Limitations of Enduring Power of Attorney

M

macfran

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A relative of mine has EPoA over his father who has dementia and is in long term nursing home care.
The family home is vacant and he now proposes to sell it with the consent of his 2 siblings.
The will states that the assets are to be divided equally between the 3 siblings
His private pension more than covers the cost of nursing home care.
One of the sons is asking could he have an advance payment of €90k of his inheritance?
What, if any, are the implications of advancing this money through inheritance or as a loan ?
 
Not sure if serious, but if so, your relative would want to consult a good solicitor before doing anything.

EPoA in no way gives you carte blanche do do as you wish with someone else's money/ property.
 
If the owner (father in NH) is never going to move back in, and the sons are not willing to/ can't maintain it or rent it out, then can the EPoA not sell it and lodge the money from sale in the father's bank ac? As I would imagine that an empty house could be a risky scenario, and possibly a drain on father's income should anything happen, eg leak or flood?
 
The Will only applies when the father is dead.
In terms of the EPA, it all depends on what powers the father granted to his "attorney". Did he say the kids could sell the house whilst he is still alive? Generally, the EPA gives power to the “attorney” to manage the financial affairs of the individual who has lost the capacity to manage their own affairs. So typically is might include the payment of nursing home charges out of the father’s income etc. It might or might not give the attorney the power to sell the family home. But it would be unusual to say that the family home could be sold and the assets divided amongst the potential beneficiaries. That’s normally dealt with in the Will, after the father has died.
The attorney should read the EPA to see what powers were granted. The attorney cannot act outside the powers granted in the EPA.
 
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And, even when acting within the powers granted in the EPA, the attorney must exercise those powers exclusively in the best interests of the grantor — i.e. your friend's Dad.

On no account should you friend exercise their powers so as to give someone any kind of advance on their inheritance while the Da is still alive. There is no way that this can be in the best interests of the Da. (And your friend can dismiss all arguments based on "what Da would want". Their job as attorney is not to do what Da would want, but what is in Da's best interests.)
 
Your friend most certainly can not dismiss all arguments based on "what dad would want". That is not what the law requires of an attorney and would be a significant breach of the attorney's duty.

The law requires you to

"give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable..."

There are specific requirements regarding gifts as well. Your friend needs to get detailed legal advice specific to his case
 
IANAL

In my experience, small gifts to family members, e.g. grandchild's wedding, first communion etc., are permissible if that is what the relative would have normally done.

But we are talking €50/100, not thousands.
 
MOB is correct. In my earlier post I confused the duties of attorneys and the duties of trustees. My (pretty bad) mistake. Sorry!

Still, there is a difference between "the past and present will and preferences" of the donor of the power, and what the donor would want. The duty is to give effect to what the donor did and does want, not what the donor would want.

How can you tell what the donor wants, given that the donor is (usually) not in a position to say? Often the question arises in relation to an issue that was present all along, and on which the donor had a known position. So if the donor gave a monthly donation by standing order to the Vincent de Paul, for instance, you can continue that. It's also important to look at the terms of the document that grants the power of attorney; they may contain expressions of the donor's wishes, either in general or in relation to particular matters.

In a case like this, where one child has requested an advance on their inheritance, can we know the donor wants? Well, if the child previously requested an advance on their inheritance while the donor was still competent and was refused, we do know; the donor didn't want to do this. But, more likely, there was no previous request; this is a wholly new development. Given that the donor of the power is now demented, it's probably unlikely that they can give a reliable expression of what they want done about this; if so, we don't know what the donor wants. And the law also requires the attorney to

act at all times in good faith and for the benefit of the relevant person
Click to expand...

So, if you don't and can't know what the donor does want, you don't speculate about what the donor would want and give effect to that; you act in the way that benefits the donor.
 
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