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Attorneys behaving badly - when you should seek advice

View profile for Lisa Cox
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Attorneys behaving badly - when you should seek advice

My colleague Leah recently wrote a helpful blog about managing someone else’s financial affairs during isolation.  This is one of many helpful articles online providing guidance for attorneys and deputies about how to correctly fulfil their duties.  

What is an Attorney?

Attorneys and deputies manage the affairs for someone else, often when they lack the mental capacity to manage their own affairs. An attorney is appointed by the person themselves, whereas a deputy is appointed by the court.  

Examples of how to correctly fulfil the duties of an attorney or deputy include:

-    Keep receipts for how they spend the other person’s money 

-    Consult with their fellow attorneys/deputies- especially if they are appointed jointly opposed to jointly and severally

-    Keeping their money separate to the other’s person’s money 

-    Only claiming out-of-pocket expenses, and not for their time 

-    Not selling properties or other valuable items without permission, and even so not selling to themselves or other relatives 

-    Making unauthorised gifts from the person’s money 

-    Paying yourself for caring for the person without permission

As you will see, there are a number of circumstances when an attorney or deputy needs permission before they can do certain things.  If someone is unsure about whether they have the authority to do something, we are happy to discuss this with them and assist with obtaining permission if necessary.  

There are unfortunately many attorneys and deputies who do not do things correctly and find themselves in difficulties. This can be due to dishonesty but is sometimes down to people not realising the full extent of their duties. 

How do you become an attorney?

By the donor making a lasting power of attorney (LPA).
This is a legal document which allows you to appoint one or more individuals to make decisions on your behalf, should you ever lose mental capacity or be unable to look after your affairs yourself.

Attorneys are able to assist in making decisions or can make decisions on your behalf, when you can no longer do so.

LPAs are very important legal documents that can be overlooked by many. They are beneficial in that they can allow an individual to plan for the future with an element of reassurance. 

There are two types of lasting powers of attorneys – Health & Welfare and Property & Financial Affairs. An individual can make one or both types but must be over 18 and have mental capacity.

 LPAs are extremely powerful documents and you should only appoint attorneys you can trust!

 

The attorney's duties

We have previously assisted clients who have:

  • gifted funds to themselves
  • paid themselves for caring for their loved one
  • who have not kept proper records of how they have spent the other person’s money. 

All of these clients did not realise they were doing anything wrong at the time.  It is important that deputies and attorneys fully understand their duties as they otherwise face the risk of being removed from their role. This is clearly not ideal as it would often leave a vulnerable person without anyone to manage their affairs, and it can take a long time and be expensive to appoint a new person. 

If you are an attorney or a deputy who is concerned that you may not have fulfilled your duties correctly, or are being investigated by the OPG, then please do get in contact so we can discuss how we can help you. 

Alternatively, we can also help if you are concerned about someone else who is an attorney or a deputy. We have previously assisted clients who believe that a loved one’s attorney or deputy is not behaving correctly. We have assisted in the investigation into the wrongdoing and can advise on options available to pursue the wrongdoer for the loss they have caused and can help remove them from their position. 

Ultimately, if you are in doubt about your powers as an attorney or deputy, or you have any concerns about a loved one’s attorney or deputy, please do get in touch and we can discuss how we can assist you. 

 

I am working from home, but available to talk if you need any further advice on how to carry out your role. If you have a question, I would much rather you ask it and we spend some time having a free chat, than not. We have a team of experts who can advise on attorney and deputy roles. I am based in our Colchester office and can be contacted on 01206 217307 or lisa.cox@birkettlong.co.uk.

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