The creation of a power of attorney is a good way of making sure that your affairs are dealt with by a responsible person if you are unable to manage them yourself. However, when the choice of attorney is a poor one, many difficulties can arise, as a recent case shows.

It involved powers of attorney created in 2010 by a woman who was then 68 and who had developed dementia but was still mentally capable. She appointed one of her daughters and one of that daughter’s sons to act as her attorneys by creating two Lasting Powers of Attorney (LPAs), one in respect of her property and financial affairs and one in respect of her health and welfare.

A few months after the creation of the LPAs, the attorneys applied to the Court of Protection to obtain registration of the LPAs so that they could begin to act on the woman’s behalf.

The county council that deals with the woman, who lives in sheltered housing, became increasingly concerned that, in exercising their financial powers, the attorneys were ‘abusing’ the woman both ’emotionally and financially’.

Legal argument followed about the fitness of the attorneys to act. When the Court revoked their right to do so, they challenged the decision.

The judge, in considering how the attorneys had used an Internet banking account belonging to the woman, said, “It is a salient reminder of how easy it is for someone unscrupulous, who is Internet savvy, to dupe an elderly person who is clueless about such matters.”

When a power of attorney is entered into, it is important that the person or persons appointed as attorneys discharge their function responsibly. Although they can be removed if they fail to do so, this is only usually possible when the inappropriate behaviour comes to the notice of someone else who decides to act. By that time, it may be too late to prevent money or other assets being misappropriated.

One safeguard is to appoint a professional person to act as co-attorney. They can then oversee the activities of the other attorneys to help prevent an issue arising in the first place.


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