Enduring powers of attorney (EPAs) are a vital means by which the financial affairs of those who lack capacity to make their own decisions can be efficiently managed. However, those who exercise such powers do not have carte blanche and a High Court ruling showed why it is usually wiser to employ a professional, rather than a loved one, to perform the task.
The case concerned a 95-year-old Alzheimer’s disease sufferer who required a very high level of care. There was no dispute that he lacked capacity to manage his own affairs and his youngest son had been entrusted with that role under an EPA.
The son, however, knew nothing of the duties and responsibilities he owed as an attorney. Although he was supposed to exercise his powers solely for his father’s benefit, he had, over a period of about six years, used his control over the latter’s bank account to make payments totalling £88,366 for his own benefit. Amongst other things, he used his father’s money to cover his own household expenses and to pay for a fishing trip, dental treatment and a speeding fine. Sums of money had also been withdrawn from ATMs without explanation.
After his brother, with whom he did not get on, raised concerns, he applied to the Court of Protection for retrospective authorisation of the payments. He pointed out that he had provided a great deal of gratuitous care for his father when he was being looked after at home and that the sums paid to him represented only a fraction of the costs that his father would have incurred in institutional care.
In ruling on the matter, the Court was critical of the son’s lackadaisical attitude to his duties as attorney. However, it accepted that he had been entitled to remuneration for the care that he gave his father and that the latter would probably have authorised most of the payments had he been able to do so. The Court granted retrospective approval of payments totalling £72,820. The balance would be treated as a debt to the father’s estate and would be deducted from the son’s inheritance.