Attorneys - know your limits

The recent case of R v TJC [2015] is a stark reminder that attorneys who fail to maintain records of how funds have been spent risk criminal prosecution.

In this case, an attorney had been appointed under a Lasting Power of Attorney to look after the donor’s finances. Evidence of excessive withdrawals from the donor’s accounts resulted in the attorney being prosecuted under the Fraud Act 2006.

The Court of Appeal held that, where there is evidence of a general deficiency in a donor's funds as a result of withdrawals made by an attorney, this will be sufficient to mount a charge that the attorney is guilty of abusing their position.

Previously, the Crown Court had decided that because there was no evidence of specific fraudulent transactions, the prosecution should not proceed. But on appeal, an alternative argument was presented - that the withdrawals seemed unreasonably high given the needs of the donor.

The Court of Appeal agreed that the amounts withdrawn exceeded the amounts reasonably required for the donor, and concluded that the attorney could not have been acting honestly.

This case shows that in prosecutions for financial abuse, it may not be necessary to match withdrawals of specific amounts from the donor's funds against specific expenditure by the attorney.

Robert Webb, Head of Wills, Trusts and Probate comments, “We often come across cases where family members suspect that an attorney has been managing finances inappropriately or even dishonestly. In many cases, their concerns can be addressed and fears allayed simply by the attorney being able to produce accurate records and receipts for expenditure. But those who have not kept proper records are in a precarious position. In light of this decision, attorneys who are unable to explain transactions could be exposed to a greater risk of criminal prosecution”.

For advice about your role and responsibilities as an attorney, please contact a member of our Wills, Trusts and Probate team.