In yet another worrying case, last week the Court of Protection has in the case of Re CMW revoked the appointment of an only child as an attorney to deal with his mother’s property and financial affairs.
In his judgement, Senior Judge Lush said of the attorney:
“He has broken virtually every rule in the book and, having it exhausted his mothers funds in order to meet his life’s requirements at that time, he blithely expects the tax payers of Surrey to pick up the tab to meet his mother’s care needs now.”
The son had been appointed as his mother’s attorney under a lasting power of attorney and took over the management of her affairs following her having lost the capacity to do so for herself. He then arranged to sell her home and from the proceeds of sale and his mother’s savings transferred over £297,000 to his own accounts and used it for his own benefit.
In his defence, the son argued that had his mother had capacity that she would have agreed with his actions and that in any event the payments were to repay loans that he had made to her. He argued that as a result of his mother’s savings having been depleted that the local authority should in fact increase the amount that it contributed towards her care.
The case came to the attention of the Court through the Office of the Public Guardian as result of concerns raised by the local authority over what it saw to be a deliberate deprivation of assets to put the mother in a position to claim financial assistance with her care costs.
This is unfortunately yet another in a seemingly increasing string of cases where those trusted by the elderly have abused their position of trust for their own financial gain. In this case, one of the son’s arguments was that as he was his mother’s only son and as he understood it, the only beneficiary of her Will that he would have inherited the funds following her death in any event. He was quite clearly prepared to overlook the fact that his mother had ongoing needs to fund her care during her lifetime.
The case illustrates the fact that all too often it is those that are closest to the elderly and incapacitated who are most trusted by them who then go on to abuse that trust.
Once again the need to carefully consider who should be appointed to the role of an attorney is highlighted. There are various ways in which an attorney’s powers can be restricted or for example to ensure that an attorney cannot act independently by appointing a second attorney to act jointly with them. These and other issues such as carefully outlining how an attorney is to make decisions in a guidance statement are important aspects to the process of preparing a lasting power of attorney. All too often, lasting powers of attorney are treated as a formality and something of a form filling exercise. In fact careful thought should be given to the choice of attorneys, the extent of their powers and the guidance which is to be given to them, to help minimise the risk of abuse by the attorneys later on.
Ian Newcombe is a partner in the private client team based at the Exeter office. If you would like to contact the team then please call 01392 210700 or email private.client.exeter@stephens-scown.co.uk.