..to think it's wrong to ask for an advance on inheritance

[RealSeal]

My brother is asking for "an advance on his inheritance" to help him buy a house. He's in his 50s and has a decent job but is getting divorced having been separated for several years. He admits himself he could have made better financial decisions in the past.

Father is elderly and in a care home, but has no serious illness and may have several more years ahead of him. There are 5 of us. Another sibling has Power of Attorney but consults us, about major decisions. My father does have substantial assets at the moment. They are being spent at a considerable rate on care costs and, of course, we have no idea how long they will be required or whether they may need to increase.

If we don't agree to give him the money my brother will accuse us of ganging up on him, not being sympathetic. I appreciate he’s in a difficult position and not where he expected to be at this time of his life, but we surely all have to be responsible for ourselves and our own decisions? He’s not in a desperate situation, about to be made homeless. He would just like me to buy a house.

One of my other siblings thinks it must’ve taken a lot for him to ask. I’m not so sure. I think he’s got nothing to lose. If he gets the money, great for him. If he doesn’t, he’s no worse off. He’ll blame us for his situation. He doesn’t care about nurturing relationships with us.

As well as being against it in principle I’m also worried that, if it was agreed to, how would we ensure that this “advance” was taken into consideration when my father’s will is eventually executed? It just seems very messy and would prolong the stress of dealing with this.

AIBU to say no?

The POA will need permission of Court of Protection to make such a gift. I can see why grasping brother isn’t the POA. Any such gift isn’t in the best interest of your father.

Please don’t seek legal advice. You don’t believe that your father would want to provide this gift and that’s the most critical point. He should not be placed in a position where he is being encouraged to give away his money by his children. The default assumption should be that he would keep his own money. More than likely your fathers money would be spent on seeking the legal advice which would then place him in a horrible position.

Secondly, there is no need to seek legal advice because of POA’s duty is clear. This is not in your father’s best interests so the POA cannot agree to this. That’s the end of the story. The POA should feel very comfortable in laughing your brothers suggestion off and explaining that this can’t be done now that a POA has come into effect.

Only go down the road of legal advice if your father enthusiastically wants to do this and all siblings are in complete agreement that they want to make this happen.

you need to reframe this as your brother wanting what’s best for himself using your fathers money over and above his fathers interests. Pretty grim.

@1987qwerty dad does not have the means to make payment himself, however, I suppose it is possible he could be influenced to instruct POA to do so. The only thing I'm grateful for is that my brother hasn't already asked my dad.

@ilovepuppies2019 he has specifically asked for the conversation to be reframed around needs ( his needs)!

During this conversation be sure to differentiate between needs and wants.
With his settlement your brother will be able to meet his housing need. However he wants rather then needs nicer housing.

There’s no discussion to be had! No one has authority to make the gift! Your dad doesn’t have capacity and the PoA doesn’t have authority. CoP application required, costly, takes ages, how is it in your dad’s interests? The guidance for attorneys on the gov website clearly sets this out. It’s a complete non starter for your brother.

I’d say no.

1. because it could be seen as deprivation of assets
2. because your dad could live many more years and use the remaining funds on his care leaving you and your other siblings with no inheritance but your brother would’ve got some form of inheritance - which isn’t fair

@ilovepuppies2019 Myself and others aren’t advising the OP to seek legal advice, it would be the attorney and the Dad who’d need it IF the brother keeps pushing for the money.

TBH, it’s probable that once the attorney explains that they can’t hand over cash, deprivation of assets, legal implications for the recipient, etc.etc., the brother will stop asking.

What a bloody cheeky fucker your brother is. Your dad was given the chance to distribute money earlier and he declined. That says everything.

How does he know there will be an inheritance? He might convince you or your dad to give him a lump sum and then dad might use up the rest. What happens then if dad is still alive? He'll have to pay for dad's care as local authority will ensure this happens. You and your other siblings will see 1 brother get money and the rest of you not which will only cause resentment.

