Power of Attorney issues
Discussion
I am not sure if this is the correct place to ask but here goes.
My gran passed away at the end of April 2020 and we are in the process of sorting out her will. There are three executors and one of these was her POA.
The executor who was the POA was asked to hand over the bank accounts by one of the other executors but refused to do so as he stated he didn't need to and only required to give the final totals.
Unfortunately for him, he missed the final bank statement which was collected by the executor who has had concerns and what he has seen is beyond shocking. It is clear he has been using his POA power to use the money for his own benefit.
The POA took £5,000 out of the account and put it into his own personal account. We have proof of this as well. This is just the tip of the iceberg.
The issue is that we have been trying to find a way of getting justice for what he has done but keep being told that he had the right to do what he wanted. They had the highest level of POA but the rest of the family were not even told that this was in place.
As we are in Scotland we contacted the Office of the Public Guardian but because the grantor is deceased they will not investigate.
Does anyone have any advice on what to do if anything can be done?
Thank you in advance.
My gran passed away at the end of April 2020 and we are in the process of sorting out her will. There are three executors and one of these was her POA.
The executor who was the POA was asked to hand over the bank accounts by one of the other executors but refused to do so as he stated he didn't need to and only required to give the final totals.
Unfortunately for him, he missed the final bank statement which was collected by the executor who has had concerns and what he has seen is beyond shocking. It is clear he has been using his POA power to use the money for his own benefit.
The POA took £5,000 out of the account and put it into his own personal account. We have proof of this as well. This is just the tip of the iceberg.
The issue is that we have been trying to find a way of getting justice for what he has done but keep being told that he had the right to do what he wanted. They had the highest level of POA but the rest of the family were not even told that this was in place.
As we are in Scotland we contacted the Office of the Public Guardian but because the grantor is deceased they will not investigate.
Does anyone have any advice on what to do if anything can be done?
Thank you in advance.
Simpo Two said:
I would suggest that's fraud and a matter for the police.
I think you are right. The POA stipulations are unbelievable as it states they can even pick what she wore.
Never seen such a POA document like this before.
But it's still fraud as you say.
Thank you for your input.
My understanding of the basic requirement of a POA is that you act in the interests of the grantor.
While acting on their behalf you may well be able to claim back any reasonable costs etc that you incur but once you get beyond that (which large lump sum withdrawals would rather imply) I would think there must be some criminal liability.
While acting on their behalf you may well be able to claim back any reasonable costs etc that you incur but once you get beyond that (which large lump sum withdrawals would rather imply) I would think there must be some criminal liability.
Steve H said:
My understanding of the basic requirement of a POA is that you act in the interests of the grantor.
While acting on their behalf you may well be able to claim back any reasonable costs etc that you incur but once you get beyond that (which large lump sum withdrawals would rather imply) I would think there must be some criminal liability.
Thank you mate for your input.While acting on their behalf you may well be able to claim back any reasonable costs etc that you incur but once you get beyond that (which large lump sum withdrawals would rather imply) I would think there must be some criminal liability.
We are going to try and get historic statements which will no doubt show the full extent of what has been going on.
While she was dying they removed thousands extra which we have proof of in the statements we have.
It really makes you think about how many others are being abused financially.
Thank you again.
millen said:
Sounds bad!
Your local Citizens Advice might be able to offer some guidance on next steps. Always free and independent.
Thank you mate. Phoned last week but they can't help, unfortunately.Your local Citizens Advice might be able to offer some guidance on next steps. Always free and independent.
Complete stitch-up but hopefully we can do something about it. Not easy when the POA is also down as an executor and the 2nd executor is as corrupt.
Thankfully the 3rd and final executor is fighting hard.
It's shocking what happens in a family when money is concerned.
ELUSIVEJIM said:
It really makes you think about how many others are being abused financially.
I doubt the police are likely to take any interest unless the numbers are very substantial but the estate (executors) will certainly have a right of action against the attorney to recover any mis-spent money. It will be necessary to "prove" that the money was mis-spent, which might be tricky. The burden of proof is much easier when suing for recovery than when trying to prosecute. This extract below is comment on a legal case in which an attorney was prosecuted by the police as a result of £75,000 going astray,
"In cases where financial abuse has taken place, it can be extremely difficult to pin down exactly which money was used dishonestly as many of the transfers are direct into the abuser’s bank account. Readers will recall cases where payments have been made directly out of the donor’s bank account, for example to utility companies the donor did not use or dating sites which the donor was not a member of, but the pattern is typically more akin to this case. It can be frustrating for all concerned when it appears obvious that a huge amount of money has been withdrawn but not spent on the donor. There are important lessons here for the prosecution in framing the cases but hopefully this will make the police and prosecutors more inclined to bring financial abusers to justice. This sort of behaviour is theft every bit as much as if the abuser had been a stranger who walked up to an elderly person in the street and demanded that they hand their money over, and the results can be equally devastating."
ELUSIVEJIM said:
The executor who was the POA was asked to hand over the bank accounts by one of the other executors but refused to do so as he stated he didn't need to and only required to give the final totals.
