Abusing Lasting Power of Attorney
- AuthorNicola White
The last few months have demonstrated the importance of a Lasting Power of Attorney (LPA) for those who have been unable to leave their own homes or who have been concerned about dealing with their own affairs and have benefited from someone being able to act on their behalf. An LPA is a very useful document when in the right hands.
“an LPA does not give an attorney carte blanche
to make whatever decisions they wish for the donor”
However the power given in an LPA can be abused, either intentionally or maybe just because the Attorney does not understand exactly what can and can’t be done under the LPA. Many attorneys do not realise that there are actually rules about what they can and cannot do, and simply think that as long as they are acting in a way they believe the donor would be ok with, they are free to make whatever decisions they want. An LPA does not give an attorney carte blanche to make whatever decisions they wish for the donor. Some decisions require court approval. However, incorrect use of an LPA can be unintentional.
“abuse of an LPA can result in direct
financial difficulties for the donor”
There are a minority of attorneys who use the LPA as a means to personally profit from the donor. This can range from paying themselves for the assistance they give the donor to the deliberate transfer of the donor’s funds or property into their own names. It may be that the attorney is not thinking specifically of depriving the donor but rather feels that they are “owed” something by the donor for the work they do as attorney. Abuse of an LPA can result in direct financial difficulties for the donor, or can diminish the donor’s estate to the detriment of their beneficiaries after they pass away.
“the OPG can apply to court for an
LPA to be revoked if it is felt that the attorney
has breached the trust placed in them by the donor”
What do you do however if you have concerns that someone is not using their LPA correctly? This isn’t always straightforward as it can be difficult to obtain evidence of abuse of a power of attorney as often the person with the concerns does not have any right to access to the donor’s financial information. If the misuse of the LPA is as a result of an attorney genuinely not realising the extent of their decision making abilities, it would be hoped that an explanation of their role to them should be sufficient to bring about a change however for the unscrupulous attorney it may be necessary to report your concerns to the Office of the Public Guardian (OPG). The OPG can investigate concerns about the use of an LPA. This could involve interviewing the donor and attorney or asking the attorney to account for their use of the LPA. Ultimately the OPG can apply to court for an LPA to be revoked if it is felt that the attorney has breached the trust placed in them by the donor or an attorney can be ordered to make an application for retrospective permission in relation to action already taken.
“if you have concerns about the use of an LPA … you should seek legal advice”
If you have concerns about the use of an LPA or if, as an attorney, you are unsure about the scope of your powers, you should seek legal advice.
Here at Thornton Jones we have a highly skilled and experienced Private Client team who are able to help with the setting up of a Lasting Power of Attorney or, as detailed above, can help with the clarification of an attorney’s role or a reporting to the Office of the Public Guardian.
Call us at any of our three offices for a FREE consultation and to arrange an appointment.
Call our Wakefield office on 01924 290 029
Call our Garforth office on 0113 246 4423
Call our Ossett office on 01924 586 466