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QLD Enduring Power of Attorney and Protection of Mother's Assets and Estate

Discussion in 'Wills and Estate Planning Law Forum' started by Scout, 20 October 2014.

  1. Scout

    Scout Member

    6 July 2014
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    I would like to ask if there is anything I can do to check that my brother is doing the right thing with my mother’s finances and not transferring money out of her bank account to his own family?

    Is there anything I can do now to prevent problems and what will I be able to do to see what my brother has done with our Mum's finances after she passes?

    Our mother appointed my brother as her Enduring Power of Attorney immediately following the death of our father over two years ago. She has no idea about the value of her own finances and refuses to ask my brother for any more information in fear of "making them angry." At my request she did ask him about the possibility of making me or my husband a second EPOA but he just said no he "won't have that." She believes she has to obey him.

    My mother is 84 years old, legally blind and in poor health. She is living in a nursing home now in Queensland after first having lived with my brother and his wife as her carer, for about a year after her house was sold. My brother told her the nursing home "took nearly all of her money and he had to argue to keep extra for her necessities." But from what my father had told us, in addition to owning their house he also had quite a large bank account (with too much in it to get the pension), some valuable shares, and quite a lot of cash at home. I believe my brother has since used that cash to build himself a garage and have an overseas holiday. I understand our father gave the cash to him during a visit soon before his death. My family and I had visited about two months earlier.

    My father had purposely spoken to my husband and me together, to tell us to beware of my brother trying to take everything he can after he dies. My father said he had his and my mother’s Wills written by the solicitor so that the house and contents would have to be sold and the proceeds shared equally between both of us, to avoid arguments. The house and contents have now been sold, except for some contents (lounge suite, sideboard etc.) which I believe my brother's family are now using as their own. During that conversation with my husband and me, my father also told us about the cash he had at his house.

    When my father had their Wills written he had expected my mother to predecease him, and that has not been the case. My mother has assured me she has not knowingly changed her Will from what Dad had arranged. I believe the Solicitor has been named as the executor.

    I will be very grateful for any help you are able to give. Thank you very much.
  2. Sophea

    Sophea Well-Known Member

    16 April 2014
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    Dear Scout,

    This sounds like a difficult situation and one which you really should get sorted out asap, (1) because its easier to manage while your mother is still alive and has capacity, and (2) because your suspicions are obviously affecting your relationship with your brother.

    First step: Although you have already done this, speak with your mother. The easiest way to find out what is happening is for her to request from your brother full accounts and records relating to her financial affairs for her review. She could even do it under the pretence that she wants to make sure all her affairs are in order and review her assets or even that her solicitor is requesting that she do it. If she is to scared to do this for fear of making your brother angry - he is obviously exerting undue influence on her which you should speak with her solicitor about. Another option is for her to make you a joint EPOA which as you said she is hesitant to do, that way you can directly request accounts and you will have rights to access all this information yourself and all decisions regarding her funds will have to be made jointly by you and your brother.

    Second Step: If she won't do anything, out of fear of your brother, then you need to obtain advice from her solicitor regarding her options having regard to all of the circumstances and the obvious duress or undue influence that he is exerting on her.

    Here is a bit of information about what can be done under the Power of Attorney Act (Qld), just to give you an idea of what you can ask the solicitor about.

    Responsibilities of Attorneys

    Section 85 of the Power of Attorney's Act (Qld) requires that an attorney keep and preserve accurate records and accounts of all dealings and transactions made. The Public Guardian has to power to direct that these accounts be audited. I actually don't know whether its possible but you you could perhaps contact the Public Guardian and ask them whether they could perform a random audit on him??

    Section 86 of the Act further provides that an attorney must keep the attorney's property separate from the principal's property, unless it is jointly held property. This section imposes a penalty of 300 penalty units (equivalent to a fine of $33,000) for contraventions of this rule.

    Åction to prevent misconduct
    An interested person which would include a friend or relative of the principal (would include you) can apply to the court to remove an attorney if they are not using their power appropriately. If the principal has lost capacity then the court will appoint an administrator to manage their finances instead.

    Section 122 of the Power of Attorney Act also states that the court can make orders requiring the attorney to file with the court a summary of receipts and expenditure for a specified period or on a periodic basis etc, or that the accounts be audited by an auditor appointed by the court. The court may make these orders of its own initiative or upon the application of an interested person. So you could apply for such orders.

    This is kind of a worst case scenario measure, i.e. if you were able to obtain evidence that your brother is actually misappropriating your mother's funds and property. It would be somewhat expensive in terms of legal costs and would definitely affect your relationship with your brother.

    Hope that helps
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  3. Scout

    Scout Member

    6 July 2014
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    Dear Sophea,

    Thank you very much for your informative reply. I also appreciate your empathy and consideration of how this has been affecting my relationship with my brother as I am usually the only one blamed for causing trouble.

    I apologise for taking so long to thank you for your work. Most of the time I just don't want to think about it. When I decide to do something I think I will visit her lawyer and take a copy of this thread to help with the explanation.

    Thank you once again I appreciate your assistance.

    Kind regards

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