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Kasare, Solicitor
Category: Law
Satisfied Customers: 1301
Experience:  Solicitor, 10 yrs plus experience in civil litigation, employment and family law
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I was made deputy of my mums affairs last year financial affairs

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I was made deputy of my mums affairs last year financial affairs and I have been spending it on myself and my children which I know is wrong but it's what my mum would have wanted me to do I have no previous convictions but the office of public gaurdian want to meet me to submit a report what will happen to me when they find out nearly all the money is gone I have 4 beautiful children and I couldn't bear going to prison and being away from them the amount totals to 37000 do u think I could go to prison for it ?
Hi, thanks for your question. I will assist you with this.

Unfortunately what you have done is abused your position as an attorney. There is a requirement to act in a person's best interests which is a fundamental requirement of the Mental Capacity Act 2005 (the "Act").

There is a very limited power that an attorney has acting under a property and affairs LPA to make gifts on behalf of the donor. Unless there is a restriction in the LPA, gifts can only be made:

1) to people who are related to, or connected with the donor (including attorneys) on specific occasions such as births or birthdays, weddings or wedding anniversaries, civil partnership ceremonies or anniversaries, or any other occasions when family, friends or associates usually give presents; OR

2) to charities where there is a history of regular payments, or even from time to time; and the gifts must be reasonable having regard to all the circumstances and in relation to your assets.

You have an obligation as an attorney to submit accounts to the Office of the Public Guardian (OPG) and the OPG often undertakes routine audits where there are LPAs in place of someone's finances.

I consider it unlikely that you would go to prison for this - although it is not impossible. You could be ordered to pay this money back to the account. The powers of the OPG/Court of Protection are wide.

There was a recent case where the Office of the Public Guardian had discovered family members had done what you have done, i.e. used all the donor's money for personal purchases, and the OPG/Court of Protection did not order the deputies to repay the money, which it has the power to do, although it stripped them of the deputy role. The reason it did not was that the attonery's alleged, as you, it is what the donor would have wanted them to do.

The other consideration you may have is that other family members who may have been eligible for an inheritance from your mothers estate, when she passes, could claim against you to recover their share of the estate.

I hope this assists.

Customer: replied 3 years ago.

Thank you so much I did also give a large amount of the money to my brother which is my mums only other child as I said this is what she would have wanted so we have both used this money and I was going to pay the money back anyway and will offer to pay it back if nesisary

Customer: replied 3 years ago.

Also sorry what did u mean by the opg/court of protection are wide?

Hi Lisa, sorry I had to go offline for a little bit.

If you have also shared the funds equally with your only brother then he could not make a civil claim against you.

The issue is, how is your mother living financially if her funds have gone? Who is paying her rent, food, bills etc?

When I said the powers of the Office of the Public Guardian (OPG) and the Court of Protection are wide, is that they do have the power to refer the matter to the police or CPS who can then institute criminal proceedings against you.

The law makes it a criminal offence under Section 44 Mental Capacity Act 2005, if a person "ill-treats or wilfully neglects a person who lacks mental capacity or whom they believe lacks mental capacity and that person has the care of the other person or is the donee of a lasting power of attorney, or an enduring power of attorney created by the person who lacks capacity, or is a deputy appointed by the court for the person who lacks capacity". The offence is carries a maximum penalty of 5 years imprisonment and/or a fine. However the burden under criminal proceedings is high and the CPS would have to be satisfied that you ill treated or wilfully neglected your mother by your actions.

The Court of Protection can also revoke or vary your powers if satisfied you have behaved in a way that contravenes your authority or is not in the person’s interest. If they do this they can appoint a deputy from the Courts panel to administer the remaining funds and they can apply to the Court to vary a will if by using the funds you have prevented certain aspects of her will being able to be dealt with.

I don't mean to scare you, however, breach of your duties is serious and there can be consequences. However, if you can show that you did what you believed your mother wanted - and perhaps your mother is able to convey this also - then it is unlikely they will do anything other than perhaps revoke your powers.

Does that assist?
Customer: replied 3 years ago.

Thank you dowry to keep bothering you but what do you mean by the burden under criminal proceedings is high? Thank you

The burden of proof is on the CPS i.e. they have to prove to a very high standard that you ill treated or were wilful in your actions with regard to your mother.

But remember, this all depends on what the OPG consider when they meet with you.

Unfortunately, it is obvious that you are aware what you have done is wrong - but if you can satisfy the OPG that you did what you thought your mother would have wanted, or that you did what you did without being aware of the consequences, then they will consider the matter and let you know their intentions.

I would recommend you meet with the OPG, and assist them as honestly as you can and then see what they decide to do.

IF they decide to refer this to the CPS, then obtain a solicitor to assist - but wait and see what happens first.

Don't panic!

Please do not forget to accept or rate my answer (positively!) in order that I am credited for my time.

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