This week we report on a ruling in which a general power of attorney contained in a living will was interpreted very broadly. An adopted son who, on the basis of such a power of attorney, had managed the financial affairs of a vulnerable, very elderly man for many years, made countless expenditures for his own benefit. On 30 June 2026, the Court of Appeal in \u2019s-Hertogenbosch ruled that this constituted an abuse of the power of attorney \u2013 and was therefore unlawful, even though the living will did not specify a supervisor and the foster son was fully trusted.<\/p>\n
What were the facts of this case?<\/strong><\/p>\n A man, born in 1928, unmarried and without children, developed a close bond with his brother\u2019s foster son. From 1995 onwards, the foster son lived with his family on the plot of land adjacent to the man\u2019s farm. In 2021, the man moved into a care home; the farm itself was sold in 2023, as evidenced by the deed of transfer. In 2015, the man drew up a will in which he appointed the foster son as his sole heir and executor. This was followed in 2016 by a living will, in which he granted the foster son a general power of attorney to manage his financial and business affairs.<\/p>\n The living will contained explicit instructions: the attorney-in-fact was only permitted to act in the man\u2019s best interests, was required to exercise restraint and limit himself to day-to-day matters should the man be temporarily unable to act for himself, was not permitted to make any gifts, was not permitted to charge a fee, and was required to provide an annual account of his actions. A supervisor was deliberately not appointed, as the man had complete trust in his foster son.<\/p>\n Between 2016 and 2023, the foster son made numerous payments from the man\u2019s bank account to third parties with whom the man had no connection whatsoever, and transferred large sums to himself and his then-wife. In 2020, Veilig Thuis investigated whether elder abuse had taken place following a report of concern, but closed the case without being able to confirm or refute the concerns. Following the sale of the farm in 2023 for \u20ac1,600, 000, \u20ac364,000 of the proceeds was used to purchase a mortgage-free property for the foster son himself, based on a document stating that the man had lent him this sum \u2013 signed with a forgery of the man\u2019s signature by the foster son. A Range Rover was also registered in the foster son\u2019s name.<\/p>\n Due to his physical and mental condition, the man was placed under guardianship in 2024, with Pro Bewind acting as guardian over his assets. It is important to note that the man was still alive at that time and that the guardian therefore acted to safeguard his interests during his lifetime \u2013 not as an executor of an estate.\nThe fact that the foster son had been named as sole heir in the 2015 will was therefore irrelevant to these proceedings: as long as the man is alive, the assets are and remain his own, and a will does not confer any right to anticipate their transfer whilst he is still alive. The guardian claimed, on behalf of the man, repayment of the unlawfully withdrawn sums: \u20ac162,963.38 in bank transfers, \u20ac517,401 in other withdrawals for private purposes, and \u20ac364,000 in connection with the forged loan agreement. The court largely upheld the claims, ordering payment of a total of just over \u20ac1 million. The foster son lodged an appeal, citing the living will and the will as evidence that the man had in fact intended to benefit him financially.<\/p>\n The court of appeal\u2019s considerations and ruling<\/strong><\/p>\n The Court of Appeal first held that the criteria set out in Articles 3:33 and 3:35 of the Dutch Civil Code apply to the interpretation of a power of attorney: what matters is what the parties have mutually declared and what they could reasonably have understood from each other\u2019s conduct. A living will is not a final disposition of property and cannot therefore be interpreted using the special rule set out in Article 4:46 of the Dutch Civil Code. That provision applies to the interpretation of a will and, unlike in the case of a power of attorney, takes into account primarily the subjective intention of the testator themselves \u2013 including on the basis of circumstances outside the text \u2013 precisely because, in the case of a will, there is no need to protect a counterparty. A living will, however, constitutes a (continuing) power of attorney, supplemented by instructions for the attorney-in-fact, and must therefore be interpreted in accordance with the ordinary rules governing legal acts.<\/p>\n Although a general power of attorney does arise from the living will, the instructions contained therein make it clear that the foster son was permitted to act solely in the man\u2019s best interests and was required to exercise restraint. The fact that he was obliged to render an account, was not permitted to make any gifts and was not allowed to award himself any remuneration indicates, according to the Court of Appeal, precisely that it was not the intention that the foster son should be able to withdraw money from the man\u2019s estate at his own discretion.<\/p>\n Nor did the will provide any basis for the expenditure incurred. The Court of Appeal considered that a will regulates the situation following death and does not confer the right to take an advance on any sum from the estate of the future testator whilst the latter is still alive \u2013 quite apart from the fact that a will can always be revoked or amended.<\/p>\n The foster son also relied on an oral agreement (\u201cIf you look after me, I\u2019ll look after you\u201d) and on the report from Veilig Thuis, which was said to show that the man had approved all the expenditure.\nThe Court of Appeal did not uphold his arguments on either point. There is no evidence whatsoever of the alleged agreement; the statements from family members say nothing about what was actually agreed between him and the man. Moreover, the report from Veilig Thuis actually shows that the agency had the strong impression that the man was unaware of the numerous expenses and was taking his foster son under his protection. The fact that, when asked, he said he was fine with \u2018bits and bobs for personal use\u2019 being bought is insufficient to constitute approval of all the expenditure, as long as it is not established that he was aware of it. His dependence on the foster son for care and accommodation should, in fact, have been a reason for caution in the use of the power of attorney.<\/p>\n The Court of Appeal concludes that the foster son made numerous expenditures, bank transfers and withdrawals without being authorised to do so, and that in doing so he abused both the power of attorney and the man\u2019s vulnerability and dependence. This constitutes unlawful conduct.<\/p>\n However, the Court of Appeal does make a correction when assessing the damages: unlike the District Court, the Court of Appeal finds that the renovation costs for the farmhouse (\u20ac158,430.78) were in fact lawful. These costs were for the benefit of the man\u2019s own home and were incurred during a period when he was still living there and was fully capable of making decisions. The Court of Appeal rejected the application for a reduction in the damages: given the systematic and long-standing nature of the withdrawals and the man\u2019s relationship of dependency, the Court of Appeal saw no grounds for exercising restraint in this regard.<\/p>\n