Acting as an individual’s Attorney conveys a position of trust, making it ever more devastating to discover that a deceased loved one was financially exploited by someone in such a role. Fortunately, there are several steps you can take to hold the Attorney to account and recover misappropriated Estate assets.
The Role, Duties and Limitations of an Attorney
A Lasting Power of Attorney (LPA) for Property and Financial Affairs is a legal document that allows an individual (the Donor) to appoint a friend or family member (the Attorney) to manage their money and financial decisions on their behalf if they lose the capacity to make decisions for themselves.
A Property and Financial Affairs Attorney makes decisions about, or helps the Donor make decisions about, things like money, tax, bills, bank and building society accounts, property and investments, pensions and benefits, and is permitted to use the Donor’s money to look after their home and buy anything they need day to day.
Key duties of a Financial and Property Attorney include: a duty to keep accurate records, to act within the LPA restrictions and to keep the Donor’s assets separate from their own. However, their primary duty is to act in the best interests of the Donor, prioritising their needs and preferences and helping them to make decisions wherever possible.
Importantly, there are limits to the authority of an Attorney. They cannot use the Donor’s money to benefit themselves and there are strict rules over gifting and the sale of property. In addition, a lay Attorney cannot be paid for acting as an Attorney, they can only claim expenses for things they must do to carry out their role, for example travel costs.
Discovering the Abuse
Despite clear guidance on the use of Powers of Attorney, financial abuse by those appointed still takes place and wrongdoing often only comes to light after an incapacitated person has died.
Friends and family members may be alerted to financial abuse when sorting through a loved one’s affairs, noticing unusual transactions, a change in shopping habits and sudden, large gifts to the Attorney detailed in the deceased’s bank statements or documents showing unpaid care fees, despite the deceased having the funds.
During the probate process, Personal Representatives (Executors/Administrators) are required to examine bank statements of the deceased for inheritance tax purposes and sadly, this can be when financial abuse is uncovered.
What Steps can be Taken if you Suspect Misuse of Funds
If you suspect misuse of funds during the Donor’s lifetime, practical steps to take include:
- Gathering evidence- for example, bank statements, witness statements and correspondence.
- Reporting the suspected abuse to the Office of the Public Guardian (OPG).
- Reporting the suspected abuse to the Police.
If issues surrounding an Attorney comes to light after the Donor has passed away, then you can still report matters to the Police, but the role of the OPG comes to an end once the individual has died. You therefore may be in a position when you need to consider the position on behalf of the individual’s estate to recoup money that should have been held by the Donor at the date of their death. This may well involve bringing a claim against the Attorney for misappropriated funds.
How We Can Help
Suspecting or discovering that a loved one has been financially exploited by an Attorney can be a heartbreaking and stressful experience. It is important to know that, in these situations, the Attorney’s actions constitute a legal breach of duty, and there are practical steps and legal options available to hold the Attorney to account and recover Estate assets.
Howes Percival’s expert Contentious Trusts and Probate Team has extensive experience in dealing with Lasting Power of Attorney misuse and are on hand to answer any questions you may have. For further information or to discuss how we can assist you, please contact a member of the Team.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
