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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22322
Experience:  37 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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My brother holds my mothers power of attorney. my mother

Customer Question

my brother holds my mothers power of attorney. my mother [who has dementia] has given/lent money to my youngest two siblings.
My poa brother has deemed the money recieved by the sibling he gets along with as being a gift, while the other, who he does not get on with, siblings is a loan and is demanding repayment.
Is he correct in what he is doing?
thanks Frank
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

As the holder of the power of attorney, your brother does have this power to describe one transaction is alone and the other as a gift. But the circumstances under which the loans were made would be important, and the issue may be whether your mother is able to say which sort of transaction this was. If she has advanced dementia and unable to understand what is happening, then I think it is likely that any court would be reluctant to force one sibling to pay a loan and the other receive a gift. In that circumstance the evidence from the siblings would be important, and they would need to be able to say whether these were intended to be gifts or loans. So while your brother can try to recover, they may have a defence if they can show that this was intended to be a gift

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