Specific Evidence Not Needed for Attorney to Stand Trial for Fraud

The crucial importance of appointing a reliable person to act as your attorney, to manage your affairs should you no longer be able to do so yourself, was illustrated yet again by a recent case in which a man's attorney was ordered to stand trial for fraud.

The man was born in 1926 and had two surviving children. He had created a lasting power of attorney (LPA) naming his daughter as his attorney when he began experiencing symptoms of dementia in 2009. His condition deteriorated and the LPA was registered in 2010.

In late 2010, the man went to live with his daughter, then subsequently moved into a care home in 2011. His daughter's children and friends were then allowed to live in his house rent free.

The daughter did not separate her father's income from her own. When her brother gained sight of his father's bank statements, he contacted the Office of the Public Guardian (OPG), which commenced an investigation.

The investigation showed that the man's investment bonds had been cashed in and paid into his daughter's account, that there was no separation of their finances and that she had made a number of withdrawals of his funds which could not be shown to be in his best interests. The money had been spent on the kitchen of her home and on repairs to her car.

She was indicted to stand trial for fraud. She opposed this on the ground that it could not be shown that the funds (totalling £75,000) she had withdrawn from her father's account had been applied for her own benefit rather than his. She claimed that in these circumstances, to proceed with a criminal trial would be an abuse of the legal process.

However, the court accepted that the sums were so large, given the period concerned, that proceeding with a criminal trial was warranted.

The case raises several practical points for holders of powers of attorney. The first is to make sure that bank accounts are segregated and that appropriate records are kept of expenditure on behalf of the person who has given the power.

Secondly, even if you are managing the affairs of a person who you know will leave their estate to you, you are not entitled to 'help yourself' in any way to their assets.

Thirdly, the OPG takes allegations of improper conduct by attorneys very seriously and is by no means afraid to be the instigator of criminal proceedings.