Cautionary tales of the importance of choosing your attorneys wisely

Appointing an attorney under a Lasting Power of Attorney (LPA) is one of the most important legal decisions you can make. Your chosen attorney will have significant authority to manage your property and financial affairs or make decisions about your health and welfare, so it is essential to select someone you trust completely.

Careful selection

When choosing an attorney, it is important to consider more than just your personal relationship with them. You should think carefully about:

• trustworthiness and integrity
• reliability and organisational skills
• ability to understand and follow your wishes
• financial responsibility and stability.

While an attorney does not need to be financially sophisticated, they should be capable of managing money and property responsibly and acting in your best interests at all times.

If you are considering appointing more than one attorney, it is equally important to assess whether they can work together effectively, particularly if decisions may need to be made jointly or collaboratively.

Common risks when attorneys are poorly chosen

We regularly advise clients on issues involving the misuse of LPAs. Problems can arise not only from deliberate misconduct, but also from:

• lack of understanding of legal duties under the Mental Capacity Act 2005
• poor communication between attorneys
• conflicts of interest
• failure to act in the donor’s best interests
• inadequate record keeping or financial management.

In serious cases, these issues can lead to investigations by the Office of the Public Guardian (OPG) or intervention by the Court of Protection; as well as leading to possible criminal convictions.

The following case highlights the real risks involved and why careful selection of attorneys is essential.

Case study: breakdown between attorneys

The Court of Protection case VX v KX & Ors [2024] EWCOP 78 demonstrates the consequences of appointing attorneys who are unable to work together.

The donor, a 100-year-old woman with dementia, had appointed two of her six children as attorneys under an LPA for Property and Financial Affairs, and three others as attorneys under a Health and Welfare LPA, all acting on a joint and several basis.

Despite there being no evidence of financial mismanagement, serious concerns arose due to a breakdown in communication between the attorneys. One attorney excluded the others from decision-making and prevented communication with healthcare professionals, leading to disputes about what was in the donor’s best interests.

As a result:

• the Health and Welfare LPA was revoked by the Court of Protection
• decision-making authority reverted to the local authority
• the Court indicated that a Panel Deputy should be appointed to manage the donor’s property and financial affairs, and that the existing attorneys should disclaim their appointment at the earliest opportunity.

This case highlights the key point that even where attorneys are appointed jointly and severally, they are still expected to consult one another and act collaboratively. A failure to do so can result in the LPA being revoked entirely.

It also demonstrates how disputes between attorneys can ultimately leave the donor in a vulnerable position, with decisions taken out of their chosen representatives’ hands.

Financial abuse by attorneys: a growing concern

There has been an increasing number of reported cases involving financial abuse and fraud by attorneys acting under LPAs.

In one recent case, an individual was convicted in a crown court after misappropriating more than £140,000 from a parent while acting as an attorney under a Property and Financial Affairs LPA. The funds were used for personal expenses, including home improvements, holidays and day-to-day spending.

Although the individual claimed the withdrawals were authorised, this was disputed and the case ultimately resulted in criminal conviction.

This example reflects a wider trend. We are seeing a growing number of situations where attorneys:

• use funds for personal benefit
• exceed the authority granted under the LPA
• fail to keep proper financial records
• disregard the donor’s wishes and preferences.

Even where there is no obvious financial loss, an attorney may still be in breach of their duties if they fail to comply with the Mental Capacity Act 2005 or do not act in the donor’s best interests.

The role of the Office of the Public Guardian and Court of Protection

The OPG and the Court of Protection take concerns about attorney conduct extremely seriously.

Where misuse is suspected, the OPG has the power to:

• investigate attorneys
• apply to the Court of Protection to remove or restrict an attorney
• refer serious cases to the police for criminal prosecution.

There has been a clear increase in enforcement action, with more cases involving fraud, theft and financial abuse by attorneys being successfully prosecuted. This reinforces the importance of choosing attorneys who not only understand their responsibilities but are fully capable of carrying them out lawfully and ethically.

Key considerations when choosing an attorney

To reduce the risk of disputes or misuse, we recommend that you carefully consider:

• whether your chosen attorney(s) can act honestly and transparently
• their ability to keep clear financial records
• their willingness to act in your best interests at all times
• whether multiple attorneys can communicate and cooperate effectively
• whether appointing a professional attorney may be more appropriate in complex cases.

Making the right choice at the outset can prevent significant legal, financial and emotional difficulties in the future.

The Birketts view

Our specialist Court of Protection lawyers can advise you on:

• preparing LPAs
• advising on the choice of suitable attorneys
• resolving disputes between attorneys
• investigating concerns about misuse of an LPA
• applications to the Court of Protection.

We provide clear, practical advice to ensure your affairs are protected and your wishes are respected.