Court of Protection case revoking LPA
- Thread starter Norfolkgirl
- Start date
I disagree. I found it an interesting read and evidence, rather than just hearsay, of the circumstances in which the OPG will intervene.
It beggars belief that family members can behave in this way. I hope the LA goes after her for deprivation of assets too should her mother ever need help with care fees in the future.
It beggars belief that family members can behave in this way. I hope the LA goes after her for deprivation of assets too should her mother ever need help with care fees in the future.
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Yes we do know BUT how often does it happen? We have read a few posts where the OPG does nothing when given the evidence. If the Mother should need residential care in the future her options will be limited if she has no funds left.
Thanks for this Norfolkgirl
Take care
Lyn T
I found it a fascinating read, not least because there was such detailed information about the POV of the ' big spender'. Extremely arrogant, suspicious of lawyers and the law, contemptuous of her sister. However, her wanting to provide a safe, suitable and attractive environment for her mother and herself to live in was understandable.
It became a sort of 'marriage'. She felt entitled to be compensated for everything she had given up and chose to achieve this by building a gilded cage for them both. It is hard to believe that the building works really cost that much!
The judgment explains what she could and should have done instead. That was fascinating too. So often we read about situations in the media, or here on TP, and think about what could or should have happened, but it is always distorted by not having all the facts. When presented before this court, the facts were clarified, but also the perspectives of all parties were outlined in short statements. Very interesting.
As a legal Guardian (same as a Deputy) I am required to be under much greater scrutiny by OPG than is an Attorney. I could not, for example, exclude my OH from active participation because as joint Guardian he has to sign the Inventory, Management Plan and Annual Account. I wish those with POA were a bit more actively accountable. An annual report signed by all Attorneys would be a good idea, if only the OPG had the resources to deal with actively monitoring all cases.
It became a sort of 'marriage'. She felt entitled to be compensated for everything she had given up and chose to achieve this by building a gilded cage for them both. It is hard to believe that the building works really cost that much!
The judgment explains what she could and should have done instead. That was fascinating too. So often we read about situations in the media, or here on TP, and think about what could or should have happened, but it is always distorted by not having all the facts. When presented before this court, the facts were clarified, but also the perspectives of all parties were outlined in short statements. Very interesting.
As a legal Guardian (same as a Deputy) I am required to be under much greater scrutiny by OPG than is an Attorney. I could not, for example, exclude my OH from active participation because as joint Guardian he has to sign the Inventory, Management Plan and Annual Account. I wish those with POA were a bit more actively accountable. An annual report signed by all Attorneys would be a good idea, if only the OPG had the resources to deal with actively monitoring all cases.
Another CoP case taken from a solicitor's website:-
In the matter of Harcourt: Public Guardian v A
This recent Court of Protection matter involved a property and affairs LPA made by Mrs Harcourt (Mrs H) appointing one of her daughters as her sole attorney. The LPA was registered by the OPG two months later. Mrs H lived in a rest home and the manager became concerned when:
Fees were left unpaid;
Mrs H was not receiving an adequate personal allowance;
Mrs H received a letter from a bank confirming a loan to her of £5,000; and
Mrs H received letters from two entities regarding credit card applications that had been made in her name.
Concerns were raised with the OPG which opened an investigation and asked a Court of Protection Visitor to visit Mrs H. The OPG discovered that there had been frequent cash withdrawals since the LPA had been registered.
A directions order was made but the attorney failed to comply with it. Over six months she requested three adjournments and extensions of time for producing proper accounts and explaining her actions. Her fourth application for an indefinite adjournment was refused. A hearing in the Court of Protection before Senior Judge Lush took place in July 2012; the attorney did not attend.
The first question the Court considered was whether Mrs H had the capacity to:
require her attorney to produce accounts/ financial records,
examine those accounts/ records and
call for an explanation of any queries.
Senior Judge Lush found that she did not and said that accordingly, the Court had discretion to intervene. The Court then considered what would be in Mrs H's best interests using the checklist set out in section 4 of the Mental Capacity Act 2005. The fact that the attorney had a job as an auditor was a relevant factor as it would be reasonable to expect a higher standard of care from her in terms of awareness of her fiduciary duties. Senior Judge Lush said that "the factor of magnetic importance…. is that [Mrs H's] property and financial affairs should be managed competently, honestly and for her benefit."
It was held that the attorney was deliberately obstructing the investigation into the donor's financial affairs by the OPG, that she had failed to comply with the directions order and was not behaving in Mrs H's best interests. As Mrs H 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.
And so..
It is vital for the donor of an LPA to choose their attorney carefully. Most LPAs are used for their proper purpose. However, there are instances where LPAs have been misused and it is therefore important for family members and others to raise any concerns they may have about the behaviour of an attorney to ensure that the relevant authorities and the OPG can take the necessary steps.
