Legal advice from Jennifer McGuinness, Civil Litigation Associate Solicitor based in Frodsham
Q: What can I do if I have concerns over a Lasting Power of Attorney?
A: A Lasting Power of Attorney (LPA) is a document that you make while you have full capacity to cover the risk that one day you will not. It enables you (the donor) to appoint people you trust, named as your Attorneys to manage your affairs and make decisions on your behalf in the event that you are unable to do so yourself, or with your permission while you have capacity. The Attorney plays a vital role in managing your affairs and safeguarding your interests.
Sadly, I am seeing more and more cases of financial abuse by Attorneys. It has been reported recently that the Office of the Public Guardian (OPG) made 1729 investigations into the actions of Attorneys and Deputies in 2017/18, an increase of 45% from the previous year.
The issues investigated were fraud or misuse of funds, failing to keep appropriate records and over-stepping the mark when making gifts on behalf of the LPA donor.
Where financial abuse is suspected, a number of options are available:
- If the donor still has capacity, they can revoke the LPA to remove the Attorney. If there has been financial loss this ought to be reported to the police as an offence may have been committed under the Fraud Act. The donor can look to recover assets through civil proceedings.
- If the donor has capacity but will not revoke the LPA, then the Court has the power and duty to protect vulnerable people. Usually the Local Authority would apply to the Court in these circumstances, seeking to obtain an interim injunction.
- If the donor of the LPA does not have capacity to revoke, then an interested party can apply to the OPG on their behalf. The OPG has various powers e.g. they can request information from the Attorneys, send a Court of Protection (COP) visitor, apply to COP to revoke LPA, apply to freeze accounts, place restrictions on property title and appoint a deputy to replace the attorney.
It ought to be noted that the OPG and COP involvement ends when the LPA donor or deputy has died. In that situation, the administrator or executor of the deceased’s estate can seek to recover losses.