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The Costa dignity…. Financial abuse case

These cases always stir up my blood, and I ranted at my colleague sitting next to me about this one.

 

Re AH 2016

http://www.bailii.org/ew/cases/EWCOP/2016/9.html

 

In this one, a 95 year old woman, living in a care home and lacking capacity, had appointed her niece’s husband  Colin (is that a nephew-in-law?) to manage her affairs under a Lasting Power of Attorney in 2011.

[One might doubt, from the facts given that she had capacity to enter into that LPA in 2011, when she’d have been 90 years old. Not terribly reassured that The person who certified that Alma had capacity to create the LPA owns a hotel in the New Forest. He said that “Alma has been a personal friend of mine over the past 25 years and has always popped in to see me on her visits to the New Forest.”  ]

Since running her affairs for her, Colin has run up a debt of £100,000 on her nursing fees. He has withdrawn nearly £30,000 from her account. He has purchased a house and put it into her name  (hardly for her benefit, since she’s never going to live in it)

During that time, he has given her the princely sum of £260 of personal allowance. That equates to less than £10 per month – or about £2 per week. Generously, he has sent her about 1% of the money that he took out of her account.

(e) Mixing of funds. Alma and Colin have a joint bank account with Virgin Money. The table within the bundle highlights fifteen ‘concerning’ outgoings which remain unexplained and which were clearly not purchase made on Alma’s behalf including debits to the Odeon cinema, the Wilton Arms Hotel, Toby Carvery and Costa Coffee. Upon his appointment as Alma’s attorney, by continuing to have a ‘mixed account’, Colin breached his duty to keep Alma’s money separate from his contrary to paragraph 7.68 of the Code and has behaved in a way that is not in Alma’s best interests in breach of section 4 of the Act. Attorneys must, in most circumstances, keep finances separate to avoid the possibility of mistakes or confusion and this is not a situation of a husband acting as his wife’s attorney (for example) which might render the presumption to be rebutted.”

 

It doesn’t seem likely that this 95 year old woman, living in a nursing home in Oldham was out visiting the Odeon cinema and drinking coffee in Costa in the New Forest…

 

  1. Decision
  2. The Court of Protection General Visitor, who saw Alma on 19 January 2015, observed that she “has no verbal communication and her dementia is so advanced that she is unable to demonstrate any understanding of her needs or her environment.”
  3. I have no reason to doubt what the Visitor says and, on the balance of probabilities, I am satisfied that Alma lacks capacity to revoke the LPA.
  4. Colin’s management of her property and financial affairs has been a litany of failings.
  5. He failed to pay the nursing home fees and thereby put her placement in jeopardy.
  6. The nursing home had difficulty contacting him. He failed to reply to their letters and failed to return their calls.
  7. He failed to provide Alma with an adequate personal allowance. The stingy sum he did deign to pay her (£290 over 2½ years) amounted to less than £10 a month.
  8. Her clothes are old and worn and mostly hand-me-downs from former residents who have died or moved elsewhere.
  9. The Court of Protection Visitor concluded her report by saying that: “Alma would benefit from a full wardrobe of new clothing. In addition, she is reported to have loved to dance when she was mobile. The nursing home has provided a CD player but Alma would benefit from having her own music player and a range of CDs.”
  10. Colin failed to provide her with even these modest luxuries that could have enhanced her quality of life.
  11. He failed to account to the OPG. In fact, he failed to keep any accounts at all.
  12. He failed to produce bank statements.
  13. He failed to explain how he had managed to spend £29,489 of her money.
  14. He failed to act with honesty and integrity.
  15. He failed to keep Alma’s money separate from his own.
  16. And he failed to treat her with any semblance of dignity, empathy or respect.
  17. Having regard to all the circumstances, therefore, I satisfied that Colin has behaved in a way that contravenes his authority and is not in Alma’s best interests, and I shall revoke the LPA without further ado.

 

In the event that the police ever start prosecuting people like this for fraud or obtaining money by deception, I am more than willing to serve on a jury. Failing that, I hope the Devil has a Costa Coffee franchise in Hell, and that the Odeon there shows nothing other than “Failure to Launch” on rolling repeat.

