What if the executor sees fraud by power of attorney?

This is another reader question. I seem to be starting most of my posts this way lately (which is great, keep 'em coming). Someone asked about an executor who believes that the person who had been acting under a Power of Attorney has perpetrated a fraud against the deceased. Specifically, the reader wanted to know whether the executor has the right to look at the Power of Attorney's records.

Yes, he does. When the deceased died, his or her Enduring/Continuing Power of Attorney came to an end. The attorney acting under the Power of Attorney was then under a legal duty to account to the executor for his or her care and management of the deceased's financial affairs. An astonishingly high number of people acting under Powers of Attorney seem to think that they are entitled to do whatever they want with someone else's money, including taking it for themselves, and the accounting to the executor is often where they get caught out.

If I were an executor in this position, I would consider the fact that one day soon I would have to divide the estate among the beneficiaries and explain to them why the estate is smaller than everyone thought. Are they going to believe me when I say the loss was not my fault but that of the attorney, when I made absolutely no attempt to make the attorney explain the loss? I doubt it.

An executor is in a legal position to demand an accounting, and may request additional back-up evidence such as bank statements, receipts, cancelled cheques etc. If the attorney refuses to co-operate, the executor may end up asking the court for help. Fraud is fraud. The fact that a person was appointed attorney under a Power of Attorney makes a theft worse, in my view, because it involved taking advantage of someone who trusted him.