The remedies include:
A. Powers of the Court of Protection in Relation to Financial Abuse
The Court of Protection has wide powers to deal with financial abuse. Their powers relate to making an order in respect of a decision which the incapacitated person could make themselves, but for their mental incapacity.
This could include;
(a) an order prohibiting a specified person from having contact with the donor;
(b) an order enabling another person to bring proceedings on behalf of the donor for recovery in the civil courts and;
(c) an order appointing a deputy.
The High Court can also make freezing orders in relation to the donor’s accounts and property to prevent further disposal and make search orders in relation to the perpetrator’s property whilst investigations are ongoing.
B. Criminal Actions
If you report your suspicions to the police and they investigate, the alleged perpetrator(s) may be charged with a criminal offence if the Crown Prosecution Service (CPS) decides to prosecute.
The perpetrator(s) may also be prosecuted under the Proceeds of Crime Act 2002, which may result in orders for the property to be returned to the victim.
C. County Court Claims
Proceedings can either be brought by the victim (if they have mental capacity) or by someone on their behalf (known as a Litigation Friend). An Order must be made by the Court of Protection enabling someone to bring proceedings for recovery on behalf of the abused person.
Applications can be made to the court for recovery of funds and/or the setting aside of transfers of an asset which have been conducted under undue influence, duress or fraud.
There are two types of undue influence cases; actual and presumed undue influence. In cases of actual influence, the claimant must demonstrate with evidence that he entered into a transaction not of his own free will, but as a result of actual undue influence.
Presumed undue influence only requires the claimant to demonstrate that the relevant transactions appear so suspicious they require an explanation from the defendant. There must be a relationship of trust and confidence between the parties. Once this relationship has been established, the burden of proof then switches to the defendant to prove the transaction was not made under undue influence.
Unfortunately, a relative may only uncover transactions which raise suspicions after the death of a relative, during the administration of the estate.
There is a distinction between undue influence in relation to testamentary gifts (who receives what under the deceased’s Will) and undue influence in relation to lifetime gifts (gifts the deceased made before their death)
When considering lifetime gifts made by the deceased before their death, again the keys issues are actual undue influence and presumed undue influence.
The difficulty in these cases can be obtaining evidence to support a case. It will almost always be necessary to obtain bank statements, GP and hospital records and witness statements from friends and family members.
Sarah Young is an expert on dealing with all kinds of inheritance disputes, including advising on undue influence cases. She has experience of bringing and defending claims involving undue influence and will handle your case with sensitivity.
For more information please call 0843 289 4640 or e-mail Sarah.