The bank account operated by the attorney is the deceased's bank account. As such the executors can simply ask the bank to provide any statements they want to see.If the attorney has been transferring money to their own account and spending from there it can be harder to pursue. But that's exactly what the case I mentioned above was all about. And it was in Scotland too.
As I understand it (and in England which I appreciate may be different), when the subject is alive, the attorney's duty is to look after the subject's finances and spend what may be required in the best interests of the subject. For example clothing, care home bills etc. They cannot spend it on themselves; it is not their money.
After the subject has died the attorney becomes Executor, and their duty is now to wind up the Estate and see that the money is accounted for and beneficiaries paid and to get Probate. They still cannot spend it on themselves; it is still not their money. They may be a beneficiary, but the only money they can take from the Estate is out of pocket expenses and should be accounted for. Any more than that is theft from the Estate.
If the deceased's bank accounts show that money has been taken by/transferred to the attorney then they will need to explain what they spent it on. Smoking gun IMHO. Why would they need to do this? They can pay the deceased's bills from the deceased's accounts.
I may have left some of that open to interpretation but hope it clarifies the matter a bit.
After the subject has died the attorney becomes Executor, and their duty is now to wind up the Estate and see that the money is accounted for and beneficiaries paid and to get Probate. They still cannot spend it on themselves; it is still not their money. They may be a beneficiary, but the only money they can take from the Estate is out of pocket expenses and should be accounted for. Any more than that is theft from the Estate.
If the deceased's bank accounts show that money has been taken by/transferred to the attorney then they will need to explain what they spent it on. Smoking gun IMHO. Why would they need to do this? They can pay the deceased's bills from the deceased's accounts.
I may have left some of that open to interpretation but hope it clarifies the matter a bit.
Simpo Two said:
After the subject has died the attorney becomes Executor, and their duty is now to wind up the Estate and see that the money is accounted for and beneficiaries paid and to get Probate. They still cannot spend it on themselves; it is still not their money. They may be a beneficiary, but the only money they can take from the Estate is out of pocket expenses and should be accounted for. Any more than that is theft from the Estate.
That's broadly correct. The only point to mention is that the attorney will not necessarily have been named as executor (or as one of the executors) although that is very often the case. The role does not automatically transfer.The theoretical solution to the PoA abuse problem is to appoint two separate people (not husband and wife) to act jointly. However, this is not necessarily practicable in these days of "bank cards and online banking". The ideal of doing everything by cheques which need two signatures is drifting into the past. It's also cumbersome.
rockin said:
That's broadly correct. The only point to mention is that the attorney will not necessarily have been named as executor (or as one of the executors) although that is very often the case. The role does not automatically transfer.
A sound point.I'm amazed that the law allows it to happen - so many people, when faced with a big pile of free money, will be tempted to nick a bit if nobody notices. If there's a gap in the accounts or money missing, they should be in for it.
For £5K, could the OP use Small Claims, or McSmall Claims as I guess it is Scotland? The defendant could hardly have a defence...
rockin said:
I doubt the police are likely to take any interest unless the numbers are very substantial but the estate (executors) will certainly have a right of action against the attorney to recover any mis-spent money. It will be necessary to "prove" that the money was mis-spent, which might be tricky. The burden of proof is much easier when suing for recovery than when trying to prosecute.
This extract below is comment on a legal case in which an attorney was prosecuted by the police as a result of £75,000 going astray,
"In cases where financial abuse has taken place, it can be extremely difficult to pin down exactly which money was used dishonestly as many of the transfers are direct into the abuser’s bank account. Readers will recall cases where payments have been made directly out of the donor’s bank account, for example to utility companies the donor did not use or dating sites which the donor was not a member of, but the pattern is typically more akin to this case. It can be frustrating for all concerned when it appears obvious that a huge amount of money has been withdrawn but not spent on the donor. There are important lessons here for the prosecution in framing the cases but hopefully this will make the police and prosecutors more inclined to bring financial abusers to justice. This sort of behaviour is theft every bit as much as if the abuser had been a stranger who walked up to an elderly person in the street and demanded that they hand their money over, and the results can be equally devastating."
Not knowing exactly how much has been taken but while she was in palliative care a total of around eight to ten thousand was withdrawn. This was in a 5 week period.This extract below is comment on a legal case in which an attorney was prosecuted by the police as a result of £75,000 going astray,
"In cases where financial abuse has taken place, it can be extremely difficult to pin down exactly which money was used dishonestly as many of the transfers are direct into the abuser’s bank account. Readers will recall cases where payments have been made directly out of the donor’s bank account, for example to utility companies the donor did not use or dating sites which the donor was not a member of, but the pattern is typically more akin to this case. It can be frustrating for all concerned when it appears obvious that a huge amount of money has been withdrawn but not spent on the donor. There are important lessons here for the prosecution in framing the cases but hopefully this will make the police and prosecutors more inclined to bring financial abusers to justice. This sort of behaviour is theft every bit as much as if the abuser had been a stranger who walked up to an elderly person in the street and demanded that they hand their money over, and the results can be equally devastating."
