Options if you suspect abuse of a power of attorney
With more people in the UK now living into their 80s and 90s, an increasing number of us are choosing to make a lasting power of attorney. This is a legal document under which we appoint someone we trust to make important decisions about our finances, and health and welfare, should we reach a point where we can no longer make these decisions for ourselves. The attorney(s) that you appoint must always act in your best interest.
However, each year there are a small number of cases where someone appointed as an attorney abuses their position of trust by making inappropriate decisions. If you are a relative or a co-attorney who is concerned that this may be happening, then it is vital that you take prompt legal advice to limit the potential damage that this may cause. As Jim McGarrity, Solicitor-Advocate explains:
‘The system for the supervision of powers of attorney includes a number of safeguards, and depending on the nature of your concerns, a lawyer may suggest that you contact the Office of the Public Guardian or that you refer your concerns to the Court of Protection.’
Where you suspect that your loved one may be in imminent danger, or that an attorney is guilty of theft, then you may also be advised to report your concerns to the police.
How we can help
We have extensive experience in helping family members to safeguard their relatives in the event of fraud or abuse by an attorney, including getting to the bottom of what an attorney has been up to since they were appointed. We also ensure that attorneys are forced to comply with their legal duties; or we can have an attorney removed from their post and replaced with someone else, where this is deemed to be the best and most appropriate course of action.
Our solicitors have a good track record in helping families who have been affected by attorney theft to recover any money or property that has been stolen.
The role of the Office of the Public Guardian
The Office of the Public Guardian is a government body, whose role is to monitor the activities of attorneys and court appointed deputies who have been given lawful control over someone else’s affairs. It is within their remit to investigate concerns of attorney abuse and to either address those concerns or refer them to another agency.
A report to the Office of the Public Guardian will generally be appropriate where you have minor to moderate concerns which can be easily remedied, for example by directing the attorney to take certain steps to address perceived shortcomings in their behaviour, and where there is nothing to suggest that your loved one may be in imminent personal danger or at risk from severe financial harm.
An attorney could be asked to explain why they have taken certain steps or made a certain decisions, and they could be asked to produce documents including bank account statements, property deeds and legal and medical papers.
Where the Office of the Public Guardian agree that an attorney’s behaviour falls below par, they can direct the attorney to take specific action to address the concerns that have been raised. In serious cases they can also ask the Court of Protection to intervene or make a referral to the police.
Most investigations are completed within 14 weeks, although there are some cases which take slightly longer.
The role of the Court of Protection (COP)
The Court of Protection exists to protect the interests of people who are unable to make decisions for themselves because they lack mental capacity. An application to this court will usually be appropriate where you have serious concerns about an attorney’s behaviour, and your lawyer thinks that it is necessary for an urgent application to be made to obtain an order which ensures that your loved one is not exposed to any further harm.
Examples of orders that this court is empowered to make, include:
- an order that freezes your loved one’s bank account(s), so that no further withdrawals can be made (or transactions authorised) without the court’s permission;
- directing an attorney to provide certain information, which may include details about their own financial situation where there is a suspicion that money or property belonging to your loved one may have been misappropriated;
- directing the production of medical reports, for example to gauge your loved one’s mental capacity and therefore their ability to make their own decisions;
- directing that the attorney should be removed from their post;
- directing the appointment of a replacement attorney or, where appropriate, a court appointed deputy who can carry out the same role; and
- an order which paves the way for the attorney to be sued in order to recover compensation in respect of any losses they have caused your loved one to sustain.
Need more information?
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.