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Tale of warning for attorneys who mismanage a person’s financial affairs

While, many attorneys who act for a loved one, are honest, transparent and wish to do the right thing; sadly there is growing evidence that financial abuse is on the rise by the very people we put in a position of trust.

Following the recent case of Mr Willis who was appointed as his mother’s attorney, it now seems that the police, the Crown Prosecution Service and the courts are more willing to investigate, prosecute and recover assets that have been taken through the misuse of a financial power of attorney.

In the case of Mr Willis, he had discovered that he was not a beneficiary under his mother’s will and on being appointed as his mother’s attorney he systematically took massive amounts of money from her estate and failed to pay her care fees. Following his conviction, the police followed up with a Proceeds of Crime Act order, which was granted to recover the assets he transferred to himself. The court unusually stated if he fails to hand over the money he will have his prison sentence increased.

This particular case is unusual in respect of the conviction, sentencing, and recovery of assets, but examples of financial abuse, mismanagement or simple mistakes made by an attorney are on the rise. Whether this is due to the increasing level of Lasting Powers of Attorney being created and thereby more cases are coming to light, it is hard to say. But one thing is common is the lack of understanding by the attorney of their role and the restrictions in law that are placed on them with self-dealing, conflict of interests, gifting and mixing of money without seeking prior authority from the Court of Protection.

The Office of the Public Guardian (OPG) oversees the registration of powers of attorney; however, they also have another role around safeguarding and investigation when there are concerns raised about an attorney. The OPG can either apply for the attorney to be removed or ask them to make an application to the Court of Protection to seek retrospective approval for gifting or use of the person’s money without authority.

Karon Walton, Head of Court of Protection at Hegarty Solicitors states:

“I have had many cases where attorneys have come to me due to an OPG investigation. Sometimes these investigations are unsubstantiated; however, some will require applications to be made to the court. Most cases are generally because the attorney lacked the knowledge of their role, rather than any deliberate intent for wrongdoing.”

Karon’s advice for anyone who is considering putting in place a Lasting Power of Attorney is that they seek independent specialist legal advice and understand what options they have. Careful consideration should be taken as to who they wish to appoint as an attorney and any potential restrictions and safeguards that can be incorporated into the document for their peace of mind.

In connection with an attorney who is appointed or about to be appointed; she advises that an attorney should take time to understand their role entirely, and if they are unsure then seek advice or guidance.

To obtain help and assistance with powers of attorney, to understand more about the role and restrictions of an attorney or to have specialised advice with the preparation of applications to the Court of Protection please contact Karon Walton on 01733 295557 or email on karon.walton@hegarty.co.uk 

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