The number of people in England and Wales registering a Lasting Power of Attorney (LPA) with The Office of the Public Guardian (OPG) has significantly increased, with currently over 3 million registered documents on the register. This continues to rise with the ageing population, awareness of dementia and age-related conditions that affect mental capacity.
However, there is evidence that shows that five prosecutions a week are being brought against people who have been appointed attorneys under an LPA for allegedly abusing their powers.
The OPG investigate 2000 cases a year with allegations of financial and physical abuse. Half of these cases triggered further action and a quarter of them resulted in court prosecutions, most of which were successful.
Alan Eccles (The Public Guardian) recently stated in the Times “The vast majority of concerns involve some sort of financial abuse or neglect”.
The main cases that the OPG prosecute involve financial negligence. It might not always be a criminal offence; it could be that they have unknowingly acted wrongly.
Taking on the role of an attorney may appear to be straightforward, but quite often there are complexities around the law when making decisions for another person. Generally, the appointed attorney is a family member and perhaps may not have much experience in dealing with financial affairs or understand their fiduciary duties. When taking on the role of an attorney, it could also lead to potential conflicts of interest between their own affairs and that of the person for whom they are acting.
A fiduciary duty arises where an individual has placed another in the utmost trust and confidence to manage and protect property or money. An attorney must not take advantage of their position, nor should they put themselves in a situation where their personal interests conflict with their duties. For example, they should not buy a property that they are selling for the person they have been appointed to represent.
An attorney cannot use their position for any personal benefit or gain. Any gifting of items or money (except in very limited circumstances) would be in breach of the Mental Capacity Act 2005.
Karon Walton, Head of Court of Protection at Hegarty Solicitors says “If you have done something that you now feel you didn’t have authority to do, then please contact us, and we can advise you of the best way to rectify the situation”.