Gary Rycroft: Article from This Is MONEY

How can I get my brother to produce documentation that reveals how much he sold my mother’s house for, where he put the money and how much, if any, is left? He was given power of attorney to sell my mother’s house, which was in the Caribbean. Since my mother has died he is reluctant to let us know any of the above details and is making no arrangements to split the remainder of the money, in accordance with her will. Power of attorney: Brother sold mother’s home in the Caribbean on her behalf several years before she died. The house was sold several years ago and mum died last year. My oldest brother and sister are the executors of the will. The brother who had power of attorney was our younger one. My mum’s children inherit under the will. Can I take my brother to court over this? If so how?

Gary Rycroft, partner with Joseph A. Jones & Co Solicitors, replies:

A financial power of attorney gives the named attorney legal authority to deal with the property and finances of the donor of the power. It does not confer on the attorney any entitlement to personally benefit from the donor’s assets.

When your younger brother acting as attorney for your mother sold her house several years ago, he should have accounted to your mother for the money released by the sale. Following your mother’s death last year the money from the house sale should be part of her estate being dealt with by the executors of her will. Your younger brother apparently keeping the money from the house for himself amounts to financial abuse of your mother and possibly theft.

If the power of attorney and house sale had happened in England and Wales you would be able to report your concerns to The Office of The Public Guardian (OPG) Safeguarding Unit, which investigates situations where attorneys have not acted or are continuing to not act properly. In many cases investigated by the OPG a criminal conviction against the wayward attorney will follow. In your case the power of attorney was held in respect of property owned by your mother outside the UK. It is always more complicated to enforce legal rights across jurisdictions. You may have to contact a lawyer in the country involved to assist with issues which occurred there.

In addition, the person whom an offence seems to have been committed against is your mother. So whilst she was alive it was she who had the right to pursue any remedy. Your mother’s death last year casts a different light on the situation. The executors of her will (who you say are your elder brother and sister) have the legal right and indeed duty to call in the assets of her estate to distribute between the beneficiaries chosen by your mother and named in her will. As you are one of the beneficiaries of the will this does give you the legal right to ask the executors to pursue a claim against your brother for the monies not accounted for from the house sale. If there are other assets in the estate apart from the missing money, the executors could simply deduct the missing money from your younger brother’s share of the estate. If the figures do not add up to allow that, the executors have power to bring a claim against your brother in court for the missing money. They will need to collect evidence such as copies of documents from the lawyer abroad to show your younger brother dealt with the sale in his capacity as attorney. The executors of your mother’s will have the right to obtain these papers, which were previously confidential to your mother. If the executors will not co-operate with you in terms of pursuing your younger brother, you could argue they are not fulfilling their duty and ultimately you could take steps to have them removed and for you to be appointed as executor instead.

It is all very sad for your family and maybe getting all of you together (including your younger brother) may serve to resolve matters without having to go down the various legal routes set out, which will be long winded and costly.

This article first appeared on This Is MONEY