abuse of lasting power of attorney

Mojisola

securityguy wrote: »

I do struggle to see quite what it is that you are after.

Your cousin took money from your aunt to which she may or may not have been entitled, but there was no PoA in force and there's very little chance that a legally sustainable case could be made.

You've now reported that to the LA as deprivation of assets. Deprivation of Assets is not an offence for the person who ends up with them, it's an offence (or, at least, grounds for cessation of benefit) for the person who gave them away. So if Alice signs her house over to Bob, and then goes into residential case, the LA can treat Alice as though she still has the asset (or the income from it) and assess her appropriately. They cannot, however, under any circumstances bring an action against Bob, ask for the house back, or anything else: he received perfectly good title. The issue is not that the transfer was invalid, rather that Alice should not have made it.

I think LA can take legal action to reclaim money or assets which were given away. Not many do so at the moment but things are changing all the time as budgets are tightened. I suppose they would weigh up the costs of going to court against the amount they could reclaim.

securityguy

Actually, we're both wrong, but it's worth getting the facts. I was wrong to say that there's nothing the LA can do, but there is nothing that the LA can do in this case.

The legislation is Health And Social Services And Social Security Adjudications Act 1983, S.21.

The LA can recover the cost of accommodation that was paid by the LA but should have been paid by the donor, from the person to whom the asset was transferred, if the asset was transferred no more than six months before the donor went into care. After six months, the authority can treat the donor as still having the asset, but can't recover it.

However, and it pretty much depth-charges the OP's position, the test is (1)(b) "knowingly and with the intention of avoiding charges for the accommodation".

Under the circumstances the OP has outlined, there's no hope of getting over that test. The scenario is "elderly person coerced into handing money over which might otherwise have paid for care", not the legislation's "elderly person hands over asset with the deliberate intent of frustrating a means test". There's not the slightest suggestion that the OP's aunt handed money over to the OP's cousin with the intent of hiding it from the council, and without that, the whole section falls.

Mojisola

securityguy wrote: »

Actually, we're both wrong, but it's worth getting the facts. I was wrong to say that there's nothing the LA can do, but there is nothing that the LA can do in this case.

The legislation is Health And Social Services And Social Security Adjudications Act 1983, S.21.

I had vague memories of a BBC programme asking all the councils what they did, using the FOI act. The vast majority had never used the powers.

securityguy

Money Box, Saturday just gone.

Mojisola

securityguy wrote: »

Money Box, Saturday just gone.

No, didn't hear that. It was some time ago.

joan_lancaster

I beg to differ that it's best to give up but thank you for your interest and support. My main concern is not my aunt's happiness as none of this makes any difference to her now. My problem is being unable to stand back and allow fraud, theft and financial abuse to continue without doing everything in my power to stop it. I would be letting myself down and also letting my aunt down.
I do however think it is very complex and difficult to follow all the details on this forum, although it has been interesting and I think I've learned a lot, not least that this is not going to be straightforward.
However for anyone interested I have just had the most enlightening conversation I have had regarding this matter with an advisor at Age UK. She was extremely expert at her job.
She thought it very odd that the OPG won't investigate and advised that I contact the PHSO (Parliamentary and Health Service Ombudsman). Also to go to the Court of Protection when the social services have done their assessment to attempt to have power of attorney overturned, if indeed this is not done by them.
She was very confident though that the local authority will be able to trace monies spent by my cousin and that they will take relevant action against my cousin.
Thanks all for replies. It's reassuring to know people out there care enough to bother.
I have work to do.......

Mojisola

It would be good to hear the outcome.

joan_lancaster

Certainly I will let you know the outcome. Thanks again.

madbadrob

Again though there is no evidence of theft that you have provided. Its all supposition and until such time as the SS have carried out an investigation you will never know for sure. I agree what you have outlined suggests it.

You say that your aunts happiness is what concerns you but standing back and allowing a fraud to be committed.

At the end of the day who will benefit if a fraud is proven? Your aunt maybe with better care and a choice of care home. Then the beneficiaries of the will. I guess from your posts that if this hasnt been changed one of those to benefit will be your mother. I therefore wonder if some of your concern is more based on the thought of your mother losing money which if she wasnt to spend it would come to you.

Yes that is being cynical but its the impression I am not getting after your last post

Rob

BobQ

securityguy wrote: »

The legislation is Health And Social Services And Social Security Adjudications Act 1983, S.21.

The LA can recover the cost of accommodation that was paid by the LA but should have been paid by the donor, from the person to whom the asset was transferred, if the asset was transferred no more than six months before the donor went into care. After six months, the authority can treat the donor as still having the asset, but can't recover it.

However, and it pretty much depth-charges the OP's position, the test is (1)(b) "knowingly and with the intention of avoiding charges for the accommodation".

Under the circumstances the OP has outlined, there's no hope of getting over that test. The scenario is "elderly person coerced into handing money over which might otherwise have paid for care", not the legislation's "elderly person hands over asset with the deliberate intent of frustrating a means test". There's not the slightest suggestion that the OP's aunt handed money over to the OP's cousin with the intent of hiding it from the council, and without that, the whole section falls.

I can see what you are saying, but if the elderly person was coerced then surely that is theft. If she was not coerced then it is deprivation of assets. The fact that someone is selling her assets under a POA means she is responsible for the action.

If it is deliberate deprivation of assets the local authority does have a power of recovery particularly if a house is being sold now. This power is against the receiver of the assets.

http://www.stennett-stennett.co.uk/our-services/long-term-care-fees/paying-for-care-and-deprivation-of-capital

I can see a local authority saying its not worth the legal costs of recovering say £20K gifted a few years ago, but a whole house given away today?

Either way I can appreciate the OPs frustration at the lack of justice here. Its a national disgrace that people are receiving free care from the state while their relatives enjoy vast sums that should be used to save the taxpayer money and provide the beneficial owner of those assets with a good standard of care.