abuse of lasting power of attorney

joan_lancaster

Thank you. Yes that is correct and what I thought too.

madbadrob

My bad I had missed that point which negates all I had said re not benefiting.

My arguments re how they may try and get around this still stand even if there is now less of an argument for that. I would still contact social services and the council as well.

Police wont get involved because it is technically a civil matter until such time as the OPG decide there is fraud taking place.

Rob

joan_lancaster

Oh social services have been informed and the council and anyone else I can think of. Have just this minute heard from OPG after they have talked with social services (who have been to see my cousin). Apparently because all of the spending took place prior to registration of the LPA and the social worker cannot find any evidence of spending since then the OPG will not (cannot) get involved. Really they say the only way they have jurisdiction is if any evidence of spending SINCE registration of LPA (which was only a couple of weeks ago). Over to the police then I suppose.

RAS

So when did the donor become unable to manage her own affairs? How long between that date and the date when the attorney applied for the LPA to be registered.

And personally I find this bonkers; we had a delay in registering the LPA and the PGO would not agree that I could apply for PP to improve the value of the estate until the LPA was registered.

joan_lancaster

Well I must say I find it bonkers too.
The donor became unable to manage her own affairs just over a year ago. 11 months between then and the signing of the LPA. Presumably my cousin was a signatory on aunt's bank account before the LPA signed which is how she got hold of the money to renovate her mother's house(aunt may have had more than one account and likely main one abroad).
What I am very confused about at the moment is if my aunt signed the LPA whilst not having mental capacity to do so, and it was supposedly signed by a 'professional' (according to OPG) and I have a very good witness (another cousin) to say that my aunt was in no way lucid at that time, who can I turn to who will investigate this? OPG not interested, police not interested. Social services are aware and local authority paying for nursing home but nobody is doing anything. Would a solicitor be useful at this point?
ps RAS sorry what is PP and PGO?
Thanks for replies.

RAS

planning permission so we could maximise value of property before sale.

Public Guardian's Office

troubleinparadise

The signing of an LPA can seem a little of a grey area; it seems that as long as the donor "understands" at that moment of signing what they are signing, it is acceptable; that a day later they might not is neither here nor there.

And dementia is not black and white; with fluctuating cognition or memory, it can be difficult to define when lucidity or capacity has been lost completely.

We had a solicitor involved in drawing up the LPA for my mother for precisely this reason, so that there would be no comeback later. But that costs considerably more, and it isn't always desired nor necessary.

So I'm afraid that your angle of loss of capacity at the moment of signing it might be hard to prove. My mum struggled with managing her affairs (keeping order, paying bills, writing cheques legibly or getting her PIN number right within 3 attempts) but was able to understand what the LPA was about.

But the fact that her attorney is using her money to go way beyond maintenance or repair of the house (a very loose definition of acting in your aunt's best interests), indeed one might suggest squandering her money when it should be conservatively managed), and that the fees are being paid when your aunt has her own property sounds odd.

There may be the case that your cousin is viewed as aunt's carer and living in the house, in which case the house would be disregarded when it comes to a financial assessment, but spending large sums on improvements doesn't tally with minimal cash assets and falling below the £23,250 threshold for funding. But again, if your aunt had no anticipation of needing care prior to this time (eg no diagnosis of a progressively declining illness) then a financial assessment might not go back further into the realms of deprivation of assets.

madbadrob

So are we to believe the money was taken before the LPA was approved?

Rob

joan_lancaster

Yes the money was taken before the LPA was signed, in the year running up to that (and is still being taken).
I would have thought that the financial assessment by the local authority, who are now paying for the nursing home, would have been thorough and taken into account the £200,000 spent on the renovations. It seems they haven't looked into it. Whether it's complicated by different back accounts...
I realise that it is going to be difficult to prove that my aunt wasn't lucid at the time of signing. However my cousin's sister has told me that she saw my aunt regularly throughout this year and never once had a sensible conversation with her. I suppose what amounts to 'lucid' to one doesn't to another.
Another anomaly is that whoever was the witness had to have known my aunt for 2 years (I believe) and she hasn't been in the country for that long. Would this apply to a gp or solicitor also?

securityguy

"Yes the money was taken before the LPA was signed, in the year running up to that (and is still being taken). "

So it's highly unlikely anyone has a leg to stand on. There was a bank account. It had some money in it. Two people were signatories on it, and one of them spent the money on something. If you don't want people spending your money, don't have a joint account with them.

To rant for a moment, this is the problem with all these informal things people do because they won't draw up powers of attorney. If you have a PoA with your (usually) child as attorney, then there is some protection from the OPG/COP. It's not great, and they're not going to roar up in a panda car because your daughter slipped an extra half bottle of scotch for themselves into your shopping. But being an attorney does have legal ramifications, there are constraints on what can be done with the money (you're an attorney operating someone else's affairs on their behalf, and it's quite clear that the money and other assets aren't yours) and you are supposed to keep accounts. But if you either officially make someone else a party to a joint account or, worse, you unofficially give them your PIN, you have essentially no protection. They can say that you said "help yourself", or agreed to split the money now as you'll be getting it after they die anyway, or offered to pay you for looking after them, or had paid in some of the money yourself as it was a joint account, and unless the sums of money make it into the Brinks Mat job and it looks like money laundering, the police are not going to get out of bed.

A power of attorney does not permit other people to take all your money, and provides some (not a lot, but some) comeback if they do.

A joint bank account is precisely that (why do you think joint accounts don't form part of the estate when people die?) and it allows the other party to empty it with essentially no controls.

"I would have thought that the financial assessment by the local authority, who are now paying for the nursing home, would have been thorough"

Why? They just take the facts that are in front of them. They don't perform a forensic audit. Someone might report to them deprivation of assets, or they might get wind of it some other way, but they don't have the authority, resources, skills or interest in performing a forensic audit prior to paying care fees.

"witness had to have known my aunt for 2 years (I believe) and she hasn't been in the country for that long. Would this apply to a gp or solicitor also?"


No. From the leaflet, my emphasis:

They must have known you well for at least two years, or have relevant professional skills to enable them to confirm that you understand the significance of your lasting power of attorney (for example, your GP or solicitor).