How to ensure you don’t fall foul of LPA rules and are not accused of financial abuse

This week we’re going to take a look at the rules which govern the actions of an Attorney or Deputy when looking after the finances of a relative who has lost capacity.

The rules on how money can be used are very strict indeed. Many people unwittingly land themselves in trouble because they have not understood what they can and cannot do as an Attorney or Deputy.

Let’s imagine the following scenario:

Your mum has always doted on the grandchildren. When your son was little he used to love playing with toy cars and Granny always used to say: “When you’re older, I’ll make sure you have a nice car of your own to drive”.

Time passed and a few years ago she decided to put her affairs in order. She made out a Will, setting out how she wanted her estate to be divided up when she died. By all accounts, she even put aside financial gifts for each of her grandchildren – just as she had promised.

At the same time she put in place a Lasting Power of Attorney for both Finance and Health and Welfare, in the event that she ever lost mental capacity and was unable to make important decisions for herself.

Sadly, mum has now been diagnosed with Dementia. As her Attorney, it now falls to you to make all the decisions about her finances and care.

Your son has recently passed his driving test and would really benefit from a reliable car to get him to and from college. Granny had always promised him a nice car when he was old enough – so surely it’s okay to ‘gift’ him the money from her savings. After all, surely it’s what she would have wanted? And, in any case, he will eventually inherit this money when the time comes….

If we had a pound for every time we have heard this sort of defence from a worried Attorney or Deputy who is being challenged by the Office of the Public Guardian – well, let’s just say we’d have a very full piggy bank in our office!

Let us be absolutely clear – as an Attorney you CANNOT gift money in this way. Even if it’s what Granny would have wanted, even if she promised your son a ‘nice car’ – it’s a big no-no!

The rules which govern how an Attorney or Deputy can spend a Donor’s money when that person has lost mental capacity is contained in the Mental Capacity Act Section 12 and any gifting is strictly limited to ‘customary gifts’.

Court decisions have, over the years, defined an absolute limit of £3,000 a year. Most recently a Court of Protection judgment went further and made it clear that any gifting at all has to be made out of ‘excess income’, that is to say money that is not going to be required by the Donor for their own care needs.

This means that even modest gifts for customary occasions such as birthdays, christenings and Christmas should not be made until the Attorney or Deputy can satisfy themselves that these are gifts that were made customarily before the Donor lost mental capacity AND that the money they are going to use is not likely to be needed for the individual’s care and support.

Any Attorney or Deputy who makes gifts on behalf of a person whose money they are looking after would therefore be well advised to seek legal advice before doing so.

The Office of the Public Guardian views unauthorised gifting as financial abuse. It will, in extreme cases, seek to revoke the Enduring/Lasting Power of Attorney/Deputyship order.

Additionally, if a Deputy or Attorney makes an unlawful gift, they may have to personally repay that gift (even if the money has already been spent by the recipient) and they could also face a criminal prosecution.

At Steene Law, we specialise in acting for individuals who, as either Attorneys or Deputies, are being challenged by the Office of the Public Guardian.

Before you consider making a gift of a donor’s money – even if you believe it is what they would wish – call the team at Steene Law for a FREE conversation.

We will be able to tell you whether or not it’s permissible – so that you avoid the prospect of a future OPG investigation into your actions.

Call us now for a FREE conversation on 0203 653 0623“>0203 653 0623.

Mike Crawford

16 January 2024

I cannot speak highly enough of the helpfulness, professionalism and most of all the empathy shown by David Steene in my recent correspondence with him. My sincere thanks and I would honestly recommend this Firm to others without hesitation.

Jane James

6 January 2024

I cannot thank Mr. David Steene enough, a wonderful, kind and genuine gentleman who always had time to listen and had great compassion. I had never heard of deliberate deprivation of assets until I was accused of it, by my Local Authority. Brought about when my mother had to go into a care home, she'd had a mild stroke and early onset dementia, aged 92. I knew that this accusation was untrue, it was unkind, extremely stressful and had a huge impact on my family, including my mother. I sought help from Mr. Steene, to prove my innocence and hep my family. I chose his company, as they were experts in this field and already had brilliant reviews. Mr. Steene listened to what I had to say, was interested and asked me appropriate questions. He had so much information and knowledge with regards to Local Authorities and DOA, which he kindly explained to me in understandable words. Mr. Steene advised me what to do and to get back to him if I required further help. The phone call was followed up with a comprehensive E mail. My battle with the Local Authority commenced. After 13 months the accusation of DOA was dropped. I could not have fought this battle without knowing that Me. Steene was always available when I required further help and advice. He always answered me with professionalism. He would have taken on the case if I had failed. Mr. Steene pointed me in the right direction and gave me the encouragement and confidence that I needed. I cannot thank him enough. The receptionists who answered the phone, were always professional and helpful and always took a detailed message to pass on to Mr.Steene. A wonderful team, an efficient, professional company. I highly recommend them. A photo of my mum and my son. We are human beings.

