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Buachaill, Barrister
Category: Law
Satisfied Customers: 10976
Experience:  Barrister 17 years experience
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my mother was declared mentally incapable 8/1/14. My brother

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my mother was declared mentally incapable 8/1/14. My brother has general power of attorney and has not registered it with the Office of Public Guardian yet. He moved a lump sum from my mother's savings 2 months ago into her current account with the intention of giving it to each of us before mum is assessed for a care home. I refused my share. Apart from catching him out with this, isn't it illegal for him to continue using the General P of A without registering it? Also can I request the bank etc to freeze the assets in order to protect my mother?

Thank you

Buachaill :

1. Firstly, a general power of attorney does not have to be registered to be effective. It is only a Lasting or Enduring Power of Attorney that must be registered with the court in order to be effective. Secondly, in so far as your brother sought himself, to profit from the use of the Power of Attorney, this is unlawful as it gives rise to a direct conflict of interest between his duty as donee of the power and his own personal interest. Accordingly, this taking of money by him, not by anyone else, can be set aside upon the application of an executor or by the Court of Protection should your mother be subject to a wardship or deputyship or a subsequent Enduring or Lasting Power of Attorney. Since your mother was declared mentally incapable on 8/January/2014 the General Power of Attorney lapses and is no longer effective. To act in your mother's interests after this date, an Enduring or Lasting Power of Attorney would have to be in place in relation to your mother. Finally, you should merely put the bank on notice that your mother has been declared mentally in capable as this means that your brother can no longer use his general Power of Attorney in relation to any bank account as it lapses. There is no need to get a freezing order. Consider also if you want a deputyship put in place with the Court of Protection in relation to your mother now that the General Power of ATtorney has lapsed. This may be necessary in order that, for example, money is available for her care, now that she needs it.

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