There are many stories and articles in the general press, on radio and television that with the growing elderly population, living longer due to better diet and healthcare, conditions such as dementia and Alzheimer’s disease are an increasing worry as we age. Increasing numbers of people are being asked/appointed to act as attorneys/deputies to look after the interests of those no longer able to look after themselves – often with no experience and/or understanding of the role. The growing prevalence of financial abuse cases being investigated by the Office of the Public Guardian and ultimately heard by the Court of Protection demonstrate a clear lack of understanding or appreciation of the powers and responsibilities that an attorney or deputy has when dealing with a vulnerable person’s assets.
Ann-Marie Aston, Associate Solicitor with the Wilkes Partnership LLP, who specialises in Court of Protection law and is a member of the panel of Court of Protection deputies, looks at where Attorneys and Deputies can fall foul of the Mental Capacity Act 2005 when dealing with a vulnerable person’s finances.
As part of any prudent estate planning exercise and making a will, a Lasting Power of Attorney should be put in place to ensure that our affairs can be properly managed should we succumb to a disease such as dementia or mental illness which can strike at any age. Since the Mental Capacity Act 2005 it is also possible to appoint an attorney to make health and welfare decisions as well as those concerning our money and property.
For the vast majority of cases, this ensures the best outcome for those who do go on to suffer with a condition where their mental capacity is affected. However, there can be a misconception by attorneys or deputies that once they are in control of the donor’s finances they can “do what they like” in the words of Senior Judge Lush in the case of Re Buckley (2013). There are a number of cases highlighting this:
In Re Buckley itself the attorney as well as paying herself some £43,000 from her aunt’s money considered that investing a further £87,000 in her own reptile breeding business was a “prudent investment”
In the case of Re GM (2013) deputies were appointed and proceeded to gift to themselves well over £200,000 of their aunt’s money, clearly with little or no understanding or regard for their duties under the deputy order.
In the case of Re OW (2014) the attorney funded his own lifestyle from his mother’s funds whilst refusing to pay her care fees, again showing a complete disregard for the principles of the Mental Capacity Act 2005 and or acting in his mother’s best interests.
Ann-Marie comments, “In these and other cases, the Court takes no other view than what the attorneys/deputies have done is financial abuse. Ignorance of their responsibilities (or the law) is no defence. Furthermore, the large majority of financial abuse cases (although not exclusively) involve the donor’s children as the perpetrators. I have dealt with a number of cases where, particularly the children of the donor, look on the money under their control as their inheritance to have now”
Anyone appointed as either a deputy or an attorney must be clear that they owe a duty of care to the always act in the best interests of the donor/protected person. Even though they have the power to spend it, the donor/protected person’s money is not theirs. They must keep those monies separate from their own and always apply them exclusively for the benefit of the person to whom they belong. That may be spending those funds directly on the welfare of the individual (such as care home fees) or, where not all of the assets are required immediately, in making prudent investments to preserve those assets.
Where attorneys/deputies are unsure about what to do or about their duties and decision-making powers, they should always protect themselves from allegations and/or claims of financial misconduct by seeking professional advice, either from a specialist solicitor or an FSA regulated financial adviser. Where resources are limited, that will require careful husbandry of those assets.
If you are concerned about anything raised in this article or the actions of an attorney/deputy for someone you know, please contact Ann Marie on 0121 733 8000 or email her at [email protected]