Power of Attorney Bill – A Brief Update (December 2022)

Power of Attorney Bill - A Brief Update (December 2022)

On 7 December 2022, a Bill was introduced to amend the way lasting powers of attorney (LPA) are made. The changes, if passed, provide for further (secondary) legislation and include some considerable amendments to the Mental Capacity Act 2005 (MCA 2005). Here’s everything you need to know about the new Power of Attorney Bill:

Summary Power of Attorney Bill (Proposed)

  • The addition of Chartered Legal Executives to S.3 of the Powers of Attorney Act 1971, thereby allowing them to certify copies of powers of attorney
  • Registration only by the donor of the LPA
  • A change in regulations to allow the LPA to be made on paper or online, or by a mix of the two.
  • Regulations as to what identity verifications need to be met to apply to register an LPA
  • A notification process, requiring the Office of the Public Guardian to notify parties when an application is complete and when the registration process is starting
  • A widening of the group of people who can raise objections, including personnel not named in the LPA
  • A system to allow the Office of the Public Guardian to deal with certain types of objections
  • For the electronic form of the LPA registered to be evidence of the LPA

According to UK Parliament, this Bill was discussed at second reading on Friday, December 9, 2022. It has since been forwarded to a Public Bill Committee, which will convene to review the Bill at a later date.

Caveats – When and How

A valid caveat stops any application for a grant of probate, other than by the person who lodged it (the caveator). Anyone who wants to override a caveat must get the caveator’s agreement or undertake the procedure below.

When a caveat should be considered

A caveat is often used as a delaying tactic to enable the caveator to enquire as to whether there are grounds to oppose a Will, or to investigate some wrongdoing. It should be entered as soon as possible before an application for probate is received.

Examples of when caveats may be used include:

  • Where there is some allegation concerning the validity of a Will, i.e. that the deceased was not of sound mind, or put under undue influence.
  • If there is a dispute as to the existence of a Will, or whether a Will was properly signed or witnessed.
  • If there is a dispute between two or more people equally entitled to apply for probate.
  • There is concern that someone who might apply for probate would do something unlawful.

How to enter a caveat

Anyone can enter a caveat. Caveats can be entered personally or through a solicitor. A caveat can be entered online via MyHMCTS, by posting a PA8A form to the Probate Registry or by booking a face to face appointment at a Probate Registry.

The request for a caveat must:

  • Include the applicants name and address.
  • Be signed, asking for the caveat to be entered.
  • Include the full name and date of death of the deceased, as recorded in the register of deaths. It is important that the information is the same as the death certificate to minimise the risk of the caveat not being effective.
  • Include the last permanent address of the deceased.

If applying by post, the PA8A must be sent to HMCTS Probate in Harlow.

The HM Courts & Tribunals Service advise that the easiest and quickest way to enter a caveat is online, via MyHMCTS.

The cost of applying for a caveat via any of the above methods is £3. Postal applications must enclose a cheque for £3.

A caveat should be entered as soon as possible, there is no point waiting until somebody has made an application for a grant of probate.

Once the caveat is entered

The caveat lasts six months from the date it is entered; but can be extended for a further 6 months by completing a PA8B form.  An extension will cost £3. Caveats can also be removed at any time by writing to the registry, provided that you have not entered an appearance.

Once the person applying for probate is informed about the caveat they will be given the details of the caveator so they can get in contact.

Hopefully any differences can be resolved, but if not it is recommended both parties seek legal advice. Legal advice should certainly be taken after a formal response (known as a Warning). The caveator must respond to the Warning by entering an Appearance within 14 days or the caveat will not be effective (see our blog on entering an appearance).

Kimberley McGhie and myself are also going to be presenting a in-person seminar, for professionals, on this topic taking place 24th November 2022.

I am owed money by somebody who has passed away. How can I recover it from their estate?

If you are owed money by somebody who has passed away, you should be repaid in full from their estate (the money and property they have left behind), providing the estate is not insolvent.

Where the estate is insolvent (the assets are insufficient to settle all the liabilities), there is a legal order of priority by which any debts must be repaid. Further guidance on this can be found in this blog.

