Deputies, taxis and dining out after visits
In some ways this case is unremarkable but every instance of financial abuse is sad, particularly so when it is perpetrated by those a parent should be able to trust. I get a sense here that because Alan had gone into a home, his daughters no longer saw his assets as his.
In this particular case, Alan’s estate consisted of his house worth £152,000 less an equity release charge of £23,000. His annual income was just under £10,000 a year and his expenditure on care fees was £42,000.
Both daughters had been appointed initially as joint and several deputies for property and financial affairs. However, the OPG raised concerns because the deputies’ annual report for 2013/14 referred to loans that they had made to themselves. Sarah, who was unemployed and partially sighted, confirmed that she had lent herself £10,604.07 and was in the process of paying it back. Two particularly large payments, £5,700 in all, was legal fees for her divorce. Alison, the part time bookkeeper and exam invigilator who suffered from Multiple Sclerosis, had paid herself £5,081 during the reporting period but repaid £2,330.
In addition to that, Sarah had also obtained £4,400 in cash withdrawals from ATMs, and had made debit card payments of:
- £895 to the Cross Keys pub;
- £125 to the Rose & Crown pub; and
- £4,083.36 to various stores such as Tesco, Matalan, Next, Pets at Home, Boots, Asda, the Co-Op, New Look, and so on.
In a rather creative attempt to extract more money from Alan, the deputies claimed gifts of £1,920 and expenses of £5,400 from Alan’s funds during the 2014/15 year. They said that these were travelling expenses to and from and the care home approximately 20 miles round trip by taxi two or three times weekly. Unfortunately for them the OPG phoned the manager of the care home who checked their records and confirmed that there had only been three visits in the last twelve months.
In an attempt to rescue the situation, Alison sent an email to the OPG in which she said, “In accordance to the COP we are allowed a present fund (ie; Christmas, birthdays etc) which is £960 per year and expenses for visiting, of which the COP said we are allowed to add in a meal afterwards, £2700 per year, so totalling these two amounts I could have had £3660 from the account. … The sum of £1920 is the gifting amount for both of us and the sum of £5400 is the total deputy expenses.”
I must admit that I have not come across that in any of the textbooks I have read! Not surprisingly the OPG suggested a professional deputy.
Sarah did not respond but Alison opposed the application. She said,
“I oppose the application for myself (not my sister) as any monies I have borrowed have been repaid and the accounting shows this. Since I have taken sole control of my father’s bank account (over the past year) there have been no discrepancies.
In any loving family situation a parent would help his or her children out of money situations, hoping they would be repaid, which I have done. As for my sister, they would have helped her but not to the extent she has taken it to”.
She suggested that she should be joint deputy with an accountant of her choice. Alison’s husband then waded into the proceedings. Understandably he set out the difficult position the family were in but he also took the opportunity to blame Alison’s sister, the Court of Protection and the Office of the Public Guardian for the problems.
The OPG opposed Alison remaining as deputy for the following reasons;
“(a) Alison loaned a total of £4,633.53 to herself from Alan’s estate without the authority of the court.
(b) These funds have not been repaid in full as Alison believes she has an entitlement to £3,660 annually for gifts and expenses which she has offset against this debt. There is no evidence that an entitlement of £3,660 annually for this purpose has been authorised by the court.
(c) Alison signed a COP4 declaration dated 11 January 2012 which included an undertaking that she will not use her position for her own personal benefit and should therefore have been aware of the law regarding her role and responsibilities.
(d) Alison has provided spreadsheets and breakdowns of expenditure but has not complied with the Public Guardian’s requests for bank statements for 2014-2015.
(e) The Public Guardian has concerns that £5,400 deputy expenses claimed for 2014-15 may not be in Alan’s best interests; and
(f) Alison has not kept receipts in accordance with paragraph 3(a) of the court order dated 1 March 2012.”
They were also concerned that there may be a further breach of Alison’s duties as deputy as she seemed to have delegated her functions to her husband.
There was a further twist at the hearing when Alison and her husband did not attend. Senior Judge Lush said;
“I had expected that Alison and her husband would attend, but they didn’t, and I asked the usher to ring the mobile phone number that Alison had given in her acknowledgment of service. Her husband, Nathan, answered the phone and said that they were out of the country; that they had been told in a letter from the court that they were not supposed to attend the hearing; and that Alan is very ill and only has a few days left.
I didn’t believe that any member of the court staff would have written to the respondents telling them that they were not supposed to attend a hearing, so I checked the correspondence file. A standard, one-line letter had been sent to all parties on 21 October 2015 stating “Please find enclosed order made/amended by Senior Judge Lush on 9th October 2015.” The order itself stated that: “There shall be a disposal hearing before Senior Judge Lush in Court 24 at First Avenue House, 42-49 High Holborn, London WC1V 6NP at 11am on Tuesday 10 November 2015 with a time estimate of one and a half hours.”
Unsurprisingly Senior Judge Lush felt that both Alison and Sarah should be removed as deputies in favour of a professional deputy. Alison objected and said, “since I have taken sole control of my father’s bank account (over the past year) there have been no discrepancies.”
Senior Judge Lush’s findings were:
“I disagree. There are considerable divergences between the truth and reality. These include the following:
(a) Alison has clearly taken advantage of her position for her personal benefit.
(b) There is no evidence to corroborate her assertion that the loans have been repaid.
(c) She has failed to produce bank statements, despite requests to do so by the OPG, and is in breach of her duty under the court order “to keep statements, vouchers, receipts and other financial records.”
(d) I cannot accept the deputies’ combined expenses claim for £5,400 in the 2014/15 report for “travelling expenses to and from care home approx 20 miles round trip by taxi two-three times weekly,” when the care home manager states that, according to her records, the deputies have only visited their father three times in the last twelve months.
(e) The idea that “in accordance to the COP we are allowed a present fund which is £960 per year” is utter nonsense, as is Alison’s statement that “the COP said we are allowed to add in a meal” after visiting.
(f) I do not accept that Alison received a letter from the court telling her that she was not supposed to attend the hearing.
Alison described herself as a part-time bookkeeper and one might reasonably have expected a higher standard of professionalism from her.
Alison has shown that she cannot be trusted to manage Alan’s property and affairs, and to retain her as a deputy, even acting jointly with an accountant, would undermine the OPG’s role in supervising deputies appointed by the court”.
Comment
I never cease to be amazed by the inventiveness of those intent on financial abuse and the rules they come up with to justify pillaging the estates of their loved ones. In this case though all of the hallmarks which generally alert us to financial abuse were not there, the visits were infrequent and that did not stop the deputies claiming for three taxi trips per week plus a meal after they had visited. Perhaps their dad would have liked to go out for that meal with them? Unfortunately he did not seem to be their priority.
November 2015
http://www.bailii.org/ew/cases/EWCOP/2015/73.html
