I have discovered that my relative’s estate is worth significantly less than I thought it would be and I suspect someone has been helping themselves to his money, what can I do?
Unfortunately the answer to this question is not straightforward! There are often disputes that arise between beneficiaries who discover there have been transactions that occurred during the lifetime of the deceased which raise suspicions.
You need to establish whether the transaction was a gift or a loan. If it was a loan, then the recipient should pay the money back into the estate. You would probably need to establish documentary evidence of it being a loan – for example a contract, or a charge over property.
If the property was given as a gift, your options are more limited because it is the general rule that people can do as they wish with their own assets during their lifetime. You would need to establish that the gift was invalid. This could be by establishing that your relative didn’t have mental capacity to make the gift.
Another way of establishing that a lifetime gift was invalid may be through undue influence. Establishing undue influence depends upon the relationship between the donor and recipient and whether it is a transaction that calls for an explanation. You will need to seek expert legal advice about whether you may have a valid case.
Finally, a lifetime gift may be challenged under the doctrine of ‘deathbed gifts’ (donatio mortis causa to give it the proper legal name!) This is a gift which only takes effect on the deceased’s death, is made in contemplation of death, and the deceased must part with the gift or deliver it to the recipient absolutely. If any of these conditions are not met, the gift can be challenged.
In all cases if you have any suspicions, you should report your concerns to the personal representatives dealing with the administration of the estate. They then have a duty to investigate your concerns as they are required to collect in all assets of the estate.
I think someone is financially abusing my relative – how can I stop this?
Sadly, cases of financial abuse are on the increase. With an ageing population there are many more vulnerable adults who are risk of financial abuse.
If you suspect a crime has been committed, such as theft, you must report your concerns to the police. Secondly, it may be worth speaking to your Local Authority adult social services. All Local Authorities should have a Safeguarding Adults Board as required by the Care Act 2014. The board has to make appropriate enquiries when they reasonably suspect an adult in need of case is at risk of abuse.
The course of action that you need to take will depend on whether your relative has the mental capacity to deal with their own affairs.
If they do have capacity, they may wish to consider an Attorney. They may want to take independent legal advice on who to appoint as the attorney.
If they do not have capacity, you should consider whether it is appropriate to apply to the Court of Protection to be appointed as a deputy to deal with their affairs. The Court of Protection has wide powers to protect someone who lacks capacity, including prohibiting a named person from contacting someone who lacks capacity.
The Court of Protection can also authorise the Office of the Public Guardian to investigate suspicious activities.
My elderly relative has an Attorney/ Deputy to deal with their finances, but I think they are abusing this power, what should I do?
If there is a registered Power of Attorney or a Deputy appointed, then concerns should be reported to the Office of the Public Guardian. They have a duty to investigate your concerns, and where necessary have a range of powers to order the attorney or deputy to account for their actions.
The powers of attorneys or deputies to make gifts during a person’s lifetime are limited. Gifts can only be made on ‘customary occasions’ and must pass an ‘objective reasonableness’ test. In reality this means an attorney or deputy should only give gifts to those people who the donor would have chosen to give a gift of his own accord and should be of an appropriate value. This would very much depend on the circumstances of the case.
If you have concerns about someone abusing their power, seek specialist legal advice. We can set out on your concerns on your behalf and report these to the OPG.
In addition to any investigations made by the OPG, we can also advise on whether it is appropriate to commence civil proceedings to recover the money and/ or have transactions set aside. If the victim does not have capacity we can advise on who is most appropriate to act as their litigation friend.
I am an attorney or a deputy facing an investigation by the Office of the Public Guardian; what should I do?
Attorneys have a number of duties and responsibilities towards their donor. These include, although are not limited to;
- A duty of care to carry out the donor’s instructions
- Not to take advantage of the position of the attorney
- A duty of good faith and confidentiality
In addition, property and welfare attorneys and deputies have a duty to keep accounts and to keep the money separate from their own.
If you receive a letter from the OPG advising you that they are investigating your actions, this can be a daunting prospect. You should act quickly upon receipt of the letter, as you may be asked to produce certain documents to the OPG within a certain timeframe.
The consequences of being found to have abused your powers as an attorney or deputy could be far reaching, including being suspended, being reported to the police where the OPG feel a crime has been committed, or as a deputy your security bond could be called in.
Ridley & Hall have experience of representing attorneys who are asked to account for their actions as a registered attorney. If you are under investigation by the OPG, contact us today for expert advice and representation on 01484 538421 or freephone on 0843 289 4640.