The executor(s)/administrator(s) of the estate are responsible for collecting the Deceased’s assets and settling their debts. An executor is appointed by the will of the individual who has passed away. An administrator is appointed where the Deceased has failed to leave a valid will.  Collectively they are known as “Personal Representatives”.

If the Personal Representative(s), dispute your debt and refuse to pay, you can bring Court proceedings against the Deceased’s estate to seek its recovery. The Personal Representative(s) would be named as Defendant(s) to these proceedings and would deal with it on behalf of the estate. If there is no Personal Representative appointed, you can still bring Court proceedings but also must seek an Order from the Court appointing somebody to represent the Deceased’s estate in the proceedings.

If no Personal Representative is appointed. meaning nobody is progressing the administration and dealing with your debt, other options are also available. Examples being:

  1. You can issue a citation against all those entitled to act as Personal Representative requiring them to either accept or refuse (renounce) a Grant of Representation. If all the potential Personal Representatives refuse, you can then potentially seek a Grant yourself allowing you to then settle the debt directly from the Deceased’s assets.
  2. Alternatively, an application for a Grant can be made under 116 of the Senior Courts Act 1981 which asks the Court to overlook those with the entitlement to otherwise take out a Grant. This application would need to be supported by an affidavit or witness statement which satisfies the Court that there are “special circumstances” making it “necessary and expedient” to appoint you as Personal Representative, rather than those with the legal entitlement. The basis likely being their failure to progress matters or deal with your debt over a significant period of time.

The Probate Registry will not automatically issue you a Grant, even if those otherwise entitled are not progressing matters correctly. If your application didn’t succeed, you could be out of pocket for your own legal costs and be ordered to pay the costs of anybody who has opposed it.

If you look to take out a Grant, you can seek that this be limited to you just collecting the Deceased’s assets and clearing specified debts. However, even if it was limited, you would still be subject to a number of strict obligations which could lead to issues if matters are not dealt with correctly. For example, if there is tax to pay or the estate did turn out to be insolvent.

We would therefore strongly suggest that expert legal advice be sought before making any application for a Grant, as a creditor.

If you are having issues recovering a debt from an individual who has passed away, please do not hesitate to contact a member of our specialist contentious probate team. David Wedgwood and Kimberley McGhie will also be presenting an in-person seminar, for professionals, on the topic of Grants taking place 24th November 2022.

What can I do if an executor is taking too long to administer an estate?

If an executor named under a will is not advancing the administration of an estate, you may be able to push the progress along and force their hand by issuing a citation at the Probate Registry. A citation is a written notice from the Registrar requiring the executor to do something. There are three types of citation:

  1. A citation to accept or refuse a grant;
  2. A citation to take probate; and
  3. A citation to propound a will.


Citation to accept or refuse a grant

A citation to accept or refuse a grant is a useful tool to advance the administration of an estate, by forcing an executor into taking action. If an executor won’t apply for a grant of probate, but will also not renounce, then a citation to accept or refuse a grant can be issued. This type of citation is available to anyone who would be entitled to take a grant if the executor was to renounce their entitlement.

The person cited must respond to the citation by entering an Appearance. If they fail to respond or do not enter an Appearance, then their right to act as an executor is extinguished, and the next person with the right to apply (normally the applicant) is entitled to do so.

If the executor does enter an Appearance, then they must take reasonable steps to apply for a grant of probate and administer the estate, failing which the applicant may ask the Court to issue a grant to them instead.

Citation to take probate

A citation to take probate can be used when a person has taken some steps to administer an estate (known as ‘intermeddling’) but has not applied for a grant. It can be issued from six months after the date of death if the executor has intermeddled but then not taken a grant. This type of citation is available to anyone with an interest in the estate.

The person cited must respond to the citation by entering an Appearance. If the person cited does not respond then the applicant can ask the Probate Registry for an order that the person cited take a grant within a specified time, failing which a grant may be issued to the applicant or another person. The order normally includes provision for an account of actions undertaken by the intermeddler.

