Lasting Powers of Attorney take effect upon registration at the Public Guardianship Office. The attorney can then often do what they want with the donor’s property.
Although technically under the supervision of the Office of the Public Guardian, in practice the attorney will not be bothered by them. There is no obligation to publish accounts in a public place or to report to the Office of the Public Guardian. As the donor is often someone who is vulnerable and close to losing mental capacity, fraud is often not picked up quickly.
An example of such a case was when Darren Ashton of Shirley, Birmingham, was recently convicted for defrauding an elderly couple over many years starting in 2006. He was sentenced earlier this year at Birmingham Crown Court to five years imprisonment. The crime was reported by a social worker, but by then Marjorie Willits, 92, and Eric Dickinson, 87, had lost £264,173.18.
Mr Ashton used those funds to prop up his business and fund a property dispute. A common Defence in such cases is that the money was invested in the attorney’s projects. It is said that the money would be returned with profit on the projects completion. The money is not returned and the police become involved much later. The Crown Prosecution Service may then seek to recover the money under the Proceeds of Crime Act. Sadly the Defendant is by then often, as in Mr Ashton case, “financially destitute”. As such recovery proves impossible.
The chances of recovery are improved by early intervention. This can be done quickly through the civil courts, rather than waiting for a full police investigation.
Abuse of a Lasting Power of Attorney or an Enduring Power of Attorney should be reported to the Office of the Public Guardianship who has powers to investigate. Sadly that process can also be long and frustrating.
The quickest way forward, where the person still has capacity, is to revoke the Power of Attorney and perhaps set up a new one. That should stop the nuisance. A civil action can be brought to recover the money by the new attorney or the donor.
If the person has lost capacity and is therefore unable to revoke, it is possible to apply to the Court directly to revoke a Power of Attorney. It is then possible to recover monies paid out, assuming that the rogue attorney still has some assets.
At Anthony Gold we regularly act for the Official Solicitor’s department, who take cases on behalf of people who lack capacity and have no relatives. We also act directly for family members, who can sue on behalf of those lacking capacity. Unfortunately, the changes in Legal Aid introduced by the government mean that public funding is no longer generally available for such actions. We do, in some circumstances, offer no win, no fee arrangements.