Marcus Mackay

14 December 2023

David and Dianne provided myself and the rest of the family with sound advice in a thoughtful and genuinely caring way. While clearly expert in what he does, talking to David was like dealing with an old friend. In our case, my father had Alzheimer's and we needed to organise care, David and Dianne provided invaluable advice on how to navigate through the UK's dysfunctional NHS and adult "care" system in order to get the best possible support. As a word to the wise, be prepared for a battle and I am sad to say it, do not trust anything the council or NHS workers say, they are under immense pressure to get you to sign documents which will give them control of the situation and their only metric of success is to get hold of your money and have you pay for your care! Clearly looking after my father was our number one priority, but money does matter especially as care costs can easily exceed a thousand pounds a week. This means that the money my father had saved through his long working life was being burned through at a ferocious rate, so slowing down the council was key to ensuring that they couldn't eat into the value of my mother and father's house. It is disgusting that successive governments haven't put a cap on the amount you are expected to pay for care. I have no interest in inheritance, but I don't want my mother to be worried about owing the council money in her final years. So back to David and Dianne, they will both help you in their fields of expertise, but also point you to other aspects of the situation such as legal matters that you may want to consider. In the end, it is all about looking after people when they are at their time of greatest need and against that measure I can't think of a more capable, dedicated and compassionate couple than David and Dianne. This is a picture of my father and mother just as Alzheimers took hold of my father 5 years ago, he died on the 5th of December 2023.

warren appleby

11 December 2023

It was David's advice and knowledge that guided me through the OPG forms. He gave me confidence that I could deal with this on my own! I went on to prove my case with no further action taken! Highly recommend!!

Avis Caddy

3 November 2023

The law around paying care home fees is complicated. We were faced with a Local Authority who refused to give us a property disregard. We called David, and he told us on that first call that we would win, and he would succeed in a care home fees property disregard application. Our Local Authority dug their heels in, and each time they said no, David and Dianne, who are expert solicitors in paying for care fee law, explained why we were right, and why the care fees property disregard applied, and why the Local Authority were wrong. We won! The property was disregarded for care fees. David succeeded in getting the relatives’ property disregard which meant that our family member is secure in their care home, and we will not lose the roof over our heads. David, we can't thank you enough!

Lesley Mckenzie

14 September 2023

Had a particular problem with social services trying to claim a contribution towards my ex-husbands care after separating some 10 years ago but without divorcing. David reassured me that I was not liable so very grateful to him and explained the process going forward. Invaluable help cannot thank him enough

Mike Bravery

17 August 2023

I emailed David Steene late one evening and he kindly called me am the next ...excellent response. David was very professional and my question in his opinion would be better answered by another company. David sent me the appropriate link. He also reassured me that if I needed his expertise he would be very pleased to hear from me. Excellent service thank you David

andrew fry

14 August 2023

David and his wife gave us unprecedented realistic advice and clearly out too help people not take advantage of them. Many Thanks We hope to be in contact again shortly

Jean M Sheaf

7 August 2023

David acted on our behalf to petition our local authority to reconsider their incorrect decision of deprivation of assets, where monies were gifted before care was needed. He was honest, thorough and professional throughout. We would heartily recommend him to fight your case if you have also fallen foul of the system like we did.

Barton Bank

3 August 2023

I have spent over forty years working in law but a care issue arose that was well outside my area of expertise. I emailed Steene Law as they specialise in the area of care law and David Steene responded immediately. He provided excellent and timely advice on a number of occasions and, when a dispute with the local authority over care costs came to a head, one email to the LA from David caused them to immediately back down. I have no doubt that, without his assistance, the LA would have stood their ground. I shudder to think how unrepresented family members are treated by local authorities. If you are ever in a situation concerning care for a loved one do not try and do it yourself. Get a solicitor and, if possible, get this firm.

What Our Clients Say