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
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
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
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)