Lasting Powers of Attorney (LPAs) were brought in by the Government in 2005 to replace Enduring Powers of Attorney (EPAs). Both LPAs and EPAs are intended to allow a person or persons to assist someone else in carrying out out and/or making decisions or, where capacity has been lost entirely, to make decisions on their behalf and to carry these out.
The majority of LPAs relate to Property & Financial Affairs. As the name suggests these deal with money and property, such as a home, cars and other chattels.
During the trial of Ian Stewart, the man accused of the murder of author Helen Bailey, it was revealed that he had been granted a Power of Attorney to deal with his late partner’s affairs. He had been appointed, together with Ms Bailey’s brother, although there is no accusation of any wrong-doing on the latter’s part.
As with all Powers of Attorney, the intention was that they would act on behalf of Ms Bailey should she ever become to unfit to administer her own affairs.
On the day she went missing Mr Stewart, Ms Bailey’s fiancé, kept and appointment with her solicitor about the sale of a flat she owned. Mr Stewart stated Ms Bailey was too unwell to go herself. At the meeting he asked whether or not the sale of her flat could go ahead on his say-so.
After Ms Bailey had been missing for some time, Mr Stewart tried to keep the sale going. Quite rightly, the solicitor dealing with the matter refused under their professional obligations to their client, Ms Bailey. The trial of Mr Bailey continues.
Of course, this is a very extreme example, but it is not uncommon unfortunately for people to discover that Attorneys are either maliciously carrying out actions such as removing money from bank accounts or, as in this case, selling property, either against the wishes of, or without the knowledge of, the person granting them the power.
When this happens it is possible to have a person removed as an Attorney. The Office of the Public Guardian (OPG) oversees the actions of Attorneys and any concerns should be raised with them. However, at the same time consideration needs to be given to the question of who should or could take over the role of Attorney. Therefore it is often a sensible precaution to consult with a solicitor who has knowledge and experience of the Court of Protection before or at the same time as raising any concerns.
Sometimes however the actions of an Attorney are not malicious and it may simply be that they were unsure of what to do or they have not kept accurate records so they cannot track what they have or have not done. They may also incorrectly mix the Donor’s money with their own. In that case, again this should potentially be reported but it may be that someone needs to act with them, or advice is required from the Office of the Public Guardian as to how they can remedy the situation and carry on in the future.
If you have any queries or questions about Lasting Powers of Attorney or dealing with the Court of Protection in relation to fraud by an Attorney, or you are an Attorney who requires assistance, please contact James Trescothick-Martin in our Private Client Team.