It is a sad, but frequent truth that Attorney's and Deputies often act outside of their responsibilities when dealing with someone else's money. This can include excessive and unwarranted gifting, something that if it was their own money they would unlikely be doing. Clapham & Collinge recently published an article regarding safeguarding our loved ones, which mirrored this sentiment.
If granted as an Attorney under a property and finances document, the nominated attorney has control over your financial affairs if you become mentally incapable. You can decide to have one or more Attorney's. If you have more than one Attorney, it can either be arranged that they can only act jointly – meaning they must all agree before action is taken, or jointly and severely - meaning one can make a decision without the need for any of the other Attorney's approving it.
In September 2017, the Telegraph reported on the case of Lee and John Proctor. They had appointed their sons to act jointly and severally. John was father to both sons - Seth and Robert, however Lee was only mother Seth and this lead to their finances being abused. Seth took the lead on 'managing' the couple's financial affairs and stole £125,000 between May 2013 and March 2015. He was able to do so using the cloak of the Power of Attorney, and alarm bells were only raised when care home bills continued to go unpaid.
The Court of Protection have made it very clear that Attorney's and Deputies have limited authority regarding making gifts, and will investigate cases where they believe the finances of the Donor are not being managed effectively. This is because the roles and responsibilities of Attorney's and Deputies alike are regulated by the Mental Capacity Act 2005. Effectively what this means is that Attorney's must act in the Donor's best interests at all times, exercising reasonable skills and care when investing assets. We have broken down some of the key things attorneys need to consider before making decisions on behalf of the Donor.
Examples
- Mrs Smith has lost capacity and her daughter Miss Smith has been appointed her Attorney.
Mrs Smith moves in with Miss Smith.
Miss Smith uses Mrs Smith's finances to pay the mortgage of her property, all of the utilities and herself a 'care fee' wage for looking after her mother in excess of £2000 a month.
This would unlikely be in Mrs Smith's best interests. Her finances should be used to safeguard her mental wellbeing, using them to increase her quality of life, not to unnecessarily benefit those around her to her detriment.
- Joe is a Deputy for his uncle Mr Bloggs.
Joe sold Mr Bloggs' property initially to pay for care home fees.
Joe has got into debt and has since been using the sale proceeds to transfer himself money from Mr Bloggs' account to his own.
Whilst he claims his uncle would have done this had he had capacity, this would likely be seen as excessive gifting which is not in Mr Bloggs' best interest.
These hypothetical examples highlight the issues that can arise if the wrong Attorney is appointed. It is important you safeguard your finances and chose Attorney's that will act in your best interests.
At Clapham & Collinge we specialise in this area and will assist you with creating your Lasting Power of Attorney to ensure you receive proper advice and protect yourself. If you are an Attorney or Deputy we can also advise you on if you are acting correctly, and what your role entails to guarantee you protect the person you are acting for.
To find out more or discuss your individual requirements in further detail, our dedicated Lasting Power of Attorney and Deputyship solicitors will be delighted to help. Contact us today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham and Sheringham offices.
