How to prevent a loved one entrusting their affairs to the wrong person

27 Nov 2020 | Katie de Swarte
man looking at the clouds

Table of Contents

Record numbers of us entrust our finances to loved ones, with over 800,000 Lasting Powers of Attorney (LPA) registered yearly, according to the Office of the Public Guardian (OPG). We should all want our relatives to have someone who can make decisions for them if they cannot manage their own affairs, but what if they make a poor choice?

Power of Attorney Solicitors at London law firm Osbornes Law often hears from worried relatives concerned that a family member has chosen the wrong person to take care of their finances and fear that their affairs will be mishandled or worse, they will be taken advantage of.

Katie de Swarte, a lawyer specialising in will, trust and LPA disputes at Osbornes Law, says: “We regularly see family members who are concerned about a relation who has registered an LPA naming another family member who they consider either untrustworthy or unable to handle their parent’s affairs effectively.

“The most common cases are where one sibling believes another is acting inappropriately, perhaps because they have noticed spending on unnecessary items or there are poor or questionable decisions being made, such as wanting to sell or transfer the family home when that is unlikely to be in the best interests of the parent.

“Occasionally, we see someone outside the family, a cleaner or perhaps a carer being appointed as an attorney, and the family becomes concerned their relative is being taken advantage of.”

A financial and property LPA allows the attorney to buy or sell property, manage the bank, building society and other financial accounts, and handle welfare benefits or tax credits, tax affairs, debts and legal proceedings. It can come into force once the individual lacks capacity or earlier if they want help with day to day running of their affairs, as long as they consent.

When an LPA is registered as a safeguarding measure, up to five people, usually family members, who will be informed of the application, can be named.  This is an opportunity to raise objections within 28 days with the OPG and Court of Protection.  If the objection has merit, they can stop the registration of the LPA or arrange a hearing to discuss objections.

Those who choose not to inform anyone about their LPA will need two certificate providers (this can be a friend or a colleague who has known them for at least two years or a professional such as a GP or solicitor) to confirm they understand the purpose of the LPA and that they are not being pressurised. In this situation, relatives may not become aware that their loved one has made an LPA.

Katie explains, “Family members should be notified unless there is a good reason not to do so, but this doesn’t always happen, particularly if forms are completed without legal advice.”

Once an LPA is registered, it cannot be revoked by anyone but the individual who made it or by the court. At this stage, relatives concerned about an attorney will need to raise this with the OPG.

Katie says, “Worried relatives can report the attorney to the OPG, who will investigate. They may conclude there is no evidence to suggest inappropriate conduct, but if they agree, they can provide written instructions to the attorneys to follow, failing which further action could be taken, or take interim action such as freezing bank accounts and requesting the attorney account for their actions.  Ultimately the OPG can apply to the Court of Protection to revoke the LPA or put in place any other order they deem appropriate.”

Relatives still unhappy with these investigations’ outcomes can go to the Court of Protection, which will want to see evidence supporting any claims made.

The Court then has the power to appoint a deputy to take over from the attorney. Deputies are subject to a higher level of supervision than attorneys under an LPA and will be required to complete an annual report to the OPG to check that decisions are being made in the best interests of the individual.

Katie recommends attempting to resolve the situation without involving the courts where possible.

She says, “Disputes involving family members can be very emotional, especially where family members vent longstanding grievances and relatives are falling out with each other. The situation can escalate, but it’s important to recognise that disputes can be costly, and if the court is forced to appoint a deputy, they may choose an independent deputy, such as a solicitor.

“Where there are capacity issues or families at loggerheads, a solicitor will likely become involved to act for the donor, whose costs will also have to be met.  Efforts should always be made to try and agree to matters which can avoid court proceedings altogether or in the least shorten them.”

Katie recently advised on a case where there were concerns about the attorney, and as a result, the man concerned revoked his LPA and made a new one. When notified, however, the old attorney objected on the grounds that the man lacked capacity.

Katie explains, “This resulted in Court of Protection proceedings to decide whether a Deputyship Order should be made. It was a really difficult time for the family and for the donor himself, who suffers from dementia. The priority was to act in his best interests.”

If you would like to speak to a Wills, Probate and Disputed Estates team member at Osbornes Law, call 0207 485 8811 or complete an online enquiry form.

A selection of publications this story reached as follows;

Share this article


Contact us today

For a free initial conversation call 020 7485 8811

Email us Send us an email and we’ll get back to you

    More from KatieVIEW ALL

    1. Forged will pic

      Forged Wills

      If the contents of a will comes as a surprise, then one of the things to consider is whether the...

      Read more
    2. Deed of variation to a will

      Deed of Variation: Making a Change to an...

      What is a deed of variation? A deed of variation is a legal document which can be used to alter...

      Read more
    3. international map and money

      Will Dispute Case Law

      New Births And New Relationships? Review Your Will To Avoid A Dispute You’d imagine a wealthy businessman with assets...

      Read more
    4. older couple

      Of Bad Character: Undue Influence Claim Succeeds

      Naidoo v Barton: undue influence and the risks of mutual wills Can someone’s bad character be used to prove...

      Read more
    5. money in different currencies

      Making an International Will: Case Study

      Making an International Will If you own assets in more than one country, it’s important to make a robust...

      Read more
    6. Woman signing document

      Inheritance Claims CFA Success Fee Judgment

      The Court of Appeal upholds the recoverability of CFA success fees in 1975 Act claims. An individual who claims reasonable provision...

      Read more
    7. scrap metal

      Evidence Needed When Contesting A Will

      ‘Scrap King’ Multi-million Inheritance Dispute Confirms the High Standard of Evidence Needed to Contest a Will   Gary Goodwin, son of...

      Read more
    8. inheritance tax form

      Dispute Surrounding Interpretation of Will

      The ‘nil rate band’ offers an incentive to testators to make their will in a tax-efficient manner, maximising the amount...

      Read more
    9. fraud file

      Handwriting Expert Witness Concludes Will Forgery

      Successful contesting a will claim following testimony of handwriting expert It’s not unheard of for an individual to forge...

      Read more
    10. couple holding hands

      Understanding Testamentary Capacity

      What is testamentary capacity? Testamentary capacity refers to a person’s legal and mental ability to create a valid will....

      Read more
    11. toy houses on coins

      Unsuccessful Inheritance Act Claim

      The case of Shearer v Shearer The recent reported case of Shearer v Shearer highlights that adult children cannot expect...

      Read more
    12. two ladies talking

      Mutual Wills

      The High Court’s decision in the recent case of Legg and Burton v Burton [2017] has highlighted the issues surrounding...

      Read more