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What is The Best Way To Scrutinise A LPA's Attorney's Unauthorised Payments?

Posted: Tuesday, 21 November 2023 @ 11:53

One of the scenarios which I deal with is on Deceased's Persons Estates where what emerges is that the Deceased made a financial and property Lasting Power of Attorney while alive, her attorney made a series of (questionable) financial transactions to him/herself while alive and now the beneficiaries want to have those monies paid back to the Estate.

This is easier said rather than done and from my experience I have found some executors to actually be resistant to either getting the monies back from errant attorney or doing what I would call a thorough investigation.

There are some reasons for this:

  • From an executor's point of view it puts them bang in the middle of a conflict between at least two disputing parties. 
  • The work involves often analysis of bank statements which they may not find interesting.
  • The executor may want to search for what gives them the easiest life, not necessarily what is the correct thing to do.    
  • Time has passed giving less motivation to do anything. 

Thus on the basis that the attorney has done something untoward and you have the bank statements there are some steps to take which do enhance your prospect of getting those monies placed in the Estate.  

1 Have all the Bank Statements.

2 Reference the Questionable Payments In A Clear Way - Given the complexity of the issues, how you present can take a critical level of importance. 

3 Use Your Legal Back Up Carefully. With respect to LPAs/errant attorneys a very useful document to use is the OPG Practice Note PN7: Giving gifts: a guide to the legal background for deputies and attorneys. 

The Office of Public Practice Note PN7 is pretty succinct but gives you a useful platform of information which will enable you to put forward a case that an executor/administrator should be investigating transactions done by the attorney.

The note gives detailed guidance on how attorneys should approach giving gifts on behalf of the person they act for (often called ‘the person’ in this practice note). The note explains the legal framework to gifting and the approach the Office of the Public Guardian (OPG) takes when  attorneys go beyond their authority to give gifts.

While the OPG will not get involved now the Deceased has passed, the document in a clear way  shows what the attorney should have done with their gifting which may not have happened in your case. 

On my cases which seek to investigate attorneys in detail I will reference the PN7 form.