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Buachaill, Barrister
Category: Law
Satisfied Customers: 10953
Experience:  Barrister 17 years experience
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My wife's uncle is now 87 and is vulnerable. He had very

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My wife's uncle is now 87 and is vulnerable. He had very little education and is intellectually retarded although held a full time job for many years. He owns his own house. In 1998, possibly under a power of attorney (we are trying to find out) one or more of his relatives mortgaged his house against his will or without his full understanding. The mortgage was a Shared Appreciation Mortgage with RBS. A further withdrawal was made in 2004. We do not believe any of the money was spent on the house or given to my wife's uncle but was taken/spent by the individual(s) involved. Has a crime been committed? What is the situation with the Statute of Limitations-Limitations Act of 1980? Can action be taken against the bank? My wife's uncle is not aware of the situation. We became aware recently by obtaining a copy of the deeds.

1. The first thing you should know is that there is no time limit under the Limitation Act, 1980, on fraud. What occurred here was both a criminal act of fraud and a civil wrong of fraud. Essentially, the holder of a Power of Attorney is not allowed under law to benefit from their position or to take any personal benefit from holding a Power of Attorney. Accordingly, even if these two unnamed people held a Power of Attorney, they committed a fraud by benefitting from its exercise in their favour. There will be a full range of remedies available to obtain restitution of the funds they misappropriated.

2. However, you should realise that there most likely won't be a cause of action against the bank. So long as the bank acted in accordance with a Power of Attorney, they will not incur a liability. Whilst the loan monies were ostesibly advanced to a vulnerable individual, the bank would need to know they were not for him in order that they would be made liable. However, you need to get the relevant documents from the bank to see what in fact happened.

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