What is the law with apointing someone as power of attorney for your property and assets when incarcerated. Them

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Customer: Hi what is the law with apointing someone as power of attorney for your property and assets when incarcerated. Them collecting rent and not paying any mortgage, then being released and within a month being forced into a mortgagee sale by bank and lawyer. I'm more wanting to know the ins and outs of if I should be in this situation since I appointed someone power of attorney?
JA: What steps have they taken so far? Have they prepared or filed any paperwork?
Customer: Yes. U connected me to realestate lawyer. I think it's wrong
JA: Where is the property located?
Customer: Coromandel peninsula
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Laws on power of attorney and what the lawyer in control of it should have handled it
Answered by Chris The Lawyer in 7 mins 1 year ago
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Chris The Lawyer
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Chris The Lawyer
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Chris The Lawyer
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Chris The Lawyer, Expert

Hi My name is ***** ***** I am a New Zealand lawyer with more than 42 years of experience. I am here to help with your questions.

Customer
Awesome can u help with my above question
Customer
Hi what is the law with apointing someone as power of attorney for your property and assets when incarcerated. Them collecting rent and not paying any mortgage, then being released and within a month being forced into a mortgagee sale by bank and lawyer
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Chris The Lawyer, Expert

If you appoint a power of attorney they owe you fiduciary duties to look after the property and collect rent to pay the overheads. If they don’t apply the rent and thereby cause the mortgagee sale you can sue for the breach of the fiduciary duty

Customer
What is fiduciary duty
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Chris The Lawyer, Expert

A duty of good faith to look after the property

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Chris The Lawyer, Expert

What did the attorney do with the rent they collected?

Customer
part does the lawyer who looked after the case of appointing power of attorney have? Like does he have responsibility to oversea that the mortgage gets paid
Customer
We have just learnt that he has paid his own mortgage which was behind and gained assets in the time
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Chris The Lawyer, Expert

The lawyer is only responsible if they were instructed to supervise the attorney

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Chris The Lawyer, Expert

But if money was taken by the attorney that is theft and the police should be involved

Customer
We are unsure on this because the meetings with lawyer were very brief with the person who was incarcerated and appointing power of attorney
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Chris The Lawyer, Expert

If the attorney collected rent and didn’t pay this on the mortgage then that is theft

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Chris The Lawyer, Expert

If the lawyer was involved and advising the attorney then the lawyer could be partly responsible

Customer
He pushed to become power of attorney to get renters out of the house before they wrecked it, this happend and he organised and put in new renters, and none of the currant tenants rents or the previous tenants rents were put towards the property, house or mortgage, it's nowhere to be seen, except gained assets and as we've just learnt to cover his mortage
Customer
In what way would he be advising the attorney
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Chris The Lawyer, Expert

You need to complain to the police

Customer
How would I do so?
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Chris The Lawyer, Expert

You go to any police station and lodge a complaint of fraud and theft

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Chris The Lawyer, Expert

You can also bring a civil proceeding against the attorney for your losses

Customer
Okay and the house is on the market, and bank has given a time frame for it to be sold. Is there s way to put this on hold, and save the sale of the house
Customer
What is the best option in your opinion
Customer
What will happen in regards ***** ***** attorney
Customer
The bank has alowd time for it to be sold before it goes morgagee sale
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Chris The Lawyer, Expert

You need to take action against the attorney to claim for the lost money both with the police and a civil claim. If the police agree he stole your money he could go to jail

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Chris The Lawyer, Expert

You need to instruct a lawyer to help with the issues and help with the bank

Customer
What if you just done civil claim
Customer
Is a community lawyer eneogh for a case like this,
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Chris The Lawyer, Expert

You can choose to just bring a civil claim but you do need an experienced lawyer

Customer
what will happen to attorney with just a civil claim
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Chris The Lawyer, Expert

You would try to make him pay for your losses and repay the money he took

Customer
What do u mean try
Customer
The mortgage is behind 30grand, he got appointed attorney half way thru the time of person incarcererated who appointed him
Customer
The property is also owned by the ex wife of the incarcerated
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Chris The Lawyer, Expert

By try, I mean bring a claim in court. Are you sure he took money? Has he explained what happened or where the rent went?

Customer
Who was in another city and neglected the property the whole time
Customer
The person who appointed him has not seen a dollar, no mortgage paid, no work on property
Customer
is not claiming half when the house sells and rushing the sale
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Chris The Lawyer, Expert

You need a lawyer to go through all these issues with all the information and advise on the best options.

Customer
He's acting in a way that he was none the wiser, shocked the house is on the market even tho he got letters about the mortgage
Customer
I wanted to know how to go about it, and to also confirm that I am right on the breach
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Chris The Lawyer, Expert

If his appointment as attorney was to look after the property and collect rents to pay the mortgage but he failed to do so, then he is liable for any losses

Customer
Is there anyway they can find the attorney not responsible, or is he 100% responsible? For the person who appointed him as attorney to be standing there with nothing, and loosing his house the reason for and paying for appointing someone to look after and handle it all
Customer
What is the standard for looking after property? Wouldn't paying the mortgage if able to be a given
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Chris The Lawyer, Expert

From what you have told me I think he is liable. If his appointment was to collect rent and pay the mortgage and he failed, he is liable

Customer
should his lawyer of mentioned this breach to him,
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Chris The Lawyer, Expert

I don’t know what the lawyer was instructed to do

Customer
It was pre written when shown to the incarcerated and was a rushed visit, with just the lawer
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Chris The Lawyer, Expert

If the lawyers job was to prepare the power of attorney document then he would not usually supervise the person appointed unless specifically asked

Customer
Mentioned the breach to him when he got out of jail, and a morgagee sale had been mentioned
Customer
He looked after it on all ends and only him
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Chris The Lawyer, Expert

It’s hard for me to comment as clearly this is a complicated case. But if the lawyer failed to supervise and had been asked to supervise then he may also be at fault

Customer
We are unsure. We wonder why the lawyer hasn't come to us and said that the power of attorney has breached. And is also rushing the sale of the house
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Chris The Lawyer, Expert

That is why you need your own lawyer and give them the full story

Customer
if the attorney couldn't look after property or pay mortgage what should he have done
Customer
The lawyers ment to represent the owner of the house, and has failed to mention the breach of attorney duties and is rushing sale
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Chris The Lawyer, Expert

He should not have taken on the appointment if he couldn’t do the job.

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Chris The Lawyer, Expert

If you have more comments please leave them on the site and I will respond in the morning

Customer
the lawyer hasn't even mentioned the attorney since the owner of house has been out of jail.
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Chris The Lawyer, Expert

As I mentioned earlier your next step is to get detailed advice from an experienced lawyer. On this site we only see a small amount of the background information and can only give general advice

Ask a lawyer and get your legal questions answered.
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