Clients frequently ask us: “Is Misuse Of Power Of Attorney a criminal offence?”
Yes, we encounter many cases where an Attorney’s abuse of Power of Attorney constitutes a criminal offence.
When someone agrees to act as an Attorney to manage a Donor’s finances, whether for a spouse or parent, our experience shows that Attorneys are rarely fully informed about the rules contained in the Mental Capacity Act 2005 and its Code of Practice. While not following these rules is a civil matter, abuse of Power of Attorney can also constitute a criminal offence under Section 4 of the Fraud Act 2006.
Section 4 of the Fraud Act 2006 defines the offence of “abuse of position”. If an Attorney misuses their Power of Attorney – for instance, making unauthorised gifts to themselves from the Donor’s funds – the Office of the Public Guardian may not only apply to the Court of Protection for the Attorney’s removal but also report the matter to the Police.
Real Case Examples (Names modified to protect confidentiality):
- Gifting: An Attorney made gifts to themselves when the Donor lacked mental capacity and needed their funds intact for care home fees.
- Money Transfers from Donor to Attorney: Attorneys “invested” all the Donor’s money in their own property company, which subsequently entered liquidation, leaving no funds for the Donor’s care fees.
- Investments for the Attorneys benefit: An Attorney withdrew the Donor’s funds from a Barclays deposit account to trade in cryptocurrency, resulting in an 80% loss within hours.
- Charging for care: An Attorney charged a weekly management fee for overseeing their mother’s “care” while failing to pay her care home fees.
- Property Transfer: An Attorney arranged for the Donor’s home to be transferred into their own name.
- Personal Use of Funds: Examples include:
- Purchasing vehicles
- Taking holidays
- Making excessive birthday and Christmas gifts
- Paying personal credit card bills
- Buying luxury items
- Using funds for family holidays while care home fees remained unpaid
Legal Implications
The criminal courts consider two key factors when determining if an offence has occurred:
- Would reasonable people consider the action dishonest?
- Was the Attorney aware their actions would be considered dishonest by reasonable people?
Example Comparison:
Honest: Using £500 from the Donor’s account to pay their care home bill
Dishonest: Using £500 from the Donor’s account for personal purchases
Penalties
The maximum penalty for this offence is:
- Up to 10 years imprisonment
- An unlimited fine
- Or both
If under Police investigation, an Attorney should expect to be interviewed under caution regarding potential abuse of position.
Important Note
If you’re uncertain whether an action might be considered dishonest, ask yourself: “Would I be comfortable if others knew what I’m doing?” If the answer is no, or I am now worried, contact Steene Law immediately before making any statements that could worsen your situation.
Contact Us Now
Please either make an online enquiry or call us now on 0203 653 0625 and let us help you.