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Can I prove my sister’s financial abuse?
Partner Samara Dutton responds to a Financial Times’ reader on proving financial abuse of an elderly relative.
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Published 15 June 2023
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Samara Dutton
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The FT reader suspects their sister of financially abusing their father, who has dementia. The sister obtained a lasting power of attorney (LPA) and has been going on expensive holidays while showing no effort to arrange care for their father.
Financial abuse of this nature is suspected to be widespread and often carried out by family members. On these facts, a sensible first step would be to speak to your sister. However, in some circumstances, it is better not to alert a potential abuser to your suspicions while carrying out further investigation.
If your father has made gifts to your sister while lacking capacity, those gifts would be void and your sister should repay them. If she has been using the LPA to make gifts to herself, such gifts (over £3,000) are expressly forbidden by the Mental Capacity Act, and should, again, be repaid. As such, if your sister cannot adequately explain her recent spending, you may wish to seek the revocation of the LPA so she no longer has control over your father’s assets.
You can apply to the Court of Protection for this, but the court would require more than mere suspicion. You will either need to collate more evidence — try speaking to his friends, neighbours or others involved with his care — or you could refer the matter to the Office of the Public Guardian (OPG).
The OPG is responsible for supervising acting attorneys and ensuring they carry out their duties properly. It no longer requires significant evidence of wrongdoing upfront and what you have described should be sufficient to prompt a formal investigation of your sister. This will include obtaining copies of your father’s bank statements and asking your sister about any unusual transactions. If, following investigation, the OPG shares your concerns, it will make its own application to the court to revoke the LPA.
Bear in mind that if the LPA is revoked, alternative provision will be required, (assuming your father lacks capacity to make a new LPA). Most likely a deputy will be appointed by the court. You, or another family member or friend you trust, may ask for the role, but it can be onerous and you will need to report annually to the OPG. Alternatively, a professional such as a solicitor can be appointed.
For more information, visit our trust & estates disputes page.
This article was first published on the Financial Times in June 2023.
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Can I prove my sister’s financial abuse?
Partner Samara Dutton responds to a Financial Times’ reader on proving financial abuse of an elderly relative.
Published 15 June 2023
Associated sectors / services
Authors
The FT reader suspects their sister of financially abusing their father, who has dementia. The sister obtained a lasting power of attorney (LPA) and has been going on expensive holidays while showing no effort to arrange care for their father.
Financial abuse of this nature is suspected to be widespread and often carried out by family members. On these facts, a sensible first step would be to speak to your sister. However, in some circumstances, it is better not to alert a potential abuser to your suspicions while carrying out further investigation.
If your father has made gifts to your sister while lacking capacity, those gifts would be void and your sister should repay them. If she has been using the LPA to make gifts to herself, such gifts (over £3,000) are expressly forbidden by the Mental Capacity Act, and should, again, be repaid. As such, if your sister cannot adequately explain her recent spending, you may wish to seek the revocation of the LPA so she no longer has control over your father’s assets.
You can apply to the Court of Protection for this, but the court would require more than mere suspicion. You will either need to collate more evidence — try speaking to his friends, neighbours or others involved with his care — or you could refer the matter to the Office of the Public Guardian (OPG).
The OPG is responsible for supervising acting attorneys and ensuring they carry out their duties properly. It no longer requires significant evidence of wrongdoing upfront and what you have described should be sufficient to prompt a formal investigation of your sister. This will include obtaining copies of your father’s bank statements and asking your sister about any unusual transactions. If, following investigation, the OPG shares your concerns, it will make its own application to the court to revoke the LPA.
Bear in mind that if the LPA is revoked, alternative provision will be required, (assuming your father lacks capacity to make a new LPA). Most likely a deputy will be appointed by the court. You, or another family member or friend you trust, may ask for the role, but it can be onerous and you will need to report annually to the OPG. Alternatively, a professional such as a solicitor can be appointed.
For more information, visit our trust & estates disputes page.
This article was first published on the Financial Times in June 2023.
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- Trust & Estates Disputes
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Samara
DuttonPartner
Specialising in Contentious trusts & probate and Private wealth
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