-out, I am slightly running on empty at the moment - but I would really appreciate insights and guidance from anyone with experience or knowledge of similar situations.

Many rhanks

D-ski

RAS

As they were not signed, neither have any legal status,

The POA is obviously irrelevant now. The law of intestacy apply to you mum's estate.

Any other full siblings, or half siblings on your mum's side?

Flugelhorn

the POA was clearly not registered and hence didn't have any legal status, lots of people get a relative to informally help out with bills and finances while these things are being sorted out.

again unless the will was signed and witnessed the estate is now intestate, any debts eg the care bills need to come from the estate. not unusual for such bills to be hanging around and not unusual for executors (like cousin's partner) not to know what is in the will

I too also concerned about these organisations  who draft PoA and charge ++ for it - it can be done by friends and family - a friend of mine's relative paid for it all and then discovered of course that they had to pay again to have it registered, they assumed that was included. 

Keep_pedalling

Regardless of the rights and wrongs of the failure to actually register the LPAs the fees were for drafting them not following through and making sure your mother, her appointed attorneys and a certificate provider signed them off and made sure they were registered.

Your half sister may not have done a very good job with regard to making sure here care fees were paid but it seems unfair to point the finger when you don’t seem to have stepped up to the plate to help yourself. The long delay between the initial meeting, where you mother would have told the will writer what she wanted in her will and the draft actually being produced was indeed very shabby it should only have taken a couple of days especially in the circumstances.

Are you now acting as the administrator of her estate? If you are and her estate is solvent then after funeral costs you need to prioritise the payment of any debts owed to creditors before distributing what remains to the beneficiaries. Although the will is invalid, if you are the sole beneficiary under intestacy rules you could always follow your mother’s wishes and distribute the estate as per the draft will. If this would leave you with a potential IHT liability on the gifts you would effectively be making you can avoid this through the use of a deed of variation. 

One of the take aways from this is never leave wills and LPAs until you very old age, if you don’t have yours in place get them sorted ASAP, use a solicitor for the will and do your own LPAs.

Savvy_Sue

danski39 said:

1) Is it good practice for Macmillan to steer people towards a company who are not solicitors for the drafting of a will / POA?

If I say 'perhaps not, but it's not just MacMillan who do this' ... 

There are lots of 'free will' offers around (and I'm not talking about Free Will month). My union offers this, for example, but if I took them up on this offer I believe the referral would be passed to a firm of Will Writers rather than a 'proper' solicitor. 

And - perhaps to muddy the waters in my response - I would say it is 'good practice' for anyone writing to will to ask whether the testator has POA set up, and to strongly encourage this if not. And THAT is unlikely ever to be covered by a 'free' will offer. 

tooldle

Just dropping in to add, it can be a very good idea to use a solicitor to set up an LPA where, capacity of the donor may later be called into question.