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13 September 2012 | Comment | Article by Roman Kubiak TEP

The OPG and CoP have the power over LPA


A recent case highlights the powers of authorities to intervene when a Lasting Power of Attorney position is abused

Partner and head of the market leading Contested Wills, Trusts and Estates team, Roman Kubiak, looks at a recent Court of Protection decision to intervene where an attorney mismanaged finances, and also navigates through the confusing world of legal acronyms…

The recent Court of Protection (CoP) decision, In the matter of Harcourt (Public Guardian v A), highlights the powers the Office of the Public Guardian (OPG) and CoP have in revoking Lasting Powers of Attorneys (LPAs) in instances where attorneys mismanage a donor’s finances and wilfully obstruct the resulting investigations.

Find more information on our Contested Wills, Trusts & Estates department. Or if you want to discuss any issues raised in this article contact us today.

Mismanagement of donor finances

The case in question involved a daughter who had been appointed as attorney for her mother, Mrs Harcourt. During her time as her mother’s attorney, however, the following had taken place:

1. Mrs Harcourt’s care home fees had not been paid.

2. The daughter, as attorney, had been giving Mrs Harcourt very little ‘pocket money’.

3. Mrs Harcourt received a letter from Lloyds TSB confirming an apparent loan to her of £5,000.

4. Mrs Harcourt received similar letters from Capital One and M&S Money confirming credit card applications.

5. The daughter visited her mother very infrequently.

6. There were sums ‘unaccounted for’ from Mrs Harcourt’s accounts.

7. As well as transfers of money to various people, there had been frequent cash withdrawals.

The local council brought the above to the OPG’s attention who undertook an investigation pursuant to regulation 46 of the (takes a long breath) Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (SI 2007 No. 1253), presumably the LPAEPA&PGR2007 though that is perhaps an acronym too far!

In any event, the daughter, an auditor by trade, proved uncooperative and, as the OPG have no powers of enforcement, they applied to the CoP to revoke the LPA.Thankfully, the CoP has such powers under the Mental Capacity Act 2005 (MCA2005).

Fidiciary duties for attorneys

In exercising its powers, the CoP must act in the ‘best interests’ of the donor of the power, in this case Mrs Harcourt. In reaching their decision, the CoP referred both to the MCA2005 as well as to the common law of ‘agency’ which imposes fiduciary duties on attorneys, namely duties with which a person in a position of power and obligation over another must abide.The two such fiduciary duties which are, to a large extent, replicated in the MCA2005, and which applied in this case were:

1. the duty to provide accounts; and

2. the duty to produce all books and documents relating to the donor’s affairs.

In reaching his decision, Senior Judge Denzil Lush, whom *namedrop alert*, I have had the pleasure of meeting, first confirmed that Mrs Harcourt lacked capacity to deal with this matter herself. He went on to find that the daughter had deliberately obstructed any investigations and had not acted in her mother’s best interests and accordingly revoked the LPA. A deputy (a CoP appointed attorney) will be appointed in the daughter’s place.

This was the right decision in my view. However, it is easy to forget that the daughter’s actions potentially amounted to theft and fraud, both criminal activities though it is unlikely that the deputy will choose to prosecute.

As Senior Judge Lush rightly comments in his decision:

“Essentially, the Lasting Powers of Attorney scheme is based on trust and envisages minimal intervention by public authorities.”

However, where that trust is broken it is reassuring to know that the OPG and CoP can take action ASAP!

Find more information on our Contested Wills, Trusts & Estates department. Or if you want to discuss any issues raised in this article contact us today.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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