Attorneys Behaving Badly
Britain has an aging population. The latest figures show that there are an estimated 850,000 people in the UK living with dementia. In 2013 figures provided to the Alzheimer’s Society show that in Kirklees and Calderdale alone there were almost 7,500 people diagnosed with the disease.
Many people are conscious that if they lose capacity in the future, because of an illness such as dementia, they want someone they’ve chosen to deal with their financial affairs. This has led to a huge increase in recent years of Lasting Power of Attorneys (LPAs) being made.
An LPA is a legal document which you complete whilst you still have mental capacity and gives one or more people the authority to make certain decisions on your behalf when you lose capacity.
Misuse or abuse of the powers given to attorneys under an LPA can have disastrous and far reaching consequences, as demonstrated by recent cases.
The case of Re SB (the names of those involved have been kept confidential to protect the victim) demonstrates what can happen when attorneys misbehave. A mother was diagnosed with dementia in 2009 and a year later she signed a LPA appointing her two sons as attorneys to manage her finances. In 2001 SB was sectioned under the Mental Health Act and subsequently went to live in a care home in Leicestershire.
One of the sons then used over £19,000 of his mother’s money to pay his farm suppliers and invested a further £24,000 of his mother’s funds in a biomass boiler at his farm. In addition, the mother owned two investment properties; but the rental income from them was not put in her accounts.
The matter was reported to the Office of the Public Guardian (OPG) in December 2012 and they investigated. The OPG is an executive agency of the government and has certain powers in relation to attorneys and deputies.
A deputy is someone who is appointed by the Court of Protection to make decisions on behalf of a person who has already lost capacity and where there is no LPA in place. Appointing a deputy is both time consuming and expensive.
The first son, who had used his mother’s money to fund his own farming business, astonishingly told the OPG, “I truly believe that we still have the best interest of our mum at heart.” The second son failed to respond to the OPG at all. The OPG investigation included a specially trained investigator visiting SB to speak to her. He decided that she did not have the capacity to decide whether she wanted to remove her sons as her attorneys, so the OPG took the case to court. The judge decided the sons had acted in a way which was not in SB’s best interests and revoked their powers under the LPA.
Attorneys and deputies have responsibilities and duties which they must abide by; if they do not abide by these or they do not act in the best interests of the donor, they could face investigation by the OPG and even Court of Protection proceedings to have their powers revoked.
The latest figures available from the OPG show that in 2013/14, they accepted 2,200 new referrals for investigation and 229 applications were issued at court to remove a deputy or an attorney.
The Mental Capacity Act 2005 Code of Practice applies to every donee of an LPA and every deputy appointed by the Court of Protection. Judges in the Court of Protection are concerned that many do not know of the existence of the code of practice, or if they do, are not familiar with the contents.
The Code of Practice sets out the following duties (Chapter 7 for attorneys and Chapter 8 for deputies):
• Duty of care
• Fiduciary duty
• Duty not to delegate
• Duty of good faith
• Duty of confidentiality
• Duty to comply with the directions of the Court of Protection
• Duty to keep accounts
• Duty to keep the person’s money and property separate
One of the main areas where attorneys fall foul of their duties is in relation to gifts. For more information about whether you are authorised to make a gift please visit our guide.
Helen Dandridge, solicitor with Ridley & Hall’s specialist Court of Protection department says, “Unfortunately, ignorance of the law is not an excuse. Many people incorrectly assume they can make gifts on behalf of the donor as ‘that is what they would have wanted’. Some even think they are simply taking what they are due to inherit anyway, so it doesn’t matter. This is wrong. LPAs are a great way of ensuring that somebody is in place to manage your affairs if you are no longer able to do so, but they are open to abuse and you must choose your attorneys wisely.”
If you are a deputy or an attorney and find yourself under investigation by the OPG, you need to seek legal advice at the earliest possible opportunity. The Court of Protection has a wide range of powers. These include, but are not limited to:
- Asking you to produce accounts and records.
- Making an order that you pay the legal costs of the application.
- Making an order that bank accounts be frozen.
- You could even be ordered to repay money back to the donor if the court determines that you have misused funds.
- If you are a deputy, you may be required to forfeit the security bond that was put in place when you were appointed.
In some cases, you may face a criminal investigation for offences such as fraud.
Have you been appointed as a deputy or attorney to manage someone’s finances? Do you know what your responsibilities and duties are?
Ridley & Hall’s expert team have experience of representing attorney’s and deputies who are faced with investigation by the OPG, or who are subject to an application to the Court of Protection to have their powers revoked.
Call us free on 0843 289 4640 for practical, friendly advice or email us. We can offer you a free 30 minute consultation and if you do want us to act on your behalf, we will be clear about our costs