Perils of choosing the wrong Attorney

6th November 2015

Perils of choosing the wrong Attorney

Nursing home

Powers of attorney are a useful means of ensuring that your affairs are properly managed if you lose the ability to do so yourself. However, the decision as to whom you choose to be your attorney is crucial; two recent cases from the Court of Protection highlight the perils of choosing the wrong person.

The first case was one in which a son was found by a judge to have abused his elderly mother’s trust. The 87-year-old mother had been prey to mental health problems for many years after she was widowed and was cared for in a nursing home. She had signed an Enduring Power of Attorney (EPA) which gave her son complete control over her money and property. However, an inquiry was launched by the Office of the Public Guardian (OPG) after the nursing home’s fees fell almost £30,000 into arrears.

Her home had been sold for almost £190,000, but the Court of Protection found that her callous and calculating son was more concerned for his inheritance than for her welfare. He had refused to pay for such basic comforts as toiletries and had charged more than £117,000 in out of pocket expenses to his mother’s account. He visited her rarely but had charged £400 for his time on each occasion he did so.

He had stated that his mother would die sooner rather than later and had both viewed and treated her money as his own. The Court found that he had flagrantly abused his position of trust. Charging his mother for his visits was nothing short of repugnant. The Court cancelled the EPA and appointed a professional lawyer to serve as the woman’s deputy in place of her son.

The second case involved a Lasting Power of Attorney (LPA). The attorney was found by the Court to lack even a basic knowledge of her fiduciary duties as an attorney following a history of making inappropriate purchases and failing to save the Donor’s surplus income for the future. The Court felt that the attorney was behaving in a way which would contravene the Donor’s best interests. They ordered the LPA to be revoked. Interestingly the Court decided that as the Donor expressed her views so strongly as to her choice of attorney whilst she had capacity, they would honour that wish and appoint the attorney as a Deputy under the Court of Protection so they could monitor, assist and support her in her duties.

The choice of your attorney is crucial, are your son and daughter really up to the challenge? Do they have the necessary time, knowledge and integrity to look after your affairs when you haven’t got the capacity to do so yourself? These recent cases highlight that if in doubt it is often wiser to choose a professional, rather than a family member, to do the job.

For more information on Powers of Attorney and the Court of Protection contact Emma Woollard on 01473 298109 or email [email protected]

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