Citation to propound a will

If a beneficiary of a will becomes aware of a later will, which would reduce their entitlement under the earlier will or intestacy, a citation to propound a will can be issued. It is a useful tool where there is a later will, but its validity is unclear because no one has attempted to propound it yet. The citation requires the executor to prove the later will is valid. If the person cited fails to enter an Appearance or propound the will, then the applicant can ask the Court for an order that a grant be issued as if the later will is invalid.

What is an insolvent estate?

An insolvent estate is where someone dies and there is not enough money in their estate to pay off their debts. Essentially, it’s where the liabilities exceed the assets.

If an estate is insolvent, the beneficiaries under the Deceased’s Will, or anyone entitled under the intestacy rules, will not receive anything because the estate’s creditors will need to be paid off. This includes any gifts of value, such as jewellery, as these should be sold to help meet any liabilities that are due.

It is important that the correct procedure is followed when administering an insolvent estate, otherwise the Personal Representatives or solicitors acting in the administration of the estate can be held personally liable. The requirements can be found in the Administration of Insolvent Estates of Deceased Person Order 1986 (Insolvent Estates Order).

An insolvent estate can be administered in one of three ways:

  1. By the Personal Representatives of the Deceased;
  2. Under an administration order; or
  3. Under an insolvency administration order.

Unlike solvent estates where the estate is administered for the benefit of the beneficiaries, an insolvent estate must be administered in the interests of the creditors to the estate. This is because bankruptcy rules apply to insolvent estates.

Regardless of which administration method is used, there is a specific order of priority in which debts must be paid:

  1. Secured creditors;
  2. Funeral expenses;
  3. Testamentary and administration expenses;
  4. Preferential creditors;
  5. Unsecured creditors;
  6. Interest due on unsecured loans;
  7. Deferred debts.

All debts in each category must be paid off before any debt in the next category can be paid. If there is not enough money to meet all the debt in a category, the pari passu principle applies. This is where the assets are apportioned among the creditors, in proportion to the debts owed to each creditor (although this rule is subject to some specific provisions according to the category of debt).

Administering an insolvent estate can be complicated, and if it is not done correctly, a personal representative can be at risk of personal liability. If you are the personal representative of an insolvent estate we would therefore recommend you seek legal advice on your position. If you would like our assistance, please contact the Contentious Probate Department at Anthony Gold on 020 7940 4000. David Wedgwood and myself are also going to be presenting a in-person seminar, for professionals, on this topic taking place 24th November 2022.

There is a caveat in place but steps need to be taken to preserve the assets – what can we do?

If there is a caveat lodged against an estate, the executors or administrators of the estate cannot obtain the grant of probate or letters of administration. In practice this means that any attempt to begin administering the estate must come to a standstill, whilst lengthy litigation is ongoing. This can impact estate’s value, particularly where properties are involved. For instance:

  • Properties might fall into disrepair.
  • Sales might be lost or delayed.
  • Bills may not be paid, and penalties might accrue. This might even lead to the property being forfeited,
  • Mortgage arrears might lead to repossession.

What can be done?

Limited Grant – Grant ad Colligenda Bona

An application can be made for a type of limited grant, called a grant ad colligenda bona. The purpose of this grant is to allow the administrators to collect and realise assets in order to preserve the value of the estate and pay liabilities.

This grant type is of course limited to a particular purpose. It does not allow for distribution of the estate. To distribute assets, a full grant of probate will need to be obtained once the dispute is resolved. However, it will allow for monies to be gathered in and bills to be paid.

For such a grant to be issues, an application form will need to be lodged along with a statement or affidavit that sets out the case background and why the grant is needed. Whilst in some cases it is possible to proceed without payment of any IHT or the IHT205 (if the estate does not pay inheritance tax) or the IHT400 (if there is inheritance tax to be paid by the estate) forms being lodged.

If the grant ad colligenda bona has been granted, the executor or administrator must be sure not to stray from what is permitted by the grant, as they may be held personally liable for any loss to the estate as a result.

David Wedgwood and Kimberley McGhie will touch on this issue in more detail at our in-person seminar for professionals on 24th November 2022.

