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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22977
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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1. My husband has an enduring power of attorney mother - it

Customer Question

1. My husband has an enduring power of attorney for his mother - it was issued in 2001 when his father died. His mother has dementia and is bi-polar. Mum is presently living in an aged care situation.
My husband's brother has managed to access mum's accounts and has taken money and not paid it back.
This brother has also obtained a power of attorney. He told mum's clinician that there was no power of attorney. The clinician wrote a letter of support. The brother took mum to a lawyer and obtained a power of attorney.
Is the second power of attorney valid?
How do you put a stop to the second power of attorney?
2. Mum has a small insurance policy that will hopefully cover the funeral. Dad is the owner of this policy. Dad is deceased. Does the ownership of the insurance policy need to be signed over to someone else in order for it to be paid out?
3. Also my husband was declared bankrupt in 2010. He has since been discharged. Is this an issue in relation to the first power of attorney?
I look forward to your response.
Lee Manaia
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

The problem with any power of attorney is whether the person giving this had the capacity to understand what she was signing. Normally each party has to get independent legal advice so your mother should have had this separate advice. If at the time she signed the later POA you believe she was not capable, and she did not get independent advice, the POA may not be valid. To challenge this you would need to apply to the Family Court to have a property manager appointed instead of the POA.

Expert:  Chris The Lawyer replied 1 year ago.

The policy will have passed back to your mother, as your fathers heir, but when she dies, there will be forms to complete to get the policy paid out.

Your brother can be charged with theft if he has taken money from your mother like this, so you may need to consider that option. But certainly with proof of theft it will be easy to replace him, and I would suggest you start by telling him that if he just destroys his POA and reverts to yours, then that will be the end of the matter, but that he should also repay the money. If he refuses then you will need to apply to replace him and likely complain to the police.

yOur husbands bankruptcy will not affect the POA however