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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9662
Experience:  I have been practising for 30 years.
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I have a 98 year old mother who last 8 years has been cared

Resolved Question:

I have a 98 year old mother who for the last 8 years has been cared for by my younger brother. At the end of June this year he decided he would no longer we looking after my mother and it was left up to my elder brother and myself to unravell her financial affairs. First we have registered two weeks ago to be Lasting Power of Attorney to enable us to get full access to my mothers bank accounts which are currently in a joint account with my brother. My mother has requested and we have recieved archived copies of her bank statements for the past 7 years and they show that my younger brother has been taking large sums of money out of the accounts without my mothers knowledge.
I am seeking legal advice to see if we have any way of recovering the monies that have been spirited away.
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

Does your mother still have full mental capacity?

Have you tackled your brother about this? What has he said?

Was any of the money in this joint account belonging to your brother? Or, did the money in the account come exclusively from your mother?

Was it an account in joint names or was he simply on the mandate.

Was it in joint names just for convenience?

Would you be willing to go to the police?

How much money is involved here over how long?

Would he reasonably be able to say that this was payment for looking after your mother?

If your mother still has all her mental capacity, do she now know about this and has she confirmed that he did not have the authority to do it?

Thanks.

Customer: replied 1 year ago.
Q: Does your mother still have full mental capacity?
A: My mother is not in her full faculties the reason why we have applied for LPA
Q: Have you tackled your brother about this? What has he said?
A: My brother has not had any communication with us since he decided to stop caring for Mother; our only way of communication was by letter where we confirmed what we had found out with the bank etc. and asked him to repay the monies he owed my mother back. He has ignored our requests, not replied or tried to communicate with us to discuss the situation.
Q: Was any of the money in this joint account belonging to your brother? Or, did the money in the account come exclusively from your mother?
A: All the money in the accounts belonged to my mother; my brother did not contribute anything into the accounts
Q: Was it an account in joint names or was he simply on the mandate.
A: My mother has a Saver account which my brother is a third party and a current account which is a joint account with my brother
Q: Was it in joint names just for convenience?
A: yes
Q: Would you be willing to go to the police?
Yes
Q: How much money is involved here over how long?
A: Apart from smaller sums taken out over the 8 year period there are 3 lots of £10,000 which have been removed from the accounts two lots of £10,000 in June 2012 and £10,000 in Nov 2015. We believe all in all the sum could be in in excess of £40,000 over the 8 years
Q: Would he reasonably be able to say that this was payment for looking after your mother?
A: No
Q: If your mother still has all her mental capacity, do she now know about this and has she confirmed that he did not have the authority to do it?
A: Although my mother does not have all her full faculties she does confirm that she knew nothing of the transactions and he did not have the authority to do it
Expert:  F E Smith replied 1 year ago.

If your mother is not in control of her full faculties mentally, then you cannot apply for a Lasting Power of Attorney, you have to apply to become a Deputy. The process is different. A person who lacks mental capacity cannot give consent for someone to have Power of Attorney. Hence, deputy yet.

https://www.gov.uk/become-deputy/overview

If this is theft then it is a matter for the police regardless of whether he pays the money back or not although obviously, it’s up to you whether you report it or not.

The reason that it’s important whether the money in the account was all your mothers or not is that if there was any money in there belonging to your brother, he can claim that it is mixed money and hence your mother’s money cannot be identified and it makes it very difficult to bring a criminal prosecution. The concept of mixed money is an odd one. You can’t just put 5 pounds into an account with all the money and then take 5 pounds out, because the 5 pounds coming out may not be the same 5 pounds that went in unless, there was only 5 pounds in the account at that time.

It is unlikely that because these are such large round sums, that he could claim they were expenses for the care. Is not entitled to be paid out of this as a carer but would be entitled to reasonable out-of-pocket expenses.

· I’m sorry to say that this is a police matter. You can of course, when you have deputyship, also bring a civil claim against your brother but that will have to wait until you have the deputyship in place. However you can go to the police now. It doesn’t matter that your brother has conduct of the account, it wasn’t his money and hence, it is theft.

Can I assist you any further with this?

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We can still exchange emails if anything needs clarification.

Best wishes.

FES.

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