Hello, should attorneys appointed in a property and financial affairs LPA investigate/do they have a duty to investigate historical financial abuse by a family member prior to the attorneys being appointed?
My clients have looked through bank statements for the donor a couple of years prior to their appointment as attorneys, and there are unexplained payments out. They are aware that a family member had access to the donor’s bank account and a bank card at that time. The behaviour of this family member has also aroused the attorney’s suspicions, as the family member was put out when the two attorneys were appointed. It is likely the donor had mental capacity at the relevant times, but would have been vulnerable as her husband had died just before the disputed transactions took place.
Should the attorneys investigate these unexplained payments and what actions can they take?
I think they have a right to investigate but in reality it all comes down to proving there was coercive control or outright theft which they will really struggle with by the sounds of it. If the donor has a social worker they may well be able to help in this regard.
I think it would be more relevant in respect of when the Donor passes away. Were these gifts or essentially and advancement of their (if any) entitlement under the Will.
Hope this helps.
Rachael Waring TEP
JWR Law (Consultant)
Thank you very much Rachael, that is helpful. Yes I think they will struggle to prove there was coercive control or theft. The attorneys are going to write to the firm that has drawn up the Will, although it is believed that the parents of both attorneys are the executors so as you say the executors can investigate what has happened as they are aware of the circumstances too.