Bank accounts locked and cash withdrawn after elderly gave power to law firm partner - BBC News
As someone who works with elderly and vulnerable clients, and prepares Lasting Powers of Attorney, including those appointing professionals, this story is truly concerning. I want to start by saying that I am a huge advocate for having Lasting Powers of Attorney in place, and I hope this story does not put people off ensuring their affairs are in order. There are however some useful points raised in relation to how an attorney should act and what the donor should expect when appointing a professional.
Firstly, a professional should only be appointed if there is a clear need for them to act, either due to complexity of affairs, family dynamics or if there is simply no one else around who can act. They should make their charges clear at the outset, and indeed most LPAs appointing professionals would normally include a formal charging clause, preferably one indicating the date on which those charges were explained to the donor and agreed. An attorney’s role should be to help and support the donor, particularly where they retain mental capacity, not to simply take over their affairs.
It is worth noting that all attorneys are bound by a duty to act in the donor's best interest, regardless of whether or not they are acting in a professional or personal capacity. This is the foundation on which the Mental Capacity Act 2006 operates. That includes a duty to involve the donor in decisions (especially significant decisions such as the sale of their home) where they retain mental capacity. Even in cases of fluctuating capacity there is a duty to involve the donor as much as possible in any decisions that is being about them or their affairs. It will always be difficult to claim that someone is acting in the best interest of another where that person is excluded from the decision making process (an extremely paternalistic and controlling thing to do).
A point on which I feel very strongly is that s person should never feel pressured into putting a power of attorney in place. That is probably the biggest red flag in all of the stories reported by the BBC. This should be where the inclusion of a certificate provider comes into play: it is a part of the role of a certificate provider, who should be independent of the attorneys, to ensure that the donor has capacity, understands the authority being given, and is entering into that document of their own free will. Where a professional is being appointed this means that neither they nor any of their co-workers or employees can fulfil this role. I will state that coercion is not always easy to identify, and given the fact that the person being appointed was a professional and so there would not be an obvious personal motive for coercion, I have some slight sympathy on this point. However it is nonetheless something that should be explored with the donor and not simply taken for granted by a certificate provider.
On a practical point, I always advice attorneys to keep clear records of any spending from the donors accounts. They should be able to easily evidence any actions taken, and should almost accept and be open to a certain level of scrutiny to show no wrongdoing on their part. The cash withdrawals in this case are particularly alarming, especially if no receipts or records are available. In all the cases where we have acted as professional attorneys, I cannot think of a single case where I felt it was necessary to make cash withdrawals from a client’s bank account. The only reason I could even imagine for this would be to provide cash directly to the donor, for them to spend on their own behalf, or maybe to the home for incidentals, but even in those circumstances a professional should have a clear record of what had happened and why.
Where you are paying for a professional service, the standard expected is higher than for a lay person. I think it can be safely said that, based on this article even a lay persons actions would have been called into question. With all that said, given the limited responses received by the BBC, and the fact that the gentleman involved has yet to make any statements of his own, I think we will need to watch this space to see how the story unfolds. It does however serve to highlight the expectations placed on an attorney, both professional and personal, to keep clear records of their actions at all time.
If you have any questions about putting in place Lasting Powers of Attorney then please contact Ashley Minott by email or on 01494 893518.