In the matter of Harcourt: Public Guardian v A
This recent Court of Protection matter involved a property and affairs LPA made by Mrs Harcourt (Mrs H) appointing one of her daughters as her sole attorney. The LPA was registered by the OPG two months later. Mrs H lived in a rest home and the manager became concerned when:
Fees were left unpaid;
Mrs H was not receiving an adequate personal allowance;
Mrs H received a letter from a bank confirming a loan to her of £5,000; and
Mrs H received letters from two entities regarding credit card applications that had been made in her name.
Concerns were raised with the OPG which opened an investigation and asked a Court of Protection Visitor to visit Mrs H. The OPG discovered that there had been frequent cash withdrawals since the LPA had been registered.
A directions order was made but the attorney failed to comply with it. Over six months she requested three adjournments and extensions of time for producing proper accounts and explaining her actions. Her fourth application for an indefinite adjournment was refused. A hearing in the Court of Protection before Senior Judge Lush took place in July 2012; the attorney did not attend.
The first question the Court considered was whether Mrs H had the capacity to:
require her attorney to produce accounts/ financial records,
examine those accounts/ records and
call for an explanation of any queries.
Senior Judge Lush found that she did not and said that accordingly, the Court had discretion to intervene. The Court then considered what would be in Mrs H's best interests using the checklist set out in section 4 of the Mental Capacity Act 2005. The fact that the attorney had a job as an auditor was a relevant factor as it would be reasonable to expect a higher standard of care from her in terms of awareness of her fiduciary duties. Senior Judge Lush said that "the factor of magnetic importance…. is that [Mrs H's] property and financial affairs should be managed competently, honestly and for her benefit."
It was held that the attorney was deliberately obstructing the investigation into the donor's financial affairs by the OPG, that she had failed to comply with the directions order and was not behaving in Mrs H's best interests. As Mrs H 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.
And so..
It is vital for the donor of an LPA to choose their attorney carefully. Most LPAs are used for their proper purpose. However, there are instances where LPAs have been misused and it is therefore important for family members and others to raise any concerns they may have about the behaviour of an attorney to ensure that the relevant authorities and the OPG can take the necessary steps.
There's a lot of it about it would seem
The underlying theme with cases of financial abuse is that someone develops a sense of entitlement to use another person's resources for their own benefit.
Adult children revert to sibling rivalry, or can feel that the parent 'owes' them, for past or present actions. Perhaps their sense of entitlement to inheritance has always been there and they feel aggrieved that this is at risk. An adult child who is a parent may want better things for their own children and decides to take what they can in order to achieve this, because they think their children are more important than their elderly parents. Families are complicated.
People are skilled at deceiving themselves and justifying their actions. Some people are weak and greedy and will take from others if they can get away with it. 1% of the population is a sociopath (so they say). Safeguards need to be effective to nip abuse in the bud. With an increase in elderly people, and especially people with dementia, the authorities that should protect them need to be adequately resourced.
The underlying theme with cases of financial abuse is that someone develops a sense of entitlement to use another person's resources for their own benefit.
Adult children revert to sibling rivalry, or can feel that the parent 'owes' them, for past or present actions. Perhaps their sense of entitlement to inheritance has always been there and they feel aggrieved that this is at risk. An adult child who is a parent may want better things for their own children and decides to take what they can in order to achieve this, because they think their children are more important than their elderly parents. Families are complicated.
People are skilled at deceiving themselves and justifying their actions. Some people are weak and greedy and will take from others if they can get away with it. 1% of the population is a sociopath (so they say). Safeguards need to be effective to nip abuse in the bud. With an increase in elderly people, and especially people with dementia, the authorities that should protect them need to be adequately resourced.
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And it doesn't help when, in my experience, there are several abusers who are professionals who are involved in protecting the fraudster family member LPA attorneys since they were reported i.e. Social Workers/Police/Care home management + staff who would all appear to be pally with each other.
A thread a while ago asked if any action had ever been taken over suspected deprivation of assets - maybe this particular example shows that the overseeing agencies can step in to safeguard from these forms of abuse of power.
Katrine's description of the psychology serves as a reminder that while we may all believe that we act as adults, the self centred child is not so far beneath the skin and it's worth questioning ourselves at times to be sure we really are acting in the best interests of those we care for.
And I am NOT suggesting that on the whole we aren't - a lot of soul searching goes on amply evidenced in the posts on TP.
Katrine's description of the psychology serves as a reminder that while we may all believe that we act as adults, the self centred child is not so far beneath the skin and it's worth questioning ourselves at times to be sure we really are acting in the best interests of those we care for.
And I am NOT suggesting that on the whole we aren't - a lot of soul searching goes on amply evidenced in the posts on TP.
Unfortunately not Shedrech. In my case, the "overseeing agencies" are the ones involved in the cover up. Much similar to Rotherham scandal (where SS/Police involved in not acting appropriately, after so many alerts).