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It would be difficult to find a more callous and calculating attorney

Yet another financial abuse case. Once again, one where the Deputy or Attorney would have benefited greatly from having one of my coffee mugs with “It’s not your Fucking Money” printed on it.

 

Re SF 2015

 

http://www.bailii.org/ew/cases/EWCOP/2015/68.html

 

In this case, Sheila who is now 87 had appointed her son Martin to manage her financial affairs through an Enduring Power of Attorney.

 

Martin had withdrawn from her funds, £117,289.45 for “out of pocket expenses”, whilst not paying his mother’s care home fees which had been mounting up and had reached £29,000 in arrears.

In justifying this, he stated that he had been ‘billing’ at a daily rate of £400 per day, which is what he would charge in his role as a consultant.  This then included billing his own mother for visiting her. Nice.

 

“In my first witness statement dated 30 March 2015 I stated … that Martin had claimed a total of £49,143.19 since the EPA was registered on 7 August 2009. In Martin’s witness statement he has stated that Hugh James Solicitors sent him a cheque for the amount of £68,146.26. Martin has stated he paid this into his own account in part payment for the costs he had incurred. This amount added to the £49,143.19 amounts to a total of £117,289.45. The Public Guardian believes the amount of £117,289.45 is an excessive amount to claim for out of pocket expenses.

Martin states that he charged for the visits he made to Sheila when he would visit to check for signs of physical abuse due to her mistreatment at [her previous residential care home in Llandrindod Wells]. Martin is an attorney under the EPA, which covers property and financial affairs only. Therefore his visits to check for physical abuse, even if they were necessary to safeguard Sheila, were not part of his role as attorney. Therefore, the Public Guardian believes Martin was not entitled to claim expenses for these visits.”

 

 

  1. As regards the amount of remuneration he has paid himself, Martin said in his witness statement dated 1 October 2015 that:

    “In my view these are not excessive, considering I have been fighting this battle with Powys LHB since 2004. If I had not spent the large amounts of time on this case, then my mother’s estate would still be illegally paying the full costs of care, and the 2013 compensation would never have been forthcoming. Finally, I have not taken any gifts from the estate (which could have been in the region of £33,000 from 2004 to 2015).

  2. At the hearing Martin said that he had charged his mother a daily rate of £400 for visiting her and for the work he put into the claims against Powys Local Health Board. This was his usual daily charging rate when he was a self-employed independent consultant prior to his retirement.
  3. In response to the Public Guardian’s application generally, Martin said:

    “I see no need to replace myself. I am the sole heir and because of my mother’s dementia and current poor health, there is no need to protect the estate’s financial interests, which are effectively mine.The OPG have now recommended that [a deputy] is appointed from their own panel. I would expect any appointed deputy from the OPG to seek to assist the Police in bringing criminal charges against Powys LHB, and to recover the monies owed from Powys LHB. If this is not part of the remit then appointing will be a waste of time and any costs incurred will be to the detriment of my mother’s estate and my own financial interest in my mother’s estate. However, it is apparent that the OPG do not want to pursue the recovery of monies owed from the Powys LHB. The OPG appears to be acting on behalf of Powys CC and Powys LHB, and as such is effectively colluding in their fraudulent behaviour. Consequently I believe that the OPG is not a fit or proper organisation to protect the interest of my mother’s estate.

    On the face of it, the OPG’s desire for me to repay money from my mother’s estate makes little sense. I am the sole beneficiary of the estate and any restitution I made would come straight back to me on my mother’s death, which considering her present state of health, is likely to be sooner rather than later. “

 

Once again, we have a Deputy or Attorney mistakenly thinking that becoming a Deputy or Attorney is actually Cate Blanchett for early access to an inheritance that they expect to acquire.  Nor is it, as he claimed, the purpose of the role to safeguard his own inheritance.

