Disputing the Conduct of an Attorney following the death of the Donor

Disputing the Conduct of an Attorney following the death of the Donor

 Although Enduring Powers of Attorney have now been replaced with Lasting Powers of Attorney, in which a Donor can be much more specific and restrictive when granting the Attorney certain powers, if an Enduring Power of Attorney was executed prior to the changes, it is still valid. Most Enduring Powers of Attorney are likely to be non – restrictive and therefore give the Attorney full power to deal with the financial matters of the Donor, both before and after he or she has lost capacity.

A recent comment made by a defendant Attorney to the executors of the deceased’s estate, when trying to explain a deficit of several hundreds of thousands of pounds in the deceased’s estate is: “But I thought I could do what I wanted with the money” 

As litigators, the question with which we are concerned is: on the death of the Donor, how can the executors of the estate ensure that the Attorney has acted correctly and within his powers?

The main duties and responsibilities of an Attorney, appointed by an Enduring Power of Attorney, are as follows:

  • To always act in the best interests of the Donor and consider their needs and wishes as far as possible;
  • To not take advantage of the Donor’s position and gain a benefit for themselves;
  • To keep the Donor’s money and property separate from their own;
  • To keep accurate accounts of their dealings with the Donor, this includes keeping all receipts and bank statements and all assets and accounts should remain in the Donor’s name;

 

If there is any reasonable suspicion on the death of the Donor that his or her estate is significantly less than expected and an Attorney has been handling the day to day financial affairs of the Donor, the personal representatives of the Donor’s estate need to consider whether the Attorney has acted in accordance with the above duties.

The personal representatives should request from the Attorney, at the outset, copies of all bank statements, receipts, notes of any requests from the Donor, supporting documentation for any purchases made and any other documentation specific to the Donor and his or her assets.

If the personal representatives are concerned with the conduct of the Attorney or require an explanation of any suspicious or unexplained activity concerning the Donor’s accounts, this request should be made to the Donor immediately, followed by a full investigation made by the personal representatives to the estate.

Should the Attorney refuse to co-operate with the estate, the next stage of the process would be to instruct a solicitor; alternatively make an official complaint to the Office of the Public Guardian and request that an investigation is to be undertaken by it. Other avenues include pursuing criminal prosecution and considering a civil action against the Attorney for fraud.