When power of attorney turns ugly
Hegarty Solicitors’ Karon Walton discusses dementia, disputes and the thorny issue of family conflict
Dementia is a growing condition. It is predicted that one in three people born in the UK this year will develop dementia in their lifetime. There are currently 850,000 people in the UK living with dementia, a number likely to pass a million by 2025. Since the increase in dementia and the need for people to make decisions on behalf of others, there has been a growing issue with disputes. Arguments can include how finances are being administered by the attorneys, or perhaps decisionmaking around where a person is to be cared for or where they live. Family dynamics have changed in the last 40 years, with split family situations and family members living much further away or perhaps abroad.
This is leaving those more local to support the individual, and these people will probably take control of day-to-day arrangements. This can cause concern for the person living away, due to perhaps them feeling excluded or just not really understanding what is going conflict can arise. If you create a lasting power of attorney, either financial or for health and welfare, then consideration should be given as to whether that person would act with integrity and honesty.
Unfortunately, there is evidence that people do not always do so and there has been a steady increase in reports to The Office of the Public Guardian (OPG), who oversee the supervision and registration of powers of attorney, around potential allegations of abuse of attorney powers. Karon Walton Head of Court of Protection at Hegarty Solicitors explains: ‘There is no doubt that there is an increase of reports of financial abuse, certainly within the last few years. While the majority of them are most certainly without any foundation, there are cases where it is clear abuse has occurred.’ In circumstances where there has been abuse, the OPG will seek to remove the attorney and look to the Court of Protection to appoint a deputy to take over, which could be a professional deputy such as a solicitor. In such circumstances where a power of attorney hasn’t been made and where capacity is lost, then someone will need to be appointed by The Court of Protection to act for you as a deputy. This is made by way of an application to the court to be made a deputy, usually by a family member.
Karon says: ‘I have also seen a growth in applications being made where other family members have objected to the proposed deputy, due to family conflict.’ It is crucial to carefully consider who should be making an application and who would be the most appropriate person. Early recognition of potential conflict can stop a lot of hurt and damage to families if this step is undertaken at the very beginning, and undoubtedly legal advice can help to guide families in the right direction. ‘Some of the most difficult cases I have had are where a case has gone to court and the parties have not taken any legal advice,’ adds Karon. ‘They can at times get themselves into a bit of a mess. Not only can it delay matters and bring more upset and argument into proceedings but certainly it will not find favour with the Judge who is determining the case.’
If you have any contentious disputes around powers of attorney or Court of Protection, then seek early legal advice from a specialist Court of Protection lawyer who can assist in bringing the matter to resolution.
To find out more about about Court of Protection issues visit www.hegarty.co.uk/courtofprotection. To speak to Karon Walton about powers of attorney or Court of Protection issues call 01733 295557 or email
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