Power of Attorney in Australia robbed Bank accounts

Posted by Molly Cat (363 days ago)

Here I am in HK., and Executor of my mother's Estate - she died in Australia last year.
My brother and sister were Enduring POA both medically and financially,(Now ceased because of my mother's death,) with my sister having full control of mother's bank accounts.

AS executors's role I asked her to hand over to me all personal effects of mother's Bank Books, passport, jewellery etc., - till probate was issued - she refused, and later I found out through extensive and yes - EXPENSIVE investigations with the Solicitors that the bank accounts had been "totally plundered," leaving "O" balance.

Even on the day that our mother died, she left the hospital, and withdrew funds from another account - we haven't found out the outcome of this as yet, as this seems to proving very difficult to unearth. Perhaps she is using her own name - I don't know.

She has "gifted my mother's jewellery to her daughters, saying that it was our mother's wish.

I think I need better legal help, as my solicitor in Australia (after sending her a "please explain" letter, (and of course there was no response from my sister,) advises me to "wait and see.
That was six weeks ago. I am totally over it.
Where do I go from here? PLEASE HELP I am going demented with it all.

This is the major issue, - there are minor things to deal with as well - but this is the item that is causing me stress and sleepless nights.
Thanks in anticipation.

(I am based in Hong Kong)

Posted by Saikunga (363 days ago)

That is not a good situation with your sister taking advantage of your mothers money - knowing that it should not have been used for purposes other than your mother's interests.

Where in Australia is this happening?

(I am based in Hong Kong)

Posted by Molly Cat (363 days ago)

This happened in Victoria, last year.
She will not respond to me or to Solicitor, and fails to answer any emails/phone calls/letters etc.
I am so distressed as to what she has done. I don't want to cause her any trouble, but still - for the Estate, and as my other two brothers are beneficiaries, I have to do SOMETHING.
A concerned friend here, with quite some legal experience, but not qualified, suggested I should fly to Austalia and seek out a good Litigation Lawyer and get it all sorted.
Surely, there is some other way than to do this to her. I feel so bad about this.

(I am based in Hong Kong)

Posted by Saikunga (362 days ago)

It will become a real problem for your family relationships if she insists on making you go the hard way rather than fess up and make up.

Are there other assests which can be inherited? If this is the case, maybe it can be worked out that seeings that she has taken the cash and run, if you know how much it is, then the remainder of the estate is divided up amongst the 4 (?) of you with just the balance that she is entitled to? does that make sense? I doubt very much you will be able to recover the cash or the jewellery from her. She obviously feels she is entitled to it and you need to look at the overall happiness and relationships between the siblings that will last alot longer than the money.

Wills and inheritance are always difficult times expecially when this happens. How do you think your mother would have reacted/ felt about this and what actions can you take to keep the family working well - even though your sister has seemingly betrayed all trust and responsibility.
Hard call - maybe you need to talk to her - just turn up and discuss the matter (unannounced) - maybe she has a serious problem with money (debts), habits (gambling, drugs, alcohol,)etc (or just greedy) - but you need to talk to her to find out why she took the money. Then get the laywers out if you feel this is what needs to happen.

I would also suggest you get a decent estate lawyer if you do need to create changes to the inhertiance to balance things out.

(I am based in Hong Kong)

Posted by Molly Cat (362 days ago)

Saikunga, Thanks for your reply.
There is a lot of money at stake, and already the other beneficiaries are becoming "toey."
Family relationships are suffering, as she is "burying her head in the sand," and will not respond to anyone now, after a huge and heated argument with her two brothers over the theft.
We all feel so disappointed in what she has done, and very much betrayed, as you say, - nonetheless, I feel I MUST take this further, and see that justice is done, and she repay back the money or whatever.
Do I have to start proceedings against her BEFORE I settle the Estate, as I figure if its AFTER, and the Estate has been finalised, I will have no funds with which to fight our case.
As to why she did this? I have no idea. She started taking out a few thousand every so often so it would not be detected.
I'm wondering if the Bank has any responsibilities over this as well, as I have been looking up the internet over similar cases, and Banks have a duty to protect their elderly clients who are mentally incapable of signing for themselves, and are being "looked after" by POAs who have the right to "sign" for them.
I am cross also that my brother did not see what was going on even though he was also POA - if he was more alert he could have stopped this happening.

