Investigating claims against attorneys and deputies who have abused vulnerable persons

Where a vulnerable person is unable to look after their finances, courts can appoint an attorney or deputy to do so for them.  Sadly, we are seeing a growing number of cases in which that attorney or deputy then goes on to seek financial advantage of the vulnerable person.

The Office of the Public Guardian (OPG) has responsibility to oversee attorneys and deputies.

Whilst deputies have a duty to produce annual accounts, attorneys have no formalised reporting to the OPG.  It is often the case that an attorney will manage that person’s finances for decades and have no contact whatsoever with the OPG.  As such financial abuse is unlikely to be checked early.

Over time, some attorneys come to consider their relative’s money to be part of their own family money. It is quite common for such attorneys not to keep good accounts, separating the two sets of finances. In these cases, it is not clear how money has been spent or the extent of any wrongdoing.

A review of spending often only occurs after the vulnerable person has died and a new professional or other family member is appointed to administer their estate. It can be a daunting task to undertake an analysis of spending and to make a considered decision as to whether to prosecute a claim.

Lifetime gifts: Invalidation for lack of capacity and undue influence

A gift made by an individual during their life will only be valid if made while they had sufficient mental capacity to make the decision, and while they were free from undue influence. Litigation of such gifts will often occur after death, when estate beneficiaries or executors find that the deceased person gave away substantial assets before their death. In these situations, Court orders would be needed to overturn the gifts and claw the relevant assets back into the estate.

Capacity to make a gift is judged differently to the capacity for making a will. The test as set out in the case of Re Beaney [1978] 1 WLR 770. The standard of capacity expected is relative to the gift being made, meaning that the greater the gift – the higher the level of understanding required.

Whilst lack of capacity can lead to a gift being voidable, often there is overlap between the principles that apply to the doctrines of lack of capacity and that of undue influence, in that lower capacity can make someone more vulnerable to undue influence.

The test for whether undue influence caused a gift to be made is often split into two categories. The first is actual undue influence – which is when the level of coercion is so high that the gift giver is no longer making the decision for themselves. Evidence of the coercion would be needed to reverse any gift.

Presumed undue influence is the second category, and this is based on the nature of the relationship between the influencer and the person making the gift. Relationships of confidence and trust between parties or a specific relationship such as that between parents and a child, doctor and patient, solicitor and client can indicate an already existing influence. The nature of the relationship is looked at as a whole and in particular the balance of power between the parties.  If the person giving the gift is in such a relationship as the influenced party, then the Court can presume that there was undue influence – unless the party with the power/influence in the relationship can explain the gift in a way that discounts undue influence in the decision.

Overturning gifts for want of capacity or on the basis of undue influence can be difficult, not least because of the lack of evidence often available in relation to these transactions. Early specialist advice should always be sought if a gift of value has been made by someone who may lack capacity or be subject to influence from another party.

Anthony Gold are proud of their work in recovery of assets taken from vulnerable persons and a founder sponsors of Hourglass a charity that works to prevent Elder Abuse.

Recovery of monies for the elderly lost through fraud

Unfortunately, we are seeing more and more cases where elderly persons have lost monies through fraud. The elderly are often targeted because they are vulnerable and reliant on others to help them, so people are given access to their finances and assets. Sadly the culprit is often a trusted family member or friend who has taken advantage of the situation.

The fraud can occur in many different ways. A signature may be forged on documents such as a cheque or on a Will. Fraud by an Attorney appointed to assist the vulnerable person with their finances. If the Attorney abuses their position of power to make financial gain then there are a number of remedies to this breach of trust.

Ultimately, it can lead to the vulnerable person losing a substantial amount of money which could affect their standard of living and future care.

Victims often do not realise the fraud has taken place and it usually only comes to light after the elderly person has passed away, when previous transactions are scrutinised in the administration of their estate.

Hourglass is the UK’s only charity focused on the abuse and neglect of the elderly. They offer a 24/7 free helpline on 0808 808 8141, and we would encourage anyone that needs help to reach out to them.

Alternatively, if urgent legal action is needed, we offer a fixed fee advice session in which we will set out your options. If you would like our advice, please contact the Contentious Probate Department at Anthony Gold on 020 7940 4000.

‘Arrivederci Roma … I’m off to sue in London’

Italy is one of the most beautiful countries in the world, it has beautiful weather, beautiful food, some of the most historic and beautiful works of art ever created by man, fantastic sports cars and fashion and a brilliant football team.  However, it is plagued by a bureaucratic and cumbersome legal system that makes litigating in Italy extremely unattractive.

It is no exaggeration that the most straightforward of legal disputes (claims ranging between £5,000 – £10,000) take approximately ten years to resolve.  It is not the law itself which is a problem in Italy, but simply the civil process.  The criminal process is no better but that is for another day and another article.

Anyone that is thinking of doing business in Italy or contracting with Italian parties should keep at the forefront of their mind the problems that they will encounter if sadly they have to utilise the Italian legal system.

I have regularly advised clients to avoid litigation in Italy at all costs and whenever there has been a dispute between contracting parties, the advice that I have always given and will continue to give for quite some time is to try and resolve the dispute amicably without recourse to the Italian courts.

As the English civil legal system is by far speedier (although much more costly) any company or individual contracting with parties in Italy should try and ensure that there is a jurisdiction clause in the contract making clear that any dispute in respect of the contract should be arbitrated upon in England.

It is safe to say that an Italian contracting party would object to such a clause but once the party concerned is made aware that the legal process is quicker, the Italian contracting party may very well take a different view.

Thus, in order to avoid disputes as to where the contract is formed namely Italy or England, a jurisdiction clause is always the best way forward.  That jurisdictional clause should expressly state that the contract will be subject to the laws of England and Wales and the jurisdiction of the courts.

Alternatively, the clause can state that the courts of England and Wales will have jurisdiction but the contract will be subject to Italian law.  In other words, one can have the benefit of the English civil legal system but at the time invite the Court to apply Italian law.

As in most clauses in contractual dealings, such a jurisdictional clause will be open to negotiation and discussion but every effort should be made to avoid litigating in Italy if at all possible.

Most in Italy will agree that the Italian civil legal system is in desperate need of reform and steps are being taken to make the civil legal system quicker when it comes to the administration of justice.  However, reform is unlikely to be in place for several years.

In summary, any party contracting with a company or other individual in Italy should use their best endeavours to ensure that a jurisdictional clause is in the contract granting jurisdiction to the English courts.  A contract with no jurisdictional clause should be avoided at all costs.  As regards convincing the Italian counterpart of the benefits of an English jurisdictional clause, persuasion is the key.

Julius Caesar when crossing the Rubicon contrary to Roman law knew that by the time he was before a Court, he would have gobbled up all of the Roman Empire.

The famous scribe who recorded Caesar’s famous words made an error.  He didn’t say veni, vidi, vinci which means I came, I saw, I conquered, but in fact said veni, vedi, vinci lex loci, namely I came, I saw, I conquered the local legal system!!!

You have been warned!!

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*