If you are stuck in such a situation, here is what to do.

A case was recently brought to our attention involving Ms. Davies, a healthcare professional from the fictional city of Westerbridge. She expressed deep concern over the behaviour of her brother, Mr. Smith, towards their elderly mother, Mrs. Smith. Mr. Smith has a history of aggressive and intimidating behaviour, which has reportedly worsened since their father’s passing over a decade ago. While not physically violent, his conduct, such as shouting and throwing objects, creates an environment of fear.

The issue escalated when Mr. Smith compelled their mother to audit past financial gifts to both children. This revealed he had received approximately £35,000 more than his sister, a sum he insisted be written off, to which their intimidated mother agreed. Later, when Ms. Davies experienced a period of ill health requiring her to take time off work, her mother offered to provide financial support. Upon discovering this, Mr. Smith demanded he receive an equivalent amount, shouting, “every pound you’ve had, I’m getting!” Their mother, who is in her early 70s and lives with a progressive neurological condition, initially capitulated out of fear before secretly continuing to support her daughter as promised.

Ms. Davies is worried that her brother will either coerce their mother into altering her will to his exclusive benefit or, should her mother’s cognitive abilities decline, misuse his authority as an attorney to transfer her assets to himself. Both Ms. Davies and Mr. Smith are appointed as their mother’s attorneys for property and financial affairs, with the power to act “jointly and severally.”

Advice in such cases

This situation involves complex family dynamics and significant legal principles surrounding the protection of vulnerable adults. The key is to act proactively but carefully to safeguard the parent’s interests.

• Understand the Power of Attorney: A “joint and several” Lasting Power of Attorney (LPA) means that either attorney (Ms. Davies or Mr. Smith) can make decisions independently of the other. One does not need the other’s consent to act.
• Attorney’s Fiduciary Duty: Any person acting as an attorney has a strict legal duty to act in the donor’s (the mother’s) best interests, keep their finances separate from their own, and maintain accurate accounts. They must not profit from their position. Using the LPA to pay oneself large sums of money is a serious breach of this duty.
• Document Everything: Keep a detailed, contemporaneous diary of all incidents. Note dates, times, what was said or done, and who was present. Retain any relevant emails, text messages, or correspondence. This documentation is invaluable as evidence.
• Report Concerns: The primary body for overseeing the actions of attorneys in the UK is the Office of the Public Guardian (OPG). You can raise concerns with the OPG, which has the power to launch an investigation.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of 100 GBP to 400 GBP depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored.

Applicable Sections of Law

Several key pieces of UK legislation are relevant in these circumstances:

• Mental Capacity Act 2005: This Act governs decision-making on behalf of adults who may lack the mental capacity to make their own decisions. It outlines the duties of attorneys and the principles they must follow, primarily the duty to act in the donor’s best interests.
• The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007: These regulations provide the detailed framework for the creation, registration, and operation of LPAs, as well as the investigative powers of the Public Guardian.
• The Care Act 2014: This Act defines financial or material abuse as a specific category of abuse. Local authorities have a duty to investigate where they suspect an adult with care and support needs is experiencing, or at risk of, abuse or neglect.
• The Fraud Act 2006: If an attorney dishonestly abuses their position with the intent to make a gain for themselves or cause a loss to the donor, they could be committing a criminal offence of fraud by abuse of position.

If you are the complainant

If you are the sibling concerned about potential financial abuse, you should take structured steps. Start by documenting all concerning behaviour and financial transactions. You should then seek legal advice from a solicitor specialising in contentious probate and Court of Protection matters. The most direct action is to file a formal concern with the Office of the Public Guardian (OPG) using form OPG130. The OPG can then investigate the other attorney’s conduct. If the OPG finds evidence of abuse, it can apply to the Court of Protection to have the attorney removed.

If you are the victim

If the parent (the donor of the LPA) still has mental capacity, they hold the power. They can seek independent legal advice and can revoke the existing LPA at any time and create a new one, perhaps appointing only one child or a professional. If they feel they are being abused or defrauded, they can report the matter directly to the police and the OPG themselves.

How the police behave in such cases

Financial abuse of the elderly is a serious matter that the police are increasingly trained to handle. If a report is made, especially one supported by evidence of suspicious financial activity, they are likely to open an investigation under the Fraud Act 2006. This would involve interviewing all parties, including the mother (if she is able to communicate her wishes), and obtaining bank records and other financial documents. The police will often work in conjunction with the OPG and local authority Adult Social Services.

FAQs people normally have

• What does my brother being a ‘joint and several’ attorney mean? It means he can legally access and manage your mother’s finances without your knowledge or consent. He can make transactions, sell property, and manage investments alone.
• Can my brother force my mother to change her will? No one can force a person to change their will. A will must be made voluntarily. If a will is changed due to coercion or undue influence, it can be challenged in court after the person’s death and declared invalid.
• Can I stop my brother from using the Power of Attorney? You cannot unilaterally block him. However, by reporting your concerns to the Office of the Public Guardian, you can trigger an official investigation. If the OPG finds wrongdoing, it can apply to the Court of Protection, which has the authority to suspend or permanently remove your brother as an attorney.

What evidence is required?

Strong evidence is crucial. This includes:

• Bank statements and financial records showing suspicious withdrawals or transfers.
• A detailed log or diary of events, noting coercive or intimidating behaviour.
• Copies of any emails, letters, or text messages that support your concerns.
• Witness statements from anyone else who has observed the behaviour.
• A formal statement prepared with a solicitor outlining the history of the situation.

How long will the investigation take?

Timelines can vary significantly. An investigation by the Office of the Public Guardian can take several months to complete, depending on the complexity of the case. If the matter is referred to the police, their investigation will proceed on its own timeline, which can also be lengthy. If an application is made to the Court of Protection, proceedings can take anywhere from a few months to over a year.

Advocate Sudhir Rao, Supreme Court of India