Help! My aunt with dementia > has a solicitor attorney charging £760 an hour > and who has racked up £40k to date - now he wants to sell her flat at an £83k loss.
My aunt will be 90 this year but sadly has dementia which has led to her being in a home for the last two years.
She is a very proud lady who has tried so hard to carry on and deceive everyone that there wasn’t anything wrong.
My aunt made three Powers of Attorney, myself, her solicitor (who is also a friend) and a friend not long after her brother (my father) died 12 years ago.
At the time she told me what she was doing she also joked that it was in case she got dementia, which looking back on now makes me feel she had just been given her diagnosis.
Then four years ago she said she was transferring my power of attorney to my brother which I know if aunt had been in her right mind she would never have done.
Three years ago my brother had brain surgery which sadly has not improved his health and has left him incapable of dealing with everyday events like walking and washing. I have moved to Kent to stay with my brother and ensure his care is in order.
So it became my decision as to what happened to aunt, her flat, her possessions. Her solicitor had already taken over her bank account which confused aunt greatly but it also meant that my hands were tied regarding bills and food.
All this time I thought the solicitor was being a good friend to my aunt and helping me, little did I know that he is charging aunt £760 per hour.
I have had to deal with five or six different employees from the firm in the time my aunt has been in the home. Now there is the solicitor, another partner in the firm and a paralegal all dealing with my aunt’s affairs.
My brother has only received letters from the firm which include a very brief outline of what they ‘have done’ for my aunt and a bill which now totals over £40,000 for what I should have been doing and have done.
My aunt had a financial adviser who had been with her for over 20 years and when my aunt was going into a home I arranged for her adviser and solicitor to meet at aunt’s in order to sort out her financial portfolio, but not long after her solicitor dismissed her financial adviser and moved her money (£250,000) without contacting myself or my brother.
Her solicitor now wants to sell her flat at a loss of £83,000 which so far I have managed to get my brother to stop.
I want to move my aunt closer to us so relatives can visit without the four-hour round trip but this is proving very difficult as I do not have the power to go ahead.
How do I find out if my aunt had been diagnosed before changing the power of attorney to my brother? I feel like my aunt gave her solicitor power of attorney as a friend and now she is unable to understand he is charging her as a paying client.
Please advise me on how I can deal with the above issues.
Tanya Jefferies, of This is Money, replies: My heart went out to you when I read your letter asking us for help.
We had to cut your question due to its length, but it’s abundantly clear that you are trying to do your best for both your aunt and your brother in very difficult circumstances.
You have raised some very serious concerns about your aunt’s solicitor, in terms of how he initially got appointed her attorney and his subsequent actions.
It could be that everything he has done to date is above board and genuinely for her own welfare, even though you might take a quite different point of view and have some perfectly sincere objections.
In the circumstances, it sounds worth reporting your anxieties to the relevant authorities and then leaving it up to them to decide whether there has been any wrongdoing.
The body responsible for investigating whether people appointed as attorneys are acting properly is the Office of the Public Guardian.
We asked a lawyer who specialises in power of attorney for her take on your situation and the best way you could help your aunt right now.
She addresses the various questions you have raised, explains how the OPG works and gives contact details for its safeguarding unit below.
Fiona Heald, partner at law firm Moore Blatch, replies: I am sorry that you find yourself in this position.
As I understand it, a power of attorney was created which appointed yourself, your aunt’s solicitor and a friend.
It appears from your comments that you would all have been appointed so that any one of you could act. In law this is called jointly and severally.
What you do not specify is whether this power of attorney related to property and financial affairs or health and welfare decisions. I shall deal with both below.
What are the rules for creating and changing attorneys ?
It is not possible to change or ‘transfer’ just one attorney on either an Enduring Power of Attorney (one that was made before 1 October 2007) or a Lasting Power of Attorney (LPA) (one that was made after 30 September 2007).
What should have happened is that your aunt would have had to cancel the power which appointed you and you should have been informed of this.
A new LPA would have to have then been created appointing your brother, her solicitor and the friend. Any LPA made must be registered at the Office of the Public Guardian (OPG) before it can be used.
When making an LPA the person doing so (the donor) needs to decide who their attorneys should be, how they will act, when they will act, and provide them with any preferences and instructions.
Once it has been signed by the donor, a certificate provider must then sign.
This certificate provider must be someone who has known the donor for more than two years, or who has the relevant skill to know if someone understood what they were signing and no pressure had been brought to bear on them to sign it.
The latter can be a solicitor or a doctor or a specialist mental capacity assessor.
There is a long list of people who cannot act in this capacity including any of the attorneys or a family member.
Where an attorney is a solicitor it cannot be signed by any of their business partners or employees.
What is your role as a family member and former attorney for your aunt ?
It is clear that you are looking to do the best for your aunt, but as you are not one of the attorneys you must be careful with regards to how you act not only in making decisions for her but also instructing your brother on how he is to act.
Any solicitor acting as an attorney will listen to the family but at the end of the day they, like all attorneys must be satisfied they are making any decision for the donor in that donor’s best interests.
All attorneys of Lasting Powers of Attorney are accountable to the Office of the Public Guardian.
When are attorneys allowed to step in to help donors ?
It is important attorneys understand when an LPA can and more importantly cannot be used.
Just because it is signed and registered with the OPG this does not mean that the attorneys can take over.
The donor of a property and financial affairs power may ask the attorneys to help them with matters but they still make the decisions. The attorneys just action them.
With a health and welfare power, until the donor has been proved to be unable to make the decision at that time (about where they live, for example), they are the only people who can make that decision.
What are the usual duties of a solicitor who is appointed as attorney ?
It is normal for a solicitor who is an attorney to ask colleagues to assist. The reason for this is that quite a lot of the work is administrative, for example paying bills, which does not need a qualified solicitor to deal with. This makes it cheaper for the client.
It is sensible to automate as much as possible so that all income is paid into an account and all the bills are paid by direct debit and standing order. Again, this reduces costs.
Whilst your aunt had capacity to manage her finances though, I do not understand why the solicitor would control so much of her money.
Even if it was agreed that they managed the more complex aspects of it, it is usual for an allowance to be paid to the donor for what I tend to call ‘food and fun’. I do not understand why funds were transferred to you though.
What action can you take to help your aunt ?
As you are not the client here you cannot complain to the solicitor.
Your brother could ask for a breakdown of their fees, but what I recommend that you do now is contact the OPG safeguarding unit on 0115 934 2777 or > firstname.lastname@example.org > and tell them that you have concerns about what is being done.
You will need to mention the large bills and the sale of the flat at an undervalue.
You might also want to raise with the OPG your brother’s ill health which has meant he has not made any decision as attorney.
If the OPG believe that there is sufficient reason to investigate they will contact an attorney and ask them for an account of everything that they have done.
They will not report back to you until they have done so and will not reveal details of the investigation.
If they are not happy with the response they have the power to apply to the Court of Protection for the removal of some or all of the attorneys.
If they remove them all then someone will need to become your aunt’s deputy and you can volunteer to do that. However, the final decision will be the Court of Protection’s._** >