(I am based in Hong Kong)

Posted by dotty1 (362 days ago)

Is she the executor of the estate? If so, you could probably apply to the courts for an injunction to freeze the assets and remove her as executor. You would rely on the fact that she has misappropriated the estate's assets and is not acting in good faith. The courts also have the power to make her personally liable for all the assets taken from the estate.

Even if she is not the executor - you could still apply to the courts for the same injunction to freeze the assets so that nothing else can be lost under the will is settled.

Sorry to hear about this, but you will find many lawyers are very cautious in this area as many familial relationships are destroyed when things like this occur. If you do proceed, you have to be prepared that your relationship with your sister may be lost for sometime.

(I am based in Hong Kong)

Posted by Molly Cat (362 days ago)

dotty1, Thanks for your imput.
I am the Executor, my sister WAS Power of Attorney, (no longer of course, because that role ceases when the person dies.)
You may be assured that funds from sale of the house, has been adequately safeguarded, and I don't have to take steps to have them "frozen," as you suggested.
You say the courts have the power to make her liable for the theft - now how, would I get to this stage?
Is this a normal procedure in Australia, I wonder, to sue POA for a return of funds?
Others have mentioned that it is not the usual way, and would not be very successful if it were to go to court. I don't understand this myself, as its obviously a theft, - whether its POA theft or criminal theft - its still THEFT.(isn't it?)
Is it the Criminal Court who handles this, - or Civil Court, - I really don't know, and desperately need some advice on these issues.
I haven't been in touch with my solicitor for a while, as he's not particularly helpful, and is of the opinion - lets be patient, and see what happens!
As for family relationships, I don't think I should let this aspect interfere in my decisions.
I thought about it a lot last night, and decided that WHO EVER was responsible,(whether Husband, wife, Uncle, Neice, whatever,) they should be accountable for their actions.
I must act without any emotion, and clearly and fairly with the responsibilities of the Estate to consider. It is unfortunate that she has brought this upon herself, and acted in a dreadfully shameful way, stealing from her mother, who suffered with Alzeimers.
Any help anyone can give me would be really appreciated. Thanks

(I am based in Hong Kong)

Posted by 68165 (362 days ago)

Molly Cat, you need a competent lawyer and you may not be able to get the helpful, specialist advice you need from subscribers to this (public) forum.

Consider contacting Catherine Gale at Kennedy Wisewoulds' lawyers. Although I don't know her or anyone from the firm personally, I can see from their website (www.wfl.com.au) that they specialize in areas that are relevant to your case and I know that Catherine Gale worked in Hong Kong as a solicitor for many years before returning to Australia and becoming the head of our law society (Law Institute of Victoria)last year. I imagine that she would be in a good position to advise you or to refer you to a suitable specialist firm.

(I am based in Unspecified)

Posted by dotty1 (362 days ago)

Sorry I misread your original post but the previous reply still applies. Under the Enduring POA your sister was obliged to act in a manner that reflects the best interests of the donor of the POA, your mum. This is usually spelt out in black and white in the relevant state or territories legislation. Have a search for the legislation for your state/terrority (where the POA was issued) and it will have a section on "relief/remedies for breach of duty - for enduring attorneys. You will see that the public trustee, or trustee company or any person can apply to the court to commence proceedings and obtain relief - this is usually compensation, The legislation will usually set out the mechanics of this process. The amount of the relief claimed will determine which civil court you can apply to.

The court will have the power to make the attorney produce documents, accounts etc

You really should get specific legal advice as if there are other beneficiaries they might claim, that you – as executor are not fulfilling your duties and protecting the estate. This could be seen to be done by applying to the courts as soon as you found out what your sister was doing. Not meaning to scare you but both being an attorney or an executor are important roles and you want to make sure are acting in compliance of your legal requirements.

(I am based in Hong Kong)

Posted by associates (360 days ago)

Did your mother hold any assets in Hong Kong or are all the assets in Australia? Am I right that you are an executor for her estate in Australia as an Australia's lawyer is retained to handle the matter? Please let us know before we can give you any comment. If you wish to discuss in confidence please contact our offices.

Weir & Associates
Solicitors & Notaries
2108 Gloucester Tower
The Landmark
15 Queens Road Central
Hong Kong
Tel : 2526-1767
Fax : 2868-3568
email : weirlaw@hongkonglaw.com
www.HongKongLaw.com/weirlaw

(I am based in Hong Kong)