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How To (Effectively) Confront LPA Financial Abuse

Posted: Friday, 4 January 2019 @ 13:43

We live in interesting times where the leading retiring Judge on Lasting Power of Attorney disputes, Denzil Lush and author of the book, Lasting  and Enduring Power of Attorneys has said he would not trust anyone to be his attorney and criticises the Ministry of Justice for promoting LPAs.  

It is all very well the Ministry of Justice referring to its zero tolerance to attorney abuse but a fundamental safeguard against LPA abuse would be the power of the Office of the Public Guardian to investigate alleged abuse post death and that is not happening.

Most LPA abuse is not effectively detected let alone confronted and with increasingly LPAs being rolled out more and more, there is going to be increasingly LPA abuse.

Families are going to be ripped apart.

The Office of Public Guardian in conjunction of with the Court of Protection works hard but the legal safeguards are weak but how do you effectively confront LPA abuse; what can be done to bring justice?

1 Recognise the Difficulties – The most effective people who can obtain justice are those that have an understanding that the legal options are stacked against you unless you have compelling evidence. (but see below). The key particularly to LPA abuse is to obtain financial evidence but often the difficulty is proving it. Third parties such as Courts and the police will rarely get involved.

2 Be Determined and Patient – From experience if you are unable to secure interest by the Office of Public Guardian during the lifetime of the donor, you will have to wait until the donor has passed away and then it is at that point more (appealing) legal avenues will result albeit the onus will be on you to successfully confront the LPA fraud. If you are patient and determined people you instruct to help you such as lawyers and forensic accountants will inevitably feed of that.

3 Face Up to Blatant Denial and Counter Threats – LPA abuse is an unusual thing and from my experience fraudsters and indeed their lawyers(if they instruct them) can behave bizarrely in the face of overwhelming evidence against them or their clients. (e.g. they can start threatening you with unjustified costs awards). Given the stakes are high this is not surprising but one has to be tough in such instances.

4 Bank Statements Are Often Key - From experience, the fraudster will do everything possible to resist you getting the bank statements of the deceased unless they have been doing more underhand tactics. Given this, targeted legal action should be considered including request for inventory and account or a citation to force probate to be obtained. The key is finding the correct legal avenue given that power post death initially lies with the executor. The impact of obtaining legal scrutiny from a judge and a cost order together with the possibility of taking enforcement action should not be under-estimated. Some lawyers like to go for outright removal of executors but a patient approach and a targeted one is largely the place to go.       

5 Presentation of Evidence Assumes Massive Importance – Alleging LPA fraud is a serious matter and fraught with emotion. Given this one (and indeed) your lawyer must be very careful in how you present any allegations of such a sort. Thus plain and possibly understated expert evidence (e.g. forensic accountant report) may be sought. This evidence can be key in winning over the judge if one goes to Court.

LPA & Probate Abuse has a dedicated chapter in my forthcoming book on Elderly Client Law