It is important that when a person appoints someone to act as their attorney under a Lasting Power of Attorney (LPA) they can be confident that their wishes will be carried out and that the attorney will perform their office diligently and competently.
The ‘long stop’ if this is not the case is that the Office of the Public Guardian (OPG) can remove an attorney whose standards of conduct fall seriously short of what is reasonably expected.
In a recent instance, a widow, who lived in a care home, appointed her daughter to act as her attorney under an LPA which was registered with the OPG in August 2009.
The care home proprietor contacted the vulnerable adults team at the local council when the woman’s care home fees started to run into arrears and it became clear that loans and credit card applications had been made in her name. This led in due course to an investigation being commenced by the OPG and, shortly thereafter, the OPG applied to the Court of Protection for an order to freeze the woman’s accounts and to suspend the LPA, serving notice on the attorney only after the accounts had been frozen. Among other issues was the regular withdrawal of substantial amounts of cash from the woman’s account by the attorney.
The OPG then requested appropriate accounts and documentation to be produced by the attorney, which was ordered by the Court. Over several months, this was not done. The issue ended up in front of the Court.
The Court was satisfied that the widow lacked the mental capacity to give directions to the attorney to ensure that she could be satisfied that her affairs were being properly dealt with: the Court was therefore entitled to ask for accounts and supporting documentation.
The attorney was by profession an auditor, which led the court to conclude that ‘it would be reasonable to expect a higher standard of care from her in terms of an awareness of her fiduciary duties and the need for exactitude in presenting accounts and promptness in delivering them’.
In view of what the Court saw as the deliberate attempt by the attorney to obstruct the investigation into her mother’s financial affairs by the OPG and her failure to comply with an order of the Court, the LPA was revoked.
If you are concerned that an attorney acting under a power of attorney may be abusing their powers and/or acting in their own interest rather than that of the person appointing them, contact us for advice. A professional person appointed under a power of attorney will also be expected to adhere to somewhat higher standards than a non-professional.