An Attorney for Property and Financial Affairs, or a Deputy for Property and Financial Affairs, is appointed to manage the money and property of other people. Attorneys are usually appointed under a Lasting Power of Attorney, by the person that makes the Lasting Power of Attorney (‘the donor’). Prior to 2007, Attorneys were appointed under an Enduring Power of Attorney.
Under a Lasting Power of Attorney, an Attorney can be appointed to make financial decisions, or welfare decisions. A Deputy is appointed by the Court of Protection when the person whose money needs managing no longer has capacity to make decisions about managing their own money, and is unable to appoint an attorney to manage their finances.
Attorneys and Deputies have a huge amount of responsibility, and are held to very high standards. The Office of the Public Guardian are responsible for monitoring and supervising Attorneys and Deputies, and provide some guidance on how to carry out the roles. However, the sheer number of attorneyships and deputyships in England and Wales is very high, and growing each year. According to the OPG’s 2023/2024 report, in the year 2023/24, there were just over 8 million powers of attorney and 60,000 deputyship Orders registered with the Office of the Public Guardian. This means that abuse and neglect such as stealing money, making excessive gifts, using the person’s funds to benefit themselves, or not paying care fees, can go on unnoticed for quite some time.
The statistics from the OPG in terms of investigations 2023/24 confirm that:
There are a number of red flags that can indicate that an Attorney or Deputy is abusing their role. The Law Society has produced some helpful guidance on this, and key red flags include:
It can feel like an impossible task stopping an abusive Deputy or Attorney in their tracks, as they are the ones that have access to all of the bank accounts and financial records for the donor or vulnerable person. However, there are many ways it can be done.
Where an Attorney or Deputy dishonestly uses a Power of Attorney or Deputyship to make a gain for themselves or others, or cause a loss to another, this is a specific criminal offence under s.4 Fraud Act 2006, with far reaching consequences. Additionally, if an Attorney or Deputy looks after the donor or vulnerable person, and they ill treat or wilfully neglect the donor or vulnerable person, then this is a separate criminal act under s.44 Mental Capacity Act 2005. The consequences of either are very serious, and there have been many convictions under each of them. Importantly, the case of R v TJC [2015] EWCA Crim 1276 confirmed that it isn’t necessary to establish that every withdrawal made by the Attorney was used for the Attorney. Instead, what the prosecution needed to establish was evidence that the expenditure was at a level beyond that which the donor needed for meeting their expenses, and so out of line with the donor’s usual pattern of expenditure and needs, that the Attorney couldn’t have been acting honestly. Therefore, if a clear evidence can be established in respect of either of the two above offences, then it is certainly worth considering making a referral to the adult’s local police force.
The Office of the Public Guardian has a specific adult safeguarding hotline, for reporting any concerns about an Attorney or Deputy. They will consider all referrals made to them, and take action where they consider it appropriate to do so. It is helpful if you are able to give them some evidence of the impact that the suspected abuse is having on the donor or vulnerable person, or of funds or assets being misappropriated. They have very deep and far ranging investigative powers, and can obtain evidence from banks and government bodies as needed.
Additionally, every Local Authority has an Adult Safeguarding Board, and should have a specialist team dealing with reports of neglect and abuse for Adults in their region. If the person you are concerned about is at risk of harm, abuse or neglect, then a referral to the adult’s relevant Local Authority should be made.
A further option available is that an Application can be made to the Court of Protection for the Court to consider removal of the Attorney or Deputy. The Applicant will need to evidence their concerns of abuse and/or neglect. The Court will consider whether there is sufficient evidence to remove the attorney or Deputy on the basis that they either plan to act, have acted, or are acting, in a manner that contravene’ s their authority and/or is not in the best interests of the person that they are representing. The Court also has authority to Order disclosure of important records such as bank statements and accounts, and can ask a Deputy or Attorney to produce reports and records of their actions and decision making.
Finally, the simple power of conversation should not be overlooked. It may be that the Attorney or Deputy is simply unaware that what they are doing is not permitted, or that once concerns are raised, changes can willingly be made.
Should you wish to discuss any of the issues raised in this article, then please contact Holly Mieville-Hawkins or another member of our specialist Mental Capacity team.
