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An Attorney exposed: a word of caution

There are important differences between a Lasting Power of Attorney (LPA) and a Deputyship which mainly concern the levels of supervision and reporting duties that are placed upon the appointed persons.

A Deputy is under a duty to complete an annual report on the anniversary of the order of appointment. The report must provide details of all decisions made, the people the Deputy has had contact with and all monies received and spent throughout the year. It is not unusual for the Office of the Public Guardian (OPG) to call the Deputy on receipt of the report to request additional information. The OPG may also send Visitors to the Deputy periodically to check that everything is in order and decisions are being made in P’s best interests.

By comparison, an Attorney appointed by an LPA is under no duty to report to the OPG on a regular basis and visitors are not sent out regularly to speak to the appointed Attorney.

This varying level of supervision by the OPG may lead people to believe that where an Attorney is appointed, as opposed to a Deputy, P is more vulnerable and at greater risk of financial abuse. However, the OPG are just as thorough in following up any concerns raised about an Attorney’s decision making and taking action where there are questions about whether the Attorney is acting in the best interests of P.

The recent decision in Re DP: Public Guardian v John Marney (2014) EWCOP 7, (2014) MHLO 69 demonstrates the OPG’s diligence in following up and acting upon allegations of financial abuse. This case is significant in that the Senior Judge ‘named and shamed’ the Attorney and argued that “Nothing JM has said, or which could sensibly be put forward on his behalf, provides any reason why, looked at from his perspective, he should be spared the consequences of his misbehaviour.”

This is a bold decision by the Senior Judge and demonstrates that not financial abuse will not be tolerated. Regardless of whether someone has been appointed as an Attorney or a Deputy, the Court will not hold back in making such misconduct known to the public. If you would like further advice about putting in place a Power of Attorney, please contact Caroline Featherby or a member of our Elderly Care team.