A son who charged his elderly and incapable mother £400 a day to visit her and act as her Attorney has been removed by the Court of Protection.
The son – a professionally qualified consultant for an accountancy practice – was the only child and sole Attorney of his mother and took control over her financial affairs in 2004. The Office of the Public Guardian (OPG), the organisation which supervises Deputies and Attorneys, became concerned that £29,000 of mum's care home fees was unpaid, notwithstanding the sale of her house for £189,000, and were worried where the money had gone. The OPG investigated matters further, resulting in an application to the Court of Protection to remove the son as an Attorney and freeze the bank account he operated on mum's behalf. The case was heard by Senior Judge Lush on 13th October 2015.
In his witness statement the son confirmed that he rarely visited his mum, but when he did so, he imposed a charge on her for his time of £400 per day, with his total out-of-pocket expenses charged to mum totalling £117,289.45.
He also failed to provide mum with any money for her personal care as he didn't think the care home should charge for toiletries, and refused to pay on her behalf for her hair to be tinted.
The son justified his approach by saying that he was the sole beneficiary of his mum's estate and therefore, what did it matter what he took from mum during her lifetime as it would all come to him in the end anyway?
Senior Judge Lush took a dim view, saying that one would be hard pressed to find a more callous and calculating attorney who had so flagrantly abused his position of trust.
He confirmed that the amount of out of pocket expenses claimed were excessive – especially given there was no provision for a charging clause in the Enduring Power of Attorney - and that it was "morally repugnant" for the son to have charged his mother for visits.
Senior Judge Lush removed the son as an Attorney, pointing out that the appointment of a replacement panel Deputy would ensure that mum's interests (rather than the son's inheritance) would be prioritised for the first time in eleven years.
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Lin Whitehead is a member of the OPG Panel of Professional Deputies and is often referred cases of this type, where Attorneys have overreached their authority. She commented, "Senior Judge Lush must get exasperated dealing with cases like this on a daily basis where Attorneys or Deputies put their own interests and potential inheritances in preference to those of the person they are representing. So often people consider they have an entitlement to an inheritance and end up acting contrary to someone's best interests, and therefore in breach of the Mental Capacity Act. The Code of Practice to the Act is unequivocal when describing an Attorney's fiduciary duty: "a fiduciary duty means Attorneys must not take advantage of their position, nor should they put themselves in a position where their personal interests conflict with their duties. Decisions should always benefit the Donor and not the Attorney."
If you have any concerns regarding how to manage someone's affairs as an Attorney or Deputy, please contact Lin Whitehead directly on 01603 693572 or email firstname.lastname@example.org
(Written by Lin Whitehead, credit to Ian Wade, Clapham & Collinge)