We know the POA backdated items to be processed while he was still POA even though it was purchased after she died.
The accounts we have are for only 3 months and in that time there is at least another few thousand being removed.
Clearly, we need to try and get hold of more accounts to see what else we can find.
Thanks for the details about the past information on the prosecution.
randlemarcus said:
OP said:
As we are in Scotland we contacted the Office of the Public Guardian but because the grantor is deceased they will not investigate.
What now?Is that a phone call, or have they actually put that in writing?
If they state nothing can be done I doubt it's worth pursuing.
Simpo Two said:
As I understand it (and in England which I appreciate may be different), when the subject is alive, the attorney's duty is to look after the subject's finances and spend what may be required in the best interests of the subject. For example clothing, care home bills etc. They cannot spend it on themselves; it is not their money.
After the subject has died the attorney becomes Executor, and their duty is now to wind up the Estate and see that the money is accounted for and beneficiaries paid and to get Probate. They still cannot spend it on themselves; it is still not their money. They may be a beneficiary, but the only money they can take from the Estate is out of pocket expenses and should be accounted for. Any more than that is theft from the Estate.
If the deceased's bank accounts show that money has been taken by/transferred to the attorney then they will need to explain what they spent it on. Smoking gun IMHO. Why would they need to do this? They can pay the deceased's bills from the deceased's accounts.
I may have left some of that open to interpretation but hope it clarifies the matter a bit.
This is exactly what we have been stating. There was no need for him to have his own account and to transfer money into that from the grantor. After the subject has died the attorney becomes Executor, and their duty is now to wind up the Estate and see that the money is accounted for and beneficiaries paid and to get Probate. They still cannot spend it on themselves; it is still not their money. They may be a beneficiary, but the only money they can take from the Estate is out of pocket expenses and should be accounted for. Any more than that is theft from the Estate.
If the deceased's bank accounts show that money has been taken by/transferred to the attorney then they will need to explain what they spent it on. Smoking gun IMHO. Why would they need to do this? They can pay the deceased's bills from the deceased's accounts.
I may have left some of that open to interpretation but hope it clarifies the matter a bit.
We clearly need to get some historic accounts via the bank as it will hopefully show exactly what has been going on. Going by the past few months it could be pretty horrific.
Thanks again for taking the time to reply.
Simpo Two said:
rockin said:
That's broadly correct. The only point to mention is that the attorney will not necessarily have been named as executor (or as one of the executors) although that is very often the case. The role does not automatically transfer.
A sound point.I'm amazed that the law allows it to happen - so many people, when faced with a big pile of free money, will be tempted to nick a bit if nobody notices. If there's a gap in the accounts or money missing, they should be in for it.
For £5K, could the OP use Small Claims, or McSmall Claims as I guess it is Scotland? The defendant could hardly have a defence...
We thought he was confused with the drugs but after his death, we have found out that the same POA as my grans was the POA, Executor and beneficiary of the brother's Will.
They have done exactly the same with my gran and it looks like they are going to get away with it again. If we had know the facts about the brother earlier we would have checked the POA of our gran.
Unbelievable.
I think this has been clarified above but just in case it's not clear........
My understanding (for England but I doubt Scotland is different) is that any form of POA automatically dies when the donor of the Power dies. As such the appointed attorney has no authority whatsoever to deal with the estate of the deceased - unless he/she is also named as an executor in the Will.
My understanding (for England but I doubt Scotland is different) is that any form of POA automatically dies when the donor of the Power dies. As such the appointed attorney has no authority whatsoever to deal with the estate of the deceased - unless he/she is also named as an executor in the Will.
Robertj21a said:
I think this has been clarified above but just in case it's not clear........
My understanding (for England but I doubt Scotland is different) is that any form of POA automatically dies when the donor of the Power dies. As such the appointed attorney has no authority whatsoever to deal with the estate of the deceased - unless he/she is also named as an executor in the Will.
Yes, this is completely correct but the POA is also one of the executors and is not disclosing any financial information apart from giving the totals to the solicitor after the grantor's death. He will not give up any information while he was the POA.My understanding (for England but I doubt Scotland is different) is that any form of POA automatically dies when the donor of the Power dies. As such the appointed attorney has no authority whatsoever to deal with the estate of the deceased - unless he/she is also named as an executor in the Will.
The only reason we know what he has been up to was the final statement of one of my gran's accounts was delivered to her home which was being checked by the other executor.
ELUSIVEJIM said:
...we have found out that the same POA as my grans was the POA, Executor and beneficiary of the brother's Will.
If he was sole beneficiary then I guess it all adds up to the same, plus or minus a bit of IHT perhaps.If not, collect all the evidence you can, then consider going legal. If the police won't prosecute, consider a 'class action' with any others that have lost out. You can get a free consultation with a legal bod to see if it has legs or not.
Obviously don't spend more money than you're likely to gain, but don't let the culprit escape unchallenged. Temper that with 'only fight battles you can win'.
It's unfortunate that whilst PH has many professionals in their fields giving free assistance to fellow PHers, I haven't noticed much from the professional legals.
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