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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10539
Experience:  Barrister 17 years experience
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My sister and I are Power Of Attorney for my father who is

Resolved Question:

My sister and I are Power Of Attorney for my father who is in long term nursing care. He does not have problems with Alzheimers or Dementia, but needs 24 hours assistence because of mobility issues. My sister and I are jointly and severally POA for my father. We have been investigating various methods to ensure that my father wealth lasts long enough to cover his care needs until the end of his life. My sister has come up with the idea of paying off her own mortgage with his money and and then making a contribtion of 600 GBP each month towards his nursing care costs. this figure is approximately 25% of the monthly costs. He will still have enough money to pay the other 75% for some years to come. My sister husband who is a solicitor wishes to write a deed of trust stating that the portion (50%) of the property which my father will finance will revert to his estate upon his death, and therefore will not consist in a dismination of his estate. However I have various misgivings of this which are
1. As joint POA I do not wish to be a parrty to this plan and am not signing it. While I do not believe that it is carried out with greed or larceny as a motive, I believe it will be difficult to prove in front of a judge that such a plan is in my fatherś best interest. It is somewhat dificult to judge the motivation of my sister and her husband since the 50% of their house that it entails will revert to my father's estate on his death, and all my sister an her husband will have gained is an outlay of 600 GBP per month with no return. I find it hard to believe that a rational person would propose this and therefore have to ask mmyself if anything is untoward is going on
2. As potential 50% inheritor of my fathers estate I am somehwat worried that this estate will be diminsished by the value of the portion that is to be taken from my father's assets to pay off my sisterś mortgage (120000 GBP) . As joint residuary(¿?) inheritor of my father 50/50 with my sister this reduces my interest in his will by 60000 GBP. When I said that I wished to put their proposal past a solicitor (including the deed of trust in which my father's interest in my sister's house is outlined) they seemed somewhat reluctant for me to to this. I therefore have two questions:
Q1 - is it acceptable for POA to use the assets of the person for whom they have POA to pay off their mortgae in this way?
Q2 - does a deed of trust have sufficient weight to allow the part of my sister's property that will be held in trust to be reincorporarated into my father's estate on death.

I look forward to hearing your answer. I imagine that this is some kind of lead service and that I may be asked to commit to futher consultations with you.

thanks for your attention
Submitted: 3 years ago.
Category: Law
Expert:  Buachaill replied 3 years ago.

Buachaill :

1. To answer your first question - there is a rule of law that the donee of a Power of Attorney, such as your sister, should not profit from their position as holder of the Power. Any transaction under which the donee of a Power of Attorney such as your sister benefits from her Power can be set aside in legal action by the donor of the power or his executor on his death, or by any other interested person such as yourself.

Buachaill :

2. Accordingly, your sister should not be using her Power of Attorney to pay off her mortgage irrespective of whatever financial recompense she might give your father. This is an unlawful use of a Power of Attorney.

Buachaill :

3. Whilst a Deed of Trust is effective to pass any interest in your sister's house back to your father's estate upon death, the whole transaction is suspect and should not happen. The donee of a a power of Attorney such as your sister should not be meddling in your father's financial affairs to benefit herself.

Customer:

I am very satisfied with this answer which confirms my opinion. Very clear and concise

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