11 April 2014 by

Attorneys Beware!

A recent decision by the Court of Protection serves as a reminder to all those appointed as an Attorney or Deputy not to allow their own interests to conflict with the best interests of the person under their care.

The case involved a 90 year old lady being cared for by her daughter and son-in-law. The Court found that the couple provided excellent care and had made significant sacrifices in order to look after her. Their conduct in this respect was exemplary and they were to be commended.

Unfortunately, their dealings with her finances were another matter. They sold her house and used the proceeds to purchase a new property for them all to live in together. Strangely the house was registered in the joint names of daughter and son-in-law, despite the purchase monies being provided by the mother.

When the son discovered what had happened he questioned his sister and was told that their mother had agreed to purchase the property by way of a loan to her and her husband, which was to be repaid from the sale of their property in Spain. She further claimed that her brother agreed to this, but he denied having any knowledge of the arrangement.

The Court found that the mother had not consented to this arrangement and, in any event, did not have the capacity to consent to such an arrangement. It also found that the daughter deliberately withheld the details of the purchase from her brother and acted in this way in order to compensate herself for the sacrifice of having to look after her mother.

Whilst there was no allegation of fraud the Court found that the daughter had lost sight of what was in her mother’s best interests and was acting to her own benefit. The daughter had also made a Will for her mother that was found to be invalid and a statutory will was drawn up instead leaving the mother’s estate equally between her children. The property was transferred into the mother’s sole name and the daughter was ordered to pay the majority of the no doubt significant legal costs of this dispute.

This case should serve as a reminder to anyone acting as an Attorney or a Deputy to act independently at all times and to always consider what is in the best interests of those for whom they care. Never should they allow their own interests to conflict with that duty.

If you are appointed as an Attorney or a Deputy it is advisable to meet regularly with legal advisors to review the arrangements put in place. Bolt Burdon solicitors offer a fixed fee advice meeting to review and discuss matters and to check the legality of actions.

If you are an Attorney or a Deputy and require any legal advice or assistance, please contact member of the Wealth and Estate Planning team.

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