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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10253
Experience:  Barrister 17 years experience
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My brother and I have Enduring Power of Attorney and are sole

Resolved Question:

My brother and I have Enduring Power of Attorney and are sole beneficiaries of our fathers estate, he is aged 90 and has senile dementia. He went into full time residential care 2 years ago, the care fees take all of his income and he has no savings. For these last 2 years we have been renting out his house to help towards his enormous care bills. At first the rent nearly covered the bills but now goes nowhere near and my brother and I have been subsidising him heavily (equally) until now, but the burden of this means we are at a point where we are forced to sell his house. The sale is about to go through, but we have vastly different views on what should be done with the proceeds of the house sale.
My first question is - once the sale goes through and all associated costs are paid, and my brother and I agree to each pay half of Dad's care bills for life based on trust, as we do at the moment - can we legally arrange to split the house sale balance equally into 2 separate accounts in Dad's name, and each manage one account exclusively as we each see fit? My brother prefers to put the money in the bank and suffer the depreciation. I want to buy a small flat in Dad's name and rent it out to help towards the fee costs (I would make up the difference personally) and to preserve the capital.
I assume that in the event of our father's death, the remaining capital in both accounts, together with the flat, will be regarded as the value of our father's estate, which would under normal circumstances be divided equally between the beneficiaries (i.e. my brother and myself or surviving families).
Is it possible to draw up a legal document by joint agreement, which separates the value in the two accounts and assigns the value in the flat to myself, rather than the whole being split up equally as per our father's Will?
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.
1. I regret to say that you cannot in advance decide to alter the rules governing succession if your father dies intestate. AFter your father has died, you both can then enter into an agreement between yourselves as to what happens as regards ***** ***** of his monies. However, as none of these monies belong to either yourself or your brother - they are your father's until he dies - you cannot decide in law what will happen to them after the death of your father. Your Power of Attorney only gives you power to make arrangements in relation to your father's affairs. It does not give either of you ownership over half the money he owns. So, as you don't own something, you cannot decide what will happen to it after the death of your father. You can only agree what will happen to the monies when you own it. That is, after your father dies. Then, if you want to alter the rule of equal division among the two beneficiaries, you can do so. However, even then, there is no incentive for whoever's half share of the monies is smaller to agree to a smaller share of the estate of your father. So, the bot***** *****ne is that any agreement you may make dividing the monies into two accounts can be revisited by either of you upon your father's death.
Buachaill, Barrister
Category: Law
Satisfied Customers: 10253
Experience: Barrister 17 years experience
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