Power of Attorney

[MrAlex]

hi please can someone help me. I obtained LPA for my Father to have in place should it be required, although it was registered, I didn’t present it to the bank or building society as Dad had full mental capacity but needed physical care and was in a home, he wasn’t able to go to the bank to withdraw money by himself, so I used money from my account for his spends and then replaced it with money from his bank account. There was no need to touch money in his building society account. I also had third party access on his current account so was able to access his money. He has recently passed away and the other beneficiary (I am one too) wants to see all receipts for withdrawals. I’m not talking a lot of money, £50 here and there which I have no proof of what the money was spent on, sometimes I would give Dad the cash when we went out, other times I would buy things like pyjamas, clothes for him etc. as I didn’t think I needed to keep receipts as in my mind I wasn’t using LPA as I hadn’t notified the bank of its existence. Does anyone know what my legal obligation is, do I have to account for every penny because the LPA was registered? I am also sole executor of his will. Any help would be appreciated.

[Peridot]

Hi MrAlex,

You mention your father had capacity to make his own decisions so if you had the arrangement with him that you would pay for things and he would refund you, then there has been nothing untoward happening. Were there any larger sums that were transferred that could be questioned? The estate is dealt with from the date of death so whatever happens prior to that time will not factor as far as estate accounts and eventual distributions are concerned.

Having said that if there was a situation where thousands had been transferred and questions were being raised then it would be wise to explore the issue. However it is the executor who has the authority to pursue any potential claim. The Office of the Public Guardian would not now be involved as father has passed away.

The other beneficiary is a residuary beneficiary I assume? What exactly have they raised as an issue? Can you evidence through your father's bank statements and your bank statements the credits and debits to show they tally more or less? Following your father's death you did not transfer any funds to your account did you? If larger sums are involved that maybe your father agreed you could have rather than a repayment then you need to let the other person know and potentially any gift of money made in the last 7 years before he died, should be reflected in the inheritance tax forms.

What does the other beneficiary actually want from raising the issue? If we are looking at significant sums then it may be worth considering reducing your own legacy by that amount?

If these are small amounts in repayment it should be easy enough to tally them. If the LPA, although registered had never been used as father had mental capacity to make his own decisions then this needs to be made clear to the other beneficiary as during his life time it is up to him what he does with his own assets.

[MrAlex]

Hi thank you. The highest amount whilst I had LPA was for £245 and that was to buy my Father’s glasses. I paid the optician direct and withdrew money from Dad’s account to mine, for that occasion I could probably get a receipt but the times I would give Dad cash to buy things when we went out, then I would take the money from his account so I can’t provide evidence for that and at this point I can’t remember exactly how he spent his money during each visit. I was his main regular visitor and sometimes, not always he would give me some money towards petrol ( return trip 4 hours). Although power of attorney was in place, the bank weren’t aware so I really want to know if I need to provide proof of money spent on that basis or is the fact I registered the power of attorney mean that I have to provide receipts from date of registration? I am not talking high amounts, approx £1100 total over a year, including glasses. You may have gathered, a long standing feud in the family and a sibling left out of the will. There were no withdrawals after death. The beneficiary as made it clear that I have to account for Every penny for from the time i had third party access (before I had LPA), any guidance would be welcome.

[Peridot]

Hi again,

Did dad have capacity to make his own decisions? That is the main question here. It is up to him what he did with his money and when/who he involved the whole time he had capacity. I assume you didn't arrange investments or mortgages etc in his name and wouldn't have been able to without registering the LPA with the particular organisation you were dealing with, in any event. You were the appointed attorney. The LPA was registered so it would be good practice and is in fact suggested that attorney's keep records and receipts, but it is not a legal requirement. It would of course maybe head off the sort of situation you find yourself in now, but I wonder whether the individual would find something else to pick on even if you had kept the most accurate records possible?

Although it would have assisted you in this situation I don't think it is reasonable in these circumstances to be demanding every receipt for each cup of tea or pair of pyjamas purchased at your father's request and when talking about such a relatively small amount in total. Particularly when your father apparently had capacity to do whatever he wanted with his affairs he just needed some physical assistance to do so. What has raised his suspicion or is it a sour grapes situation? You were doing what your father asked of you.

Provided your father had capacity irrelevant of a registered LPA he is perfectly at liberty to deal with his financial affairs as he pleases. Has the other sibling obtained any legal advice on this do you know? I suspect if he did unless there are larger sums involved, then it would be unlikely a lawyer would recommend doing anything. As the person isn't a beneficiary they have no entitlement to see all the estate accounts in any event and definitely not pre-death accounts. Although for the sake of calming the waters maybe it would be worth considering letting them see the bank statements, highlighting the payments to you and providing an indication of what it was for if you can recall (such as the glasses). Could you tally it if you checked your bank statements and effectively cross referenced the dates? It does seem a ridiculous time consuming exercise for the sum you have received though.

As an aside if you were worried they may try and bring a claim against the estate for being left out of the Will, unless they are dependant ie receiving financial support from father they would have little success and would be advised of this by a lawyer. If they contest that your father was unduly influenced when the will was prepared they would have to provide proof of this. It is not an easy claim to prove.

I appreciate you want to try and keep the peace as far as you can but if the demands being made are unreasonable there comes a time you have to just get on with the administration of the estate. Not knowing the size of the estate it is difficult to make any suggestions but it may be worth considering 'settling' the issues with a slight variation to the Will to include them again. Of course the other residuary beneficiaries would have to agree to this but it may be worth thinking about if this person becomes too difficult and prevents the executors from dealing with the estate. Mediation is always recommended although I see little reason why you should it would purely be to try and smooth things as a family.

Wills bring out the worst in families unfortunately and it is never easy for anyone involved.