Cases involving Attorneys acting outside their authority, through excessive and inappropriate gifting, or poor investment decisions are becoming very common. The Court of Protection has laid down helpful parameters for Attorneys on matters such as investing as an Attorney or Deputy and making gifts.
In the case of Re Buckley, the Attorney invested £90,000 of the Donor's money in a reptile-breeding business, which subsequently failed. Senior Judge Lush said there was a big distinction between managing your own money and someone else's, if that money was managed under a Power of Attorney, i.e. you could make stupid investment choices for yourself but not when acting as an Attorney for someone else! This was because Attorneys are under an obligation to act in the donor's best interests and hold a fiduciary position, similar to that of a trustee, which obliges them to exercise reasonable skills and care when investing a donor's assets. This duty of care is even greater if the Attorney has specialist knowledge of experience.
In the case of GM (2013), 2 nieces of the donor made gifts to themselves, and others, from their aunt's money totalling £277,811 including Rolex watches, designer handbags and perfume, in addition to large cash gifts to family and friends. They were required to repay the amount of £204,459.74, and the Court of Protection confirmed that Attorneys and Deputies should appreciate they have very limited authority to make gifts; this is deliberate, to avoid Attorneys being tempted to use their powers in ways which are not for the benefit of the Donor. An Attorney or Deputy can apply to the Court of Protection to make a more extensive gift, but the paramount consideration must be whether the gift is in the Donor's best interests.
Attorneys choosing to invest money or make gifts must be aware of their roles and responsibilities under the Mental Capacity Act 2005 and consider and obtain proper advice. At Clapham and Collinge we can make sure you are acting correctly as an Attorney or a Deputy and can give you the proper advice to protect yourself and the person you are acting for.
For more information, contact our Norwich branch on 01603 693500 or email info@clapham-collinge.co.uk or contact our Sheringham branch on 01263 823398 or email sherinfo@clapham-collinge.co.uk
