VIC Power of Attorney Mischief - What to Do?

Discussion in 'Wills and Estate Planning Law Forum' started by Andrew1960, 15 March 2018.

  1. Andrew1960

    Andrew1960 Active Member

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    Hi guys,

    I need some clarity on breach of fiduciary responsibility .

    My uncle is my grandmother's power of attorney and executor of will. He's confirmed that he has transferred her money over to his trust fund for 'safe keeping'. She's been convinced that this is normal and that she shouldn't worry. He also said that despite her having around $1million that her nursing home fees will have her broke within in 3 years despite her having a non-asset tested pension and that she can only live on $30 a week for the rest of her life.

    She doesn't want to go to court hence I can't apply for VCAT (which is what the public guardians said I should do).

    So my questions are .

    Can action be taken against him once she passes?

    Can he be charged? (Apparently it's a 5 year prison sentence)

    Can the money that he's embezzled be claimed back?
     
  2. Rob Legat - SBPL

    LawTap Verified Lawyer

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    So what's he actually done wrong in your eyes? Putting money into trust does not necessarily mean anything. And nursing homes are expensive. I'm not sure if they're quite "$1 million in 3 years" expensive, but if there is a RAD (refundable accommodation deposit) involved they can be hundreds of thousands of dollars. The good part to them is that they are refundable.
     
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  3. Andrew1960

    Andrew1960 Active Member

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    Thanks for your reply Koliver, it's a relief to hear that . The bigger question on my mind is..Can a criminal case be raised against him once my grandmother has passed ? I don't want her dragged into this. Does his trust give him any sort of protection in court ?
     
  4. AdValorem

    AdValorem Well-Known Member

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    Hi Andrew

    Your uncle has already breached his fiduciary duties by transferring your grandmother's money 'over to his trust fund'. If the power of attorney is enduring and your grandmother loses capacity you can then apply to VCAT to have the power revoked and for your uncle to compensate your grandmother for loss caused by his breaches.

    Kind regards
    Val
     
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  5. Andrew1960

    Andrew1960 Active Member

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    Thanks for the response Val,

    If my grandmother has passed before she gets the money back, whats the process for her estate to sue my uncle for the money back (fyi he's executor of the will) .
    Do I need my own lawyer to start this?
    Is there a form to fill out?
    Can he stop this from happening if he's executor of the estate?

    Regards
    Andrew
     
  6. Mary W

    Mary W Well-Known Member

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    If you are really concerned you can go to Vcat and ask for the Power of Attorney to be replaced. Is she already in a nursing home?
    Once your grandmother dies he may transfer it back to an estate account but if not it will be hard to get it back without Court action. What if dies first? Your uncle clearly had no right to do what he did.
     
  7. AdValorem

    AdValorem Well-Known Member

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    Hi Andrew

    Since your uncle appears to have breached his fiduciary duties you should seek specific advice from a lawyer practising in this area without delay.

    The costs for legal advice and rectifying the issue now will be small compared to the costs for starting a court case later.

    Kind regards
    Val
     
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  8. Andrew1960

    Andrew1960 Active Member

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    Hi Mary,
    Yes my grandmother is in a nursing home . I suspect he's taken the money so that he can distibute the money in his own way outside of the legal requirements of the will .

    It's a tough situation. On the one hand I don't want my grandmother to see her son go to jail . On the other hand if I wait, I might lose my share of the inheritance.
     
  9. Andrew1960

    Andrew1960 Active Member

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    Thanks Val,

    I think that may be wise . Everyone I speak to thinks it's a very serious offence.
     
  10. Andrew1960

    Andrew1960 Active Member

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    Hi,

    Here's an update of how things are going.

    A VCAT application has been sent and a date made for the hearing. Upon receiving his copy of the application my uncle called my grandmother to pass on a message to me. "have him withdraw the VCAT application or I'll take him to the supreme Court and bankrupt him" . This seemed absurd and a guess and he's scared and clutching at straws as he thought no one would challenge what he has been doing.

    He's apparently put my grandmothers money into his account .

    Gifted $5000 each to his children. Against my grandmothers wishes

    Won't tell my grandmother specifics about her finances .

    Has her believing she's broke .

    I feel like there's no way I can lose this . But I'm trying to cover all bases. Is there anyway my uncle could win ? How would a lawyer defend his side of the argument. My grandmother has to get a medical signed by a doctor about her decision making capacity . Will this influence the outcome one way or another ?

    Thanks
     
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