There are ways to deal with this in a will. The will might say the money gets divided 5 ways but brother's share is reduced by the lump sum amount and that amount is then divided by 4 and given to the rest of you in equal portions. My mom's will has something like this. But frankly it bothers me and my other brothers that one sibling got an interest free loan to buy a house 20 years back while we are paying for mortgages.

As others have said, it’s not in the best interest of the father so, regardless of power of attorney, you can’t approve it.

You have had solidly good advice OP. The other thing I would want to say to your CF brother is that he has NO inheritance until his father is dead. There is no such thing as an advance on an inheritance.

If your DF has an active attorney acting for him (your sibling) then I presume he doesn't have capacity to make this decision. It will be left to the attorney to make the decision and they are legally obliged to act only in your DFs best interests. Giving away assets that he needs to pay for his care can never be classed as being in his best interests. Your sibling must not give away your SF's money to your brother as they would be breaking the law. They would be laying themselves open to criminal prosecution, it's that simple.

I don't think it's legally or morally right.

I'm also pleased for your father that the child he chose to have POA wasn't this one.

I dislike the concept of asking for an early inheritance in general as it feels like you're prioritising someone's money over your relationship with them. Plus, you know, it's impossible to know how much money will even be left. However, I am especially outraged that someone has asked for an early inheritance from a man who already has care needs and therefore is likely to actually need the money for his own use.

Any decent child should want to ensure their parent has the best possible care for their needs, rather than OKish care as long as they can afford to buy them a house. If you don't care enough about someone to want the best for them, why on earth should you be entitled to their money?

Say no. There is no inheritance until your df dies. He may need all of his money for late life care. Unless your df is quite wealthy and is divesting assets as an inheritance tax avoidance scheme, which doesn't not seem to be the case here, it is financially irresponsible to dispose of assets before death.

I think you have your answer then

I’m no lawyer but I was PoA for both parents up until they died. Both of them were in care homes.

It’s not as if it would have been my money to advance & my priority would have been managing it & spending it on my parents in the right way.

Exactly. An inheritance doesn’t exist until the person dies. What he’s asking for is basically a gift. And he’s saying “but it can be deducted from what I would have got from Dad’s will”.
As @Gymnopedie pointed out, POA doesn’t authorise gifts to be given out of your dad’s money.
Brother is being grabby anyway IMO. Nobody should be looking at their parents’ money and property and thinking of it as theirs.

Thanks again for all the replies. It's reassuring to see such a strong consensus of views on both the dilemma and the audacity of my brother to even ask!

I would not consider doing this. I know a couple local to me where the wife was POA for an elderly aunt who they were expecting to eventually inherit from. They decided to take some early inheritance. Another relative discovered this and reported them, the aunt said that she was unaware of the payments although the couple stated that the aunt was forgetful and had agreed. It all went to court and both husband and wife were found guilty and spent a few months in prison. Your situation may be a bit different but I wouldn't want to risk it.

Just one other thing that I don't believe has been mentioned. No-one should be giving your brother anything before there is a final order in relation to the finances between him and his wife/ex-wife. If he is gifted money, that might affect how the wife sees things if they are trying to settle the matter outside of legal proceedings or, if there are legal proceedings, how the judge views things.

Remind him that his dad isn't actually dead yet so there is no inheritance for him to get an advance from.

This is a good point.

However regardless of this given the OP's update re: her father's mental capacity and previous decisions in choosing not to gift money, I'd say the path forward is clear and there is no reason to take legal advice.

Essentially he wants a cash gift from your father. Framing it an early inheritance is a misnomer given you can't inherit anything whilst a person is alive.

The inheritance doesn't exist yet. Only your father's current assets about which it is very difficult to predict how much he will need.

The brother is being especially grabby in the context that without this money he is not going to be homeless. He just wants a bigger house that he can't afford. Well that's just tough.

You all need to tell him to back off and especially not to harass your father about this. If he interprets this as being ganged up on, then the response is "Yes because we all agree that you are motivated by self interest at your father's expense".