Seminar recap: Inquiries into Life after Death

On 7 September 2022, Anthony Gold’s Contentious Probate Team held its first inhouse and in person seminar since the relaxation of COVID-19 restrictions. The seminar was well attended by members of other highly regarded law firms specialising in private client and wills, trusts and estates work. An early morning, pre-seminar breakfast buffet at Anthony Gold’s London Bridge offices afforded an opportunity to meet and greet or catch up.

The seminar began with a presentation led by partner Beth Holden and Senior Associate Tom Dickinson. The presentation touched on a variety of fascinating legal issues that are key to this complex and nuanced area of the law. These included the legal test for the requisite mental capacity to make valid lifetime gifts and transactions, undue influence (both actual and presumed), the duties and powers of an attorney operating under a financial LPA, restrictions on gift making by an attorney, the removal of executors and even a soupçon of partnership law.

Following the presentation, the attendees were invited to consider a hypothetical scenario. This gave rise to an animated and fruitful dialogue, first within breakout groups and then by way of a roundtable discussion. The scenario concerned a dispute between the children of a hypothetical successful businessman, Jack Mills, who had been diagnosed with Alzheimer’s disease some years prior to his death. His children disagreed about the validity of several pre- and post-death transactions that had a bearing on Mr Mills’ estate and his children’s respective inheritances.

Issues considered included which of the transactions were valid and which ones liable to be challenged. There was analysis of what steps should have been taken in advance, or retroactively, to validate the specific transactions. There was also debate about what actions ought to be undertaken by any personal representative charged with administering the estate, as well as the potential for proceedings against third parties. Some of the transactions occurred at the threshold of when Mr Mills may have lost capacity, which was the source of a lively exchange of views. Also, discussed was the validity of lifetime gifts to minors, the appointment of someone on their behalf to give good receipt, and Beddoe relief (where the Court approves a trustee’s or personal representative’s participation in litigation and orders that they be indemnified).  In addition, the scenario raised points of partnership law relating to the dissolution of a partnership on death of one of the partners, the entitlements and obligations of the respective partners and/or their estate on dissolution, and what happens to a partnership if one of the partners loses capacity.

The consensus among attendees was that this was an enjoyable and worthwhile event and a welcome addition to the calendar.  It was a promising precursor to our next contentious probate seminar and seasonal drinks taking place on 24 November 2022.

Breach of Trust | Blog Series

At Anthony Gold we have a long and proud history of supporting the vulnerable and protecting their interests. That includes our litigation department’s work in advocating their rights and recovering lost assets. Our clients include families and friends, as well as Court of Protection Deputies and government bodies, such as the Official Solicitor’s department.

Our work extends beyond recovery of lost assets, to also supporting those looking after the vulnerable. This often includes creative solutions to care, tax and benefit issues can that arise once assets are reclaimed.

We are proud now to announce our becoming a founder sponsor of the new charity Hourglass, that supports the families of those who have been financially abused. In line with that commitment, we have put together a series of blogs that look at the remedies for those who feel that someone they know has been exposed to financial abuse.

Recovery of monies for the elderly lost through fraud 

Kimberley McGhie looks at why the elderly are targeted, and how their monies can be recovered.

Lifetime gifts: Invalidation for lack of capacity and undue influence

Ryan Taylor explains how lifetime gifts can be annulled due to lack of capacity and undue influence.

Trustee Duties, Obligations and Breaches

What is the role of a trustee? Grainne Feeney explains this and touches on what powers they have and any breaches of trust that can occur.

Investigating claims against attorneys and deputies who have abused vulnerable persons

David Wedgwood explores wo’s responsible for overseeing attorneys and deputies, and how they are investigated for wrongdoing.

Abuse of Power by an Attorney and how to report it

The most common reason an attorney abuses their power is for financial gain. Grainne Feeney and David Wedgwood explore this further, and sets out how to report it.

I am concerned about actions taken by my loved one’s financial attorney

Tom Dickinson sets out what you can do if you are affected by the behaviour of a financial attorney.

I am concerned about actions taken by my loved one’s financial attorney

A Property and Financial Affairs Lasting Power of Attorney (LPA) is a legal document which, once registered by the Office of the Public Guardian, authorises the nominated attorney(s) to make financial decisions on behalf of the individual who has granted it (the donor).

