Family fallout POA/Trustee

[mumtumtru]

Long story short, my husbands mother had a mental breakdown during covid, and now has to have 24 hr live in care. The father has sadly already passed and all her affairs have been left to her 3 children to sort out as she's incapable of making a decision. The 3 siblings share POA over finances and her health. My husband (eldest) is a sole trustee along with his mother on trusts that hold several properties and portfolios.

There's been a big fall out with the sister over the mothers care (she wants to do it her way, ignoring the wishes of the other two). One brother hasn't spoken to her for almost a decade over a separate issue, and my husband is getting very close to cutting her out completely. She's impossible to communicate with as most of her messages are entitled and vitriolic in nature, you cannot make firm decisions on anything as she changes her mind at a moments notice. This obviously causes him great stress, and in turn us as a family.

The latest issue is she's started to make it difficult for my husband to make changes to the properties that are in the trust. He would like to rent them out, so he isn't lumbered with having to sort out their maintenance etc, especially as none of them live nearby and also help to cover the mothers care costs, but she's said he cannot do this and they 'all have to agree as a family' (the irony...) when in fact legally its actually just him and his mother. The sister has also just started to take large withdrawals from the mothers bank account, significantly over the amount required for her care costs.

It's all getting really nasty and I feel for my husband who's now receiving counselling to help deal with it all.

Has anyone been in this situation before and can offer any advice? Can you appoint a solicitor/accountant to act as a 3rd party, how does this practically work?

Your husband needs proper legal advice.

You’d DH needs legal advice on his role as a trustee and whether that trumps the POA role the siblings have. That’s the issue isn’t it. So see a solicitor. Also talk about what can be done about excessive payments being made. Are all attorneys signing these off? What oversight is in place? What should happen?

LPOA would not normally allow the sister to take over the mother's trustee functions. However, the trust deed may include provisions as to what is to happen in these circumstances. There is another issue in that trustees must make decisions unanimously unless the trust deed says otherwise. Your husband may, therefore, not be able to administer the trust (which means he can't make the changes he wants) until his mother is removed as a trustee. He needs to take legal advice.

It is also important to understand whether they are joint attorneys, in which case the sister cannot act unilaterally, or joint and several, in which case she can. If she is misusing her power of attorney, you need to report it to the Office of the Public Guardian. They have the power to remove her as an attorney. If you suspect theft, fraud or abuse, you should also report it to the police and social services.

He can make a report to the Office of public guardian regarding her financially abusing MIL via her LPOA status

Thanks for the reply, yes the trustee trumps POA so legally he has the rights to do what he likes with the properties/portfolios as long as they are within the best interest of the trusts, which is of course what he's trying to do but she's making it difficult with messages/handwritten notes left in the property etc. He is only been assigned trustee as after the husband died, the other solicitor that was down as a trustee with the mother also died and they needed two so as the eldest he stepped up. The house in question is falling apart and the mother unlikely to live there again full time as she wants to be near the sister. He thought holiday let would be best option as allows sister and mother to use it. In doing that you have to dismantle a family home full of memories which the mother is against doing, and I can of course understand why. However, the reality is the responsibility of the maintenance of said home is passed down to my husband as realistically the only active trustee out of the two of them and we live 3 hours away. At the moment he's settling on having a company come in and check on it every month etc, run the water, check the electrics, regular cleans etc which might be a fair compromise. The payments are being taken by the sister, no one is signing them off, there's no attorneys involved they just share the PoA between the 3 of them, she has access to one account as does my husband who's seeing these large amounts coming out but doesnt want to communicate with the sister about them directly as it just invites yet another emotional/vitriolic msg back.

Three attorneys is an issue. They should agree what they are doing. Or is it one with two back ups?

Regarding a holiday let. Are you seriously saying this is a commercial proposition. If it’s falling apart and it’s a granny home, it’s not. I let out a house for holidays and this sort of property turns people off and you will get complaints. I would have a family meeting and try to discuss it. Sale is probably best.

The POA is jointly and severely, so she can make decisions on behalf of the mothers health and finances without the other two needing to be there as I understand it. However the trusts trump the PoA so those decisions are to be made between mother and son as the active trustees, so the sister has no say in what happens to the properties, that being said its been her family home so I understand how she feels and she also is agreeing with the mother who wants to keep it as it is but reality of situation is neither sister or mother will be looking after it, my husband will. The solicitor that he's seen has suggested removing the mother as a trustee (as she's not actively working in the best interest of the trusts) and replacing her, however who do you replace her with, if you choose the other brother then the sister gets the hump, if you have all 3 of them then it could be like how it is now...fraught, so the other option is a solicitor, but the mother has to agree to it all, she can't agree to anything her default answer is "Ill think about it". It's honestly a nightmare. Any communication from the sister sets my husband off into a dark cloud for days, I don't want this for potentially the next 25 years until the mum passes away.

I’d be getting legal advice and reporting her for theft, I’m fairly sure that’s what it is.

This about the trustee is important. I’m applying for Deputyship for my stepfather, and we will sell his home to go towards his care home fees. But he will have to be replaced as a trustee in order to do this. The solicitors dealing with the Deputyship application will be his replacement trustee to ensure impartiality. The applications went into the court of protection in October, and we’ve been told to expect it to take 6+ months to sort.

The PoA is shared jointly and severely, so regarding finances and health the sister can make decisions on behalf of her mother without the involvement of the other two. She's fully taken over the care of the mother, installed 24 hour care, including a separate carer for the 2 hours the carer is on her break. This would be fine, however the mother has got progressively worse (waking up throughout the night and going into carers room to check shes there, mobility issues as she lies in bed all day, weight loss etc). If there is a break between carers, or she sacks them arbitrarily (because they dared to try and encourage the mother to do something for herself), and she couldn't find another one to start in time the sister was contacting the brothers expecting them to step in at the last minute to look after the mother which was impractical as they have senior jobs/families and live 6 hours away! Hence the big argument...

The trusts that hold porfolios and 2 properties are shared between my husband and the mother, they trump the PoA (thank god!) so technically he can make decisions with the approval of his mother only. The problem is the mother doesnt want to do anything as its a "family home" (a family that doesnt talk to each other! and she doesnt live in!) and the sister is upset because she sees the mother upset and feels the same way we presume (mixed msg, one minute shes fine with renovating the next shes not).

The house itself is a 5 bed semi detached with view of the sea in a popular holiday destination, its got good bones but needs the old antique furniture removed and put into storage or sent up to sister/mother, repainted, new carpets, updated electrics, and new furniture put in before it would be in a position to be rented out. He's suggesting to do some light reonvations, and as a middle ground to get a maintenance company to come in and check on it, flush toilets, check water, get it regularly cleaned and leave it as it is...presumably until the mother dies as no one can agree.

Its a tricky one, as much as we've very firmly fallen out, I still feel awful about it and care for the sister and see how this is not an easy situation for any of them to be in. Resentment has built up as she feels the care is all on her, but that's because the other 2 brothers don't agree with her approach and she may be helping herself to the mums money as a result of that. I honestly don't think that's what she's doing as she doesn't strike me as that sort of person, she deeply cares for the mother. The problem is if my husband msgs her and asks her about the money she will just likely reply with something childish and he cant be bothered with it and so the saga continues. No one is communicating, the sister wants to shes made that clear but when it comes to it she acts very childishly as she's hurting and neither brother has time for it frankly.