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Elderly parents

LPA - easy to abuse?

8 replies

mrscoxaools · 04/06/2021 23:14

My siblings and I have LPA (financial & health) for my Mum who has dementia.

I'm really concerned as their have been lots of fights about money between my all my siblings (it's a very emotive subject in our family due to long-running issues) and to put it bluntly I'm very concerned that the LPA might end up being abused (we are all named on there and can act individually).

My DM has care at home, and still owns her own home, I'm really concerned one of my siblings might do equity release etc on her home and the rest of us would be none the wiser.

Once the money is gone I assume it's not something the police would be interested in, and not fraud as the sibling has LPA?

Money really has blighted my families lives and I can see if messing up this generation's relationship with each other and money too if this happened, but there doesn't seem to be any way of safe guarding against this potentially happening?

OP posts:
CovoidOfAllHumanity · 04/06/2021 23:19

If you are all named (jointly and severally) then you can all see the accounts and see what is happening so nothing should be able to be done in secret.

The ultimate safeguard is the Court of Protection. If someone misuses an LPA for their own gain rather than for the person who made it then the LPA can be removed by the court and they can be made to pay back the money and get fined. If you suspect the LPA is being abused then you report the abuser to the court and keep any evidence that you can find.

Mosaic123 · 05/06/2021 09:36

I think you can check at the Land Registry that there is no charge on the house, i.e. that no one owns the house meaning that equity release has not been done.

MereDintofPandiculation · 05/06/2021 10:25

@Mosaic123

I think you can check at the Land Registry that there is no charge on the house, i.e. that no one owns the house meaning that equity release has not been done.
You can put something on Land Regsitry to prevent a charge being put on a house you own without a solicitor certifying the reuest has come from you - it may be able to do something similar as regards LPA.

Once the money is gone I assume it's not something the police would be interested in, and not fraud as the sibling has LPA? LPA only gives you the right to manage her money for her benefit, not to do as you wish with it. This website is interesting:

"This is demonstrated by the recent case ofR v TJC [2015] EWCA Crim 1276. In this case it was held that it is possible to bring a charge against an attorney if there is ‘abuse of position’ under Section 4 of the Fraud Act 2006. The Court held that the circumstances would need to show that there is evidence of a general deficiency in the donor’s funds as a result of withdrawals made by an attorney. In this case, the Court of Appeal held that it was not necessary for the prosecution to present evidence of specific fraudulent transactions, i.e. identifying each withdrawal against expenditure. What was sufficient in this case was demonstrating that the total value of withdrawals by the Attorney (totalling approximately £75,000), exceeded the reasonable sums that would have been incurred over specific periods in providing for the donor given their needs. In this case, although it was accepted that some of the funds were spent on the donor, the Attorney had been spending “sums to such a degree and in such high quantities in certain given months that she could not possibly have been acting honestly”."

"n general, where there is suspected financial abuse by an attorney, the Office of the Public Guardian (“OPG”) should be informed immediately. The OPG will investigate thoroughly and then, if appropriate, take steps to intervene such as cancelling the EPA/LPA, freezing the donor’s assets, arranging for a new attorney to be appointed, or referring the matter to the Court of Protection. There is usually an Adult Protection Team as part of the Local Authority who can also intervene where appropriate. As, the case of R V TJC serves to remind us, in some circumstances it may be appropriate to report the situation to the police, as a criminal investigation and potentially a prosecution could be appropriate."

"Civil remedies for recovering the loss should also be considered, both in and out of the Court of Protection. It is for instance in the Court’s power to order the attorney to compensate the donor for losses. It may also be appropriate to consider an action for breach of fiduciary duty, negligence, or a claim for restitution on the basis that the attorney has been unjustly enriched through misuse of the donor’s funds. This kind of action would need to be taken by the donor, or if they lack the capacity to partake in proceedings, someone on their behalf such as a Court appointed Deputy."

Intercity225 · 06/06/2021 20:34

I would have thought that you could also report it to social services as financial abuse?

mrscoxaools · 08/06/2021 13:11

The thing is, it's all very well saying you can report to social services and the courts etc, but would you do that to your family? (And would the authorities even bother - particularly if the vulnerable person dies/has dementia/is in a home.

I would rather try and safeguard before this happens, but it does look that's not possible as the family member has individual authority

OP posts:
Intercity225 · 08/06/2021 14:12

The thing is, it's all very well saying you can report to social services and the courts etc, but would you do that to your family?

Yes, I would if I suspected theft or fraud on a vulnerable member of the family, who does not have capacity - the duty is to act in that person's best interests. I would also make a complaint of money laundering to the authorities, if I thought that was going on too.

I have not studied LPAs very much, because it hasn't applied to us so far (I am an appointee; and we have to apply to be Deputies); but I would have thought it can be set up so that two people have to authorise all transactions jointly?

MereDintofPandiculation · 08/06/2021 14:30

but I would have thought it can be set up so that two people have to authorise all transactions jointly? it can be, but in this case it hasn’t been.

CovoidOfAllHumanity · 08/06/2021 20:43

The only way you can pre empt this is if your mum still has capacity and she agrees to change the LPA either to take off the person who you are concerned about or to make it joint and NOT several so no one can act without the others agreement.

If she now lacks capacity then it cannot be changed at this point and all you can do is report if you have concerns

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