Re Buckley 12228697

Analysis

Miss Buckley executed an LPA on 7 September 2010, appointing her niece, C, as her sole attorney for property and affairs. The LPA was registered on 17 January 2011.

On 20 April 2012, the Office of the Public Guardian (OPG) received a complaint about the attorney’s handling of Miss Buckley’s finances and initiated a formal investigation. The OPG instructed a Court of Protection General Visitor to see Miss Buckley, following which, on 23 October 2012, interim orders were made by the court for suspension of the LPA and other protective measures in relation to Miss Buckley’s finances.

Once concluded, the OPG’s investigation found that at least £87,682.53 of Miss Buckley’s money was used to establish a reptile breeding business and that £43,317.47 was misappropriated from the donor’s estate without consent.

C denied any wrongdoing, but did not oppose the OPG’s application for revocation and cancelation of registration. C admitted to using at least £7,650 of Miss Buckley’s capital for her own benefit, but contended that this was done with her aunt’s permission. In relation to the investment in reptile breeding, C contended that this was a good short-term investment that would return a 20% profit over two years, and which she felt appropriate and in accordance with Miss Buckley’s love of animals. C stated that she had put the investment in her own name because she was not aware of how investments should be made by an attorney.

Held (revoking the LPA under MCA 2005, s22(4)(b), and directing the Public Guardian to cancel registration of the instrument under MCA 2005, Schedule 1, para 18):

1. (1) C had disregarded her authority and acted in a manner inconsistent with Miss Buckley’s best interests (paras 48-54):
2. (i) The investment, even if C’s explanation was accepted at face value, was high-risk and thus unsuitable for an elderly individual.
4. (ii) The manner in which the investment had been made was unacceptable. C had failed to obtain and consider proper advice and had invested in her own business, in her own name.
6. (iii) C’s use of some £43,317.47 (according to the OPG’s investigation) for her own benefit far exceeded the authority to make gifts conferred on attorneys by MCA 2005, s12.
8. (2) Miss Buckley lacked capacity to revoke the LPA herself (para 55).
10. (3) The LPA’s revocation, in order to facilitate the appointment of a deputy, was both a necessary and proportionate measure for the protection of Miss Buckley’s financial affairs, and for the prevention of crime (paras 56-58):
12. (i) It was unlikely that Miss Buckley would ever regain sufficient capacity to manage her property and affairs or to revoke the LPA.
14. (ii) The Court of Protection Visitor had encouraged Miss Buckley to participate as fully as possible in the decision making process (and this had highlighted a negative response to C continuing to manage her affairs).
16. (iii) Others who were caring for Miss Buckley expressed concern that her assets might be stolen.
18. (4) Senior Judge Lush gave the following guidance to attorneys (paras 41-44):
20. (i) Until the OPG publishes its own guidance, attorneys should comply with the investment criteria and the requirement to obtain and consider proper advice provided by the Trustee Act 2000. Additionally, regard should be given to the criteria historically approved for investments (in Investing for Patients) with some allowance for updating.
22. (ii) Attorneys should keep the donor’s money and property (including investments) separate from their own or anyone else’s.
24. (iii) All investments should be made in the donor’s name, or, if this is impossible, a declaration of trust or some other formal record of the donor’s beneficial interest should be made available.
25. (iv) Except where de minimis, an application must be made under MCA 2005, s23 in relation to: gifts exceeding the authority of MCA 2005, s12; loans to the attorney or members of the attorney’s family; any investment in the attorney’s own business; sales or purchases at an undervalue; and any other transaction in which there is a conflict between the donor’s and the attorney’s interests.
27. (v) Attorneys must be aware of the law regarding their role and responsibilities, at least so far as the information contained on the LPA itself. Ignorance is no excuse for breach of these duties.