Lasting powers of attorney and deputyship orders let someone manage another person's money and property when they cannot. Most attorneys and deputies act properly, but where money has gone missing, gifts have been made that the person would not have wanted, or an attorney is not acting in the person's best interests, there are ways to investigate and put matters right.
During the person's lifetime
Under the Mental Capacity Act 2005, attorneys and deputies must act in the person's best interests, keep their money separate and keep accounts. Their power to make gifts is limited to gifts on customary occasions (such as birthdays or religious festivals) or to charities the person supported, and only where the gift is reasonable given the size of the estate.
If you are concerned:
- the Office of the Public Guardian can investigate concerns about an attorney or deputy;
- the Court of Protection can require an attorney to provide accounts, revoke a lasting power of attorney, or remove and replace a deputy; and
- a civil claim may be possible to recover money that has been misused.
After the person has died
An attorney's authority ends on death. The personal representatives of the estate can require an attorney to account for how they dealt with the person's money and can bring a claim against them for losses caused by a breach of their duties. Beneficiaries who suspect that an estate has been depleted should raise this with the personal representatives, or take advice on their own position.
Lifetime gifts and "deathbed gifts"
Gifts made during someone's lifetime can sometimes be set aside, for example where:
- the person lacked the mental capacity to make the gift;
- the gift was obtained by undue influence, which the law may presume where there was a relationship of trust and confidence and the gift calls for an explanation; or
- a claimed "deathbed gift" (donatio mortis causa) does not meet the strict legal requirements, which the courts apply narrowly.
These claims often depend on bank records, care notes and medical evidence, so it is important to act quickly to preserve evidence.
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Frequently asked questions
Can an attorney give money to themselves or their family?
Only within narrow limits. An attorney can generally make gifts on customary occasions or to charity, and only where the gift is reasonable given the size of the estate. Larger gifts need the Court of Protection's approval.
Who do I contact if I think an attorney is misusing money?
You can report concerns to the Office of the Public Guardian, which can investigate. We can advise on the evidence, an application to the Court of Protection and any claim to recover money.