The LPA document itself may set out specific restrictions on what kind of financial decisions the attorneys can make. It may also set out that the attorneys can only deal with the donor’s finances if/when they lose mental capacity to make these financial decisions themselves in the future.

Attorneys have a number of strict duties imposed on them which are set out under the Mental Capacity Act 2005. These include always having to assume the donor has capacity to make the decision, and taking all practicable steps to help them make the decision themselves, unless it is established they cannot do so. If the donor cannot make the decision themselves, the attorneys can then only make decisions that are in the donor’s best interests.

Due to being in this position of trust, attorneys also owe a number of further strict duties to the donor, known as fiduciary duties. These include duties not to take advantage of their position, not to profit from their role and to avoid conflicts between their own personal interests and those of the donor.

Attorneys must also keep a clear account of their financial transactions and keep the donor’s money/property separate from their own or anyone else’s.

When it comes to gifts, attorneys can only make gifts which are reasonable in amount (when compared to the size of the donor’s assets) in limited circumstances. These include gifts on customary occasions such as a birthday or marriage or to a charity the donor has donated to in the past. Any gift exceeding this will require Court of Protection approval.

Concerns about an attorney’s behaviour can arise both during the donor’s lifetime and after they have passed away. Common examples of what would lead to concern include: –

  1. The donor’s expenses (such as care home fees) not being paid, leading to debts being built up.
  2. There being lots of ambiguous or unexplained payments in the donor’s bank statements.
  3. The attorneys transferring funds from the donor’s account to their own accounts.
  4. Unapproved gifts being made which appear to exceed what could be considered reasonable.
  5. The attorneys selling the donor’s property to a family member or friend.

If the attorneys have breached their strict duties or acted beyond the scope of their powers, a number of steps can be taken against them.

During the donor’s lifetime, action can be taken to have the attorneys removed and replaced by a Deputy (if the donor now lacks capacity). This Deputy can then bring proceedings against the former attorneys which may result in them having to pay back any financial loss caused (or profit gained) from their own pocket.

If the donor has passed away, their personal representative (executor or administrator) can take action against the former attorneys which may again result in them having to repay the estate from their own pocket. If the former attorney is also the named executor, steps can also be taken to have them passed over as executor or removed/replaced (if they have already taken out a Grant).

If you have concerns about the conduct of an attorney, please do not hesitate to contact a member of our specialist contentious probate team.

Abuse of Power by an Attorney and how to report it

The most common reason an attorney for property and affairs abusing their power is financial gain, and sadly in most cases the abuse is committed by a family member. Family are sometimes simply not suitable, think for example of children where the appointment of one over others may cause a conflict, or where a child believes their parent has more than enough money to see them through and is tempted to advance to themselves what they see as their inheritance. This makes choosing your attorney very difficult. There may be some protection in having two attorneys acting jointly and severally, but that will not necessarily prevent abuse. In instances where there are no family to be appointed, the abuse can be just as likely, in part because the attorney may be able to influence the person or gets a sense of entitlement.

For welfare matters, there are also similar considerations with family members acting as attorneys, since they may struggle to make decisions around welfare matters, despite the advice of the treating professionals or where they are concerned that the cost of care will deplete what they see as their inheritance.

With the start of the Covid pandemic the numbers of abuse cases increased with the Office of the Public Guardian, who supervise attorneys, reporting applications for censure or removal of attorneys hitting record highs in late 2019.

What’s The Alternative?

An alternative might be a professional (or joint professional) who will not only be held to higher account, but more importantly are independent and can take an impartial view. Their expertise means that they will be fully aware of what powers they have and when they might need to seek additional authority.

Case Law

Re OL [2015] EWCOP 41

The Public Guardian v AM [2015] EWCOP 86

Reporting Abuse by an Attorney or Deputy

It is possible to report a concern to the Office of the Public Guardian (OPG), who supervise attorneys and deputies either through emailing the OPG130 form to opg.safeguardingunit@publicguardian.gov.uk or alternatively you can call their helpline