 

All of this led the Judge, Senior Judge Lush to conclude this :-

 

 

  1. One would be hard pressed to find a more callous and calculating attorney, who has so flagrantly abused his position of trust.
  2. Martin hasn’t paid his mother a personal allowance since June 2014 because toiletries were free in her previous residential care home and he resents having to pay for them now in the nursing home in which she has been living since February 2013. He even begrudges her having her hair tinted.
  3. The assertion that he hasn’t taken “any gifts from the estate” adds nothing to his credibility. If anything, it highlights his lack of it. He was referring to the £3,000 annual exemption for inheritance tax (‘IHT’) purposes, but Sheila’s estate is well below the threshold at which IHT becomes chargeable and no one is entitled, as of right, to receive a gift of £3,000 each year.
  4. As regards the non-payment of Sheila’s care fees, I agree with the Public Guardian’s stance that “whilst Martin attempts to resolve the dispute (with Powys Local Health Board), it would be in Sheila’s best interests that he continues to pay her care fees.”
  5. There is no evidence to support Martin’s suggestion that “if my mother’s care fees are paid from now onwards, Powys LHB will seek to avoid refunding monies owed.” The letter from Powys Local Health Board to the OPG, dated 12 March 2015, to which I referred in paragraph 21 above, shows that the Health Board has acted in good faith and reimbursed any fees that were overpaid in the past. Martin, on the other hand, has persistently acted in bad faith.
  6. As for his claim for reimbursement of out-of-pocket expenses for acting as his mother’s attorney, paragraph 6 of Part A of the prescribed form of Enduring Power of Attorney, which he and his mother signed on 23 October 2004, stated that:

    “Your attorney(s) can recover the out-of-pocket expenses of acting as your attorney(s). If your attorney(s) are professional people, for example solicitors or accountants, they may be able to charge for their professional services as well. You may wish to provide expressly for remuneration of your attorney(s).”

  7. Sheila did not expressly provide for Martin to be remunerated and if he intended to charge a daily rate of £400 for acting as her attorney, he should have applied to the court for authorisation pursuant to paragraph 16(2)(b)(iii) of Schedule 4 to the Mental Capacity Act 2005. By not doing so, he behaved in a way that contravened his authority and was not in the donor’s best interests.
  8. The Public Guardian believes the amount of £117,289.45 is an excessive amount to claim for out of pocket expenses. I would put it more strongly than that. I believe that charging one’s elderly mother a daily rate of £400 for visiting and acting as her attorney is repugnant.
  9. Martin suggested that the appointment of a panel deputy would be a waste of time and money because his mother’s estate is effectively already his. I disagree. The panel deputy will, for the first time in eleven years, place Sheila at the centre of the decision-making process, rather than view the preservation and enhancement of Martin’s inheritance as the paramount consideration.
  10. Having regard to all the circumstances, therefore, I am satisfied that Martin is unsuitable to be Sheila’s attorney, and I shall revoke the EPA and direct the Public Guardian to cancel its registration. I shall also direct an officer of the court to invite a panel deputy to apply to be appointed as Sheila’s deputy for property and affairs.

 

 

Is he the most callous attorney ever?

 

Well, in trying to think of a worse one, I can only come up with Harvey Dent from the Batman universe,  the District Attorney who later became a gangster named Two-Face.   [And to be honest, that may be slightly unfair on Harvey  – though possibly not as unfair as Tommy Lee Jones portrayal of him in Batman Forever, in which he was so hammy he needed a bodyguard to protect him from David Cameron between takes ]

 

Heads I bill my mother £400 for visiting her, tails I deny her hair-tinting treatment

Heads I bill my mother £400 for visiting her, tails I deny her hair-tinting treatment

Lasting power of attorney, financial abuse (contains ranting and references to tattoos)

 

These financial abuse cases come along with depressing regularity.  On the last one I wrote about, I made the suggestion that the pamphlet of guidance provided to those people who were appointed as attorneys/ deputies to manage the financial affairs of their vulnerable relative should have on the front cover  “It’s not your fucking money”

 

I have changed my position. That succinct advice should instead be tattooed across the back of the Attorney/deputy’s right hand.

 

Re ARL 2015

http://www.bailii.org/ew/cases/EWCOP/2015/55.html

 

This was decided by long-standing favourite of Suesspicious Minds, Senior Judge Lush.

 

Here are some of the things that the Attorney (the son of the vulnerable person) did with his mother’s money

 

The application was accompanied by a witness statement made by Sophie Farley, who had investigated the case at the OPG. To summarise, she said that:

(a) On 18 July 2014 concerns were raised with the OPG regarding ICL’s management of his mother’s property and financial affairs.(b) There was a debt of £39,000 in respect of unpaid care fees, which ICL was unwilling to pay because he believed that his mother should be receiving NHS Continuing Health Care.

(c) ICL was also in dispute with Hertfordshire County Council and claimed that ARL had been placed in the nursing home in Radlett without his consent. He had instructed Newlaw Solicitors in Cardiff to apply for compensation on his behalf.

(d) He was not providing ARL with an adequate personal allowance.

(e) It was not known known when he had last visited her, but it was thought to have been some time in 2013.

(f) In May 2013 ICL sold ARL’s house in Wheathampstead for £265,000 and used £174,950 from the net proceeds of sale to purchase a flat in his own name in Wheathampstead High Street. The OPG had carried out a search at the Land Registry, which confirmed that ICL is the registered proprietor.

(g) The difference of approximately £90,000 between the net proceeds of sale and the purchase price of the flat had been credited to ICL’s business account, rather than to an account in ARL’s name.

(h) The OPG wrote to ICL on 4 August 2014 asking him to account fully for his dealings with his mother’s finances.

(i) He replied a fortnight, on 18 August, later saying that he had far too many other things to deal with at that time.

(j) He said he was going to meet someone from Labrums Solicitors for advice on his responsibilities under the LPA, “which are now becoming too onerous.”

(k) He has only produced bank statements from October 2012 to October 2013, and an inspection of the bank statements he did produce revealed that he had spent at least £6,641 in a way that was not in ARL’s best interests.

(l) He had failed to account fully for his dealings.

(m) A Court of Protection General Visitor (Christine Moody) saw ARL on 15 August 2014 and confirmed that she has dementia and lacks the capacity to revoke the LPA

 

Now, under my methodology of hand tattooing, he would have been in no doubt that spending £175,000 of his mother’s money on a house for himself was not on, because when he signed the paperwork it would have been staring him in the face. Mandatory tattooing.

 

If this man does happen to have in his possession a mug that reads “Best Son Ever” or similar, it should be confiscated from him, and smashed to pieces in front of him. In fact, if the legend is not “Statistically within the bottom 1 %  of sons ever”  or “not quite as bad a son as Nick Cotton out of EastEnders”, smash it up.

 

Anyway, let’s see what his explanation for all of this was    (the “too long; didn’t read” version is “I needed money, and she had money, so I spent her money”  – to which, I would refer him to the tattoo that reads “It’s not your fucking money”. Sigh.  )

 

“I admit that some of the remaining funds have been used for personal outgoings for me and my family. This was because of difficult personal circumstances. As previously stated, I am fully prepared to pay back the entire amount that I have borrowed from my mother as soon as the sale of my former matrimonial home has completed. In the interests of complying with my duties as an attorney, I set out as far as possible an honest account of the remaining funds:

(a) I was caught drink driving in February 2013 and accordingly I borrowed £3,380 from my mother’s funds to cover my legal costs of defending my position (£2,640) and other related costs such as court fees (£500) and a penalty fine (£240). I attach letters confirming these costs sent to me by Freeman & Co. Solicitors and Sweetmans Solicitors.

(b) I ran out of money in April 2013 and had to borrow £7,500 from a friend, Mrs Pollard, in order to keep afloat financially. I repaid my friend this sum from my mother’s funds.

(c) I was required to pay a deposit of $1,500 (approx. £995) to secure my son’s place at university in the USA and I borrowed my mother’s funds to cover this.

(d) I was also required to cover my son’s college fees whilst he was studying in the USA totalling £7,500. I paid these fees in instalments from my mother’s funds.

(e) I sent £300 to my son on a monthly basis whilst he was living in the USA. These payments totalled £2,400.

(f) I also paid for my son’s flights to and from the USA during his year abroad and also for flights for myself to visit him in the USA totalling £2,774.

(g) During a visit to the USA to see my son in August 2013, I spent a total of $630 (approx. £418) on accommodation and £500 on sundry expenses.

(h) I also paid for my son’s car insurance from my mother’s funds totalling £4,757.17.

(i) During the summer of 2013 I borrowed £6,300 of my mother’s funds for works to my former matrimonial home.

(j) As previously mentioned, JJT borrowed £2,500 of my mother’s funds.

(k) I cannot specifically account for the remainder of the £90,050. However. I am sure that, save for the £2,500 borrowed by my sister, it would have been used by me in order to cover the living costs of my family.

 

 

Now, of course, it is utterly reasonable to raid your mother’s finances, which you’ve been entrusted to manage on her behalf in order to defend yourself when you get caught drunk-driving, and then to pay the fine. I mean, why would you use her money to pay her actual living expenses and nursing fees, when you can be paying your drink-driving fines with it?

 

It is also of course utterly reasonable to not provide your mother with a living allowance out of HER money, but instead use HER money to pay for your SON to have a living allowance whilst he is at College in America.

He also claimed that he didn’t know that the house he purchased with his mother’s money was registered in his name. Of course he didn’t.

 

(e) Until completion of the purchase of the flat in the High Street had taken place, he hadn’t realised that the property was held in his name. He said, “I have subsequently made enquiries of the conveyancer who dealt with the purchase of the property, who confirmed that, as I completed a summary of instructions in my own name, this is the name in which the property was purchased.”

(f) He said it was always the intention that this property was purchased for the benefit of his mother and that he would be happy for the property to be transferred into her name.

 

As ever with financial abuse cases, I find myself looking at the regulations for the provision that says that a deputy who does this shall be placed in stocks in the town centre for a period of forty days and be pelted with rancid fruit, but it seems to have been wrongly omitted from the regulations.

 

Let’s be really clear. Someone who loves and trusts you isn’t able to manage their money for themselves, so they ask you to look after their money for them. And you take that love and trust and repay it by using THEIR money to pay your drink driving fines and buy yourself a house, whilst at the same time running up £39,000 of debts on her behalf in unpaid care fees.  I hope that there really is a special circle of hell for people like this.

 

The Judge was also unimpressed with the Deputy’s behaviour, although somewhat less medieval in the sanctions than I myself would wish to be.

 

 

  1. In this case, ARL’s placement in the nursing home at Radlett was in jeopardy and there was a serious risk that she would be evicted because of ICL’s wilful refusal to pay her care fees. She is settled and content at the nursing home and any action or inaction that might prejudice her placement is not in her best interests.
  2. As is frequently observed in cases of this kind, a failure to pay care home fees, a failure to provide an adequate personal allowance, a failure to visit, and a failure to produce financial information to the statutory authorities, go hand in hand with the actual misappropriation of funds.
  3. In this case, ICL’s misappropriation of funds includes, but is not limited to:

    (a) The purchase of a property in his own name, using £174,950 of his mother’s funds. One of my particular concerns is that ICL is currently going through an acrimonious divorce, and there is a possibility that ARL’s funds could somehow, inadvertently, become part of the settlement in the matrimonial proceedings.(b) Pocketing the rental income from the property for the last two years.

    (c) The funds referred to in paragraph 16 (a) to (i) above, which by my reckoning amount to £36,524.17.

    (d) ICL’s admission at paragraph 16(k) that he cannot specifically account for the remainder of the £90,500, “However, I am sure that, save for the £2,500 borrowed by my sister, it would have been used by me in order to cover the living costs of my family.”

  4. I have no confidence in ICL when he says, “I am fully prepared to pay back the entire amount I have borrowed from my mother as soon as the sale of my former matrimonial home has completed.” He made a similar promise on 15 January 2015, when he offered to transfer title to the flat in the High Street from his name into his mother’s name, but has done nothing about it during the last seven months.
  5. I find it incredible that ICL is ready, willing and able to pursue a claim against Hertfordshire County Council for unlawfully depriving ARL of her liberty, yet is pumped up with tranquillizers and was in no fit state to attend the hearing in this matter.
  6. I also find it curious that he has instructed so many different firms of solicitors or other providers of legal services at his mother’s expense, often to defend the indefensible:

    (a) Rowlington Tilley & Associates drew up the LPA.(b) He was going to meet someone from Labrums Solicitors, St Albans, to advise him on his responsibilities under the LPA.

    (c) NewLaw Solicitors, Cardiff, were advising him on his dispute with Hertfordshire County Council regarding ARL’s placement in the nursing home in Radlett and were also pursuing a claim against the NHS for Continuing Health Care.

    (d) Freeman & Co., Solicitors, Manchester – The Home of Mr Loophole – had been instructed to defending him when he was prosecuted for drink driving.

    (e) He also instructed Sweetmans, another firm of specialist drink driving solicitors.

    (f) Taylor Walton acted for him in the sale of his mother’s house and the purchase of the flat in the High street, and in the proceedings brought against him by the Public Guardian.

  7. I wonder whether this is a smokescreen to ensure that no one firm or company is fully aware of the extent of his ineptitude and deceit.
  8. I am satisfied that ICL has behaved in a way that both contravenes his authority and is not in ARL’s best interests.

 

[I might comment in passing that if you ARE arrested for drink driving, and you consult “Mr Loophole” and he can’t get you off, it is throwing good money after bad to go to a second lawyer to see if they can. It seems to me that you are probably ‘bang to rights’ on the charge.  Of course, when it is NOT YOUR Fucking money, I suppose it bothers you slightly less]

 

 

 

Financial abuse, Court of Protection

I have talked before about how I think Senior Judge Lush has probably the best case load in English justice, and this is another one that doesn’t disappoint.

 

It is probably the most blatant bit of financial abuse I’ve come across, and I hope that those involved will get what is coming to them.

 

Re OL 2015

http://www.bailii.org/ew/cases/EWCOP/2015/41.html

 

OL is 77 and has clearly worked hard all of her life and built up savings. She had a stroke and signed a Lasting Power of Attorney to allow her son YS and her daughter DA to manage her financial affairs on her behalf. There was a third son, who as far as I can see is blameless.  Neither DA nor YS were young people, and they had proper jobs – they were not young and impulsive, nor should they have been in financial dire straits.

 

Despite this, they took the money that they were managing on their mother’s behalf and spent it on themselves.

Let’s put it really starkly

In the six months that DA and YS were ‘looking after’ their mother’s finances, she went from having £730,000 to £7,000.

DA and YS on the other hand, had paid off their mortgage, had a loft conversion, bought a new house (entirely with their mother’s money) in which their mother (who paid all of the money) had a 20% stake and DA (who paid not a penny) had a 40% stake and YS (who also paid not a penny) had a 40% stake.

£730,000 to £7,000 in six months, equates to OL’s financial resources dwindling at a rate of £2,800 per day. OR that at the rate of spending, she had about another three days money left.

Or to put it yet another way (going back to Mostyn J * and the Pizza Express case https://suesspiciousminds.com/2015/06/18/taking-forty-thousand-pounds-in-cash-to-pizza-express/)  if OL had instead of appointing deputies, had gone into Pizza Express and bought meals for fifty people a day, for every day over the last six months, she’d probably be slightly better off now.  Or she could have met with the wife in that case and handed over that forty grand in cash EIGHTEEN TIMES and still been better off)

*second best case-load. And to misquote Bill Hicks “you know, after those first two best caseloads, there’s a real big f***ing drop-off”

 

Senior Judge Lush spells out all of the guidance and law on being a person’s deputy under the Lasting Power of Attorney. If you want to see it, you can find it all in the judgment. A key bit is here

 

Paragraph 7.60 of the Code says:

Fiduciary duty

“A fiduciary duty means attorneys must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. They must also not allow any other influences to affect the way in which they act as an attorney. Decisions should always benefit the donor, and not the attorney. Attorneys must not profit or get any personal benefit from their position, apart from receiving gifts where the Act allows it, whether or not it is at the donor’s expense.”

I think I can condense all of the guidance and law into this simple sentence of my own, however   (apologies for Anglo-Saxon language)

 

“If you are appointed as a deputy to manage someone’s financial affairs, it is NOT YOUR FUCKING MONEY”

 

Lasting power of attorney – revocation.

Re SB 2015 http://www.bailii.org/ew/cases/EWCOP/2015/7.html is another case heard by Senior Judge Lush, involving a person who signed a Lasting Power of Attorney, giving her sons the ability to manage her financial affairs on her behalf when she lost capacity.

It is a GOOD thing to have a Lasting Power of Attorney, particularly if you know that you are suffering from an illness which is going to rob you of the capacity to make decisions for yourself. Much better that those decisions be made by someone you love and trust, rather than by strangers or a Court.

It therefore annoys me massively when the people given that trust misuse it like this man.

b) BB had used £19,038.69 of his mother’s money to pay his farm suppliers.

(c) BB had invested a further £24,000 of his mother’s funds in a biomass boiler at his farm.

(d) although SB owns two investment properties, the rental income from them had not found its way into her accounts.

 

BB’s response?

On 7 October 2014 BB filed an acknowledgment of service in which he stated that he objected to the application. He said:

“I truly believe that we still have the best interest of our Mum at heart both her welfare & finances.”

The Lasting Power of Attorney gave the son the right to manage his mother’s affair FOR HER, and for her benefit. It was not a right to spend what he was assuming was his inheritance whilst she was still alive. If she had wanted to give him this money whilst she had capacity, that would be fine, but she had not made that decision. This is dipping into (well, more plunging than dipping) his mother’s money for his own benefit.

For those who criticise the existence of the Court of Protection (and there are flaws with it, it isn’t perfect), what is your alternative for this? Let the son rob his mother blind?

The cases about sterilisation and C-sections and deprivation of liberty are the ones that get the headlines, but these financial exploitation cases are the real bread and butter of Court of Protection work. It is desperately sad that when money comes into the picture, some people are prepared to abuse the trust placed in them and use their parents money as if it were their own.

 

No point being the richest woman in the graveyard

Re JI (revocation of lasting power of attorney) 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/36.html

 

This was a Court of Protection decision by Senior Judge Lush, who I’ve reported on a lot and who is a Judge that always does a good judgment.

 

It was a case of alleged financial abuse of a vulnerable person by a member of their family appointed to look after their money for them. I know that the Court of Protection has its critics – myself included sometimes, but without them, this woman would have been bled dry by this relative, her own daughter.

 

JL was born in 1938 and lives in her own home in Essex. JL has Alzheimer’s disease.

 On 8 October 2013 she executed a digital LPA for property and financial affairs and, as far as I am aware, this is the first occasion on which the court has considered a digital LPA in the context of an application to revoke the appointment of an attorney.

 

 The LPA was drawn up by JL’s daughter AS online and, perhaps not surprisingly, JL appointed AS to be her sole attorney. She did not receive any independent advice about the creation of the LPA, though AS claims that she fully explained the document to her mother before she signed it.

 

 A friend of the family witnessed JL’s signature and acted as the certificate provider. The function of the certificate provider is to certify that:

 

(a) the donor understands the purpose of the LPA and the scope of the authority conferred under it;

 

(b) no fraud or undue pressure is being used to induce the donor to create the LPA; and

 

(c) there is nothing else which would prevent the LPA from being created by the completion of the prescribed form.

 

Over a period of time, it became apparent that JL was living in squalor and not having her financial needs met – although she had capital funds to provide for her, she was not being given the money she needed.

 

(a) Essex County Council reported its concerns to the OPG on 24 April 2014.

 

(b) Copies of JL’s bank statements revealed that there had been a number of excessive and uncharacteristic withdrawals from her funds.

 

(c) From 18 January to 9 April 2014 there had been twenty-five cheque withdrawals ‘paid to cash’ totalling £4,290. These payments averaged £171 and were withdrawn every few days.

 

(d) Over the same period JL’s only capital asset other than her home had halved in value to £10,669 and, at the current level of expenditure, her funds would be entirely depleted within nine months.

 

(e) The investigator at the OPG spoke over the phone to JL’s social worker, Sharon Morris, who stated that a man, who had recently been released from prison, had offered JL £100 to perform a sexual act for him.

 

(f) JL had told Sharon Morris that her attorney kept her so short of money that she considered prostitution as the only way of resolving the problem.

 

(g) In particular, JL said she needed the money so that she could pay the train fare from Sheffield for her son to visit her (£100) and to compensate him for the overtime he would otherwise have earned but for the visit (£80).

 

(h) AS, on the other hand, claimed she gave her mother £600 a month spending money.

 

(i) JL was paying £32 a month for her daughter’s T-Mobile phone contract, but many other bills were left unpaid and she owed £946 to Npower.

 

 

The daughter objected to being removed as an Attorney and for Essex to be appointed in her stead. The Court heard evidence and had to apply the tests of the Mental Capacity Act.

 

 

I am, indeed, satisfied that AS has behaved in a way that contravenes her authority and is not in JL’s best interests.

 

(a) She admits that she failed to keep proper accounts and financial records.

 

(b) Her explanation for the dramatic increase in JL’s expenditure was “there is no point in her being the wealthiest woman in the graveyard.”

 

(c) She profited from her position by using her mother’s money to pay her own mobile phone bill.

 

(d) There is evidence that she placed JL under pressure regarding this matter.

 

As this had been a Lasting Power of Attorney set up online, with no independent person explaining things to JL (who had capacity at that time – or at least, one hopes so – part of the danger of doing it online is that she doesn’t necessarily meet with anyone independent to confirm that), it becomes even more important that the Attorney who signs the document saying that it has all been explained to JL actually does this proper job of explanation. Otherwise it looks like a snow job.

 

I shall consider these reasons in a little more detail. First, AS admits that she failed to keep proper records and accounts. At the hearing she said she did not know she had to keep accounts and that she had not read the declaration in Part C of the prescribed form of LPA, which she had signed. It says:

 

 

“I understand my role and responsibilities under this lasting power of attorney, in particular:

I have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.”

 

This admission is damning enough, but it gives rise to additional concern about the circumstances in which the LPA was created. If AS failed to read Part C, it makes it hard to believe her assertion that she had carefully read and explained to her mother the contents of Part A of the LPA – the part that the donor is required to complete.

 

 

AS’s retort that there was no point in her mother being the wealthiest woman in the graveyard is trite and misses the point. JL is far from being a wealthy woman and what funds she has should be applied for her benefit and in her best interests. She lives in squalor. When Social Services initially visited her on 1 July 2013 they observed animal faeces on the carpets from her dog and three cats. Her food had a layer of mould on it, but she was nevertheless reheating and eating it, and she had neither washed nor changed her clothes for six months.

 

[But hey, as long as the daughter’s mobile phone bill is getting paid, everything is fine, right?]

 

Finally, as regards AS exerting pressure on JL, in her witness statement dated 26 September 2014 JL’s social worker, Sharon Morris, said:

 

 

“JL has discussed concerns regarding her relationship with her daughter AS with me on several occasions. JL can get very anxious when at times she cannot contact her for days. She does not answer her calls or the door when she visits. On the occasions she does meet with her daughter she reports that she shouts at her and pressurises her for money.”

 

I have to say that from my own observation of AS’s demeanour at the hearing that she came over as forceful and persistent and I imagine it would be difficult for a lonely, vulnerable woman with a cognitive impairment to resist complying with her wishes and demands.

 

 

The Court, quite rightly, removed AS as an Attorney. It is always a shame when this sort of thing happens, because the best people to look after a vulnerable person and manage their finances are relatives, where possible. But it is vital that those relatives realise that their responsibility is to spend JL’s money on her, and meeting her needs, and not using their vulnerable mother as a personal piggy bank.

 

I am satisfied that (1) AS has behaved in a way that contravenes her authority and is not in JL’s best interests, and (2) JL lacks capacity to revoke the LPA herself, and I shall revoke the LPA for her.

 

 

With regard to the appointment of a deputy for property and affairs, I consider that it would be in JL’s best interests to appoint the authorised officer for property and affairs deputyships of Essex County Council as her substantive deputy. He is already acting as her interim deputy by virtue of my order of 10 June 2014 and JL has expressed a preference that he should continue to manage her funds.