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Fulfilling your responsibilities as an Attorney

My mother appointed my brother as her attorney under a property and financial affairs Lasting Power of Attorney three years ago. I live the other side of the country and am unable to visit regularly but I have recently discovered that the fees for my mother's care home have not been paid for some time. I am concerned that my brother is not fulfilling his responsibilities as attorney and may be using my mother's money to pay off his own debts. Is there anything I can do to find out what is happening and perhaps remove him from the role?

Your brother would have had no authority to act until your mother's LPA was registered with the Office of the Public Guardian (OPG). It can be registered at any time after it has been made. Once registered, your brother has authority to make all decisions in relation to your mother's property and financial affairs both while she has capacity to make those decisions herself and when she does not (subject to any restrictions that your mother may have set out in the LPA and subject to a limitation on gifts).

When your brother acts under your mother's registered LPA his duties include the following:

  • To act in her best interests;
  • To have regard to the Code of Practice (which can be found at www.justice.gov.uk);
  • To follow the principles set out in the Mental Capacity Act 2005 (detail can be found in the Code of Practice);
  • To only make decisions that he is authorised to make under the LPA (eg a property and affairs attorney does not have authority to make health decisions);
  • To keep accounts of transactions carried out on your mother's behalf and the Court can ask to see those accounts;
  • To keep your mother's money and property separate from his own, and • Not to take advantage of his position and not to benefit himself.

While the majority of attorneys act with integrity, sometimes there can be concerns over how an LPA is being used, either deliberate abuse or where an attorney does not know how to act correctly. Issues that can raise alarm bells include:

  • Misuse of the donor's money;
  • The attorney not acting in the donor's best interests;
  • Unpaid bills;
  • The attorney opening a credit card account for the donor; and
  • The attorney stopping friends/ family contacting the donor.

If your mother has capacity to do so, she can revoke the LPA at any time if she does not wish your brother to act as her attorney. If your mother is not capable of revoking the LPA, you can raise your concerns about the behaviour of your brother with the Compliance Unit of the OPG (telephone number 0115 934 2777). The OPG will then investigate and can refer the matter to the police where necessary. The OPG might give your brother instructions on how he should be exercising his powers, instruct him to provide information/ documents or it might order a report from a Court of Protection Visitor.

If, as a result of the investigation, the OPG wishes to take action against your brother, it can apply to the Court of Protection. If the Court of Protection is satisfied that your brother has, or proposes to behave in a way that contravenes his authority or is not in your mother's best interests it may (if your mother lacks the capacity to do so) revoke the LPA. If your brother has not complied with his duties, he may have to reimburse your mother for any loss she has suffered.

Mistreating or purposely neglecting someone who lacks capacity is a criminal offence.

A recent case heard by the Court of Protection - in the matter of Harcourt: The Public Guardian v A) - involved a lady who had appointed her daughter as sole attorney. The manager of the care home where she lived became concerned when fees were left unpaid; the lady received a letter from a bank confirming a loan to her of £5,000 and letters from two entities regarding credit card applications that had been made in her name.

The OPG investigated the position, but the attorney was deliberately obstructive. She was ordered to provide accounts and an explanation of her actions but she failed to comply. She was not behaving in her mother's best interests and as the mother lacked the capacity to revoke the LPA, the Court revoked it on her behalf (in order to facilitate the appointment of a deputy) and directed the Public Guardian to cancel its registration.

This article first appeared in Spears Wealth Management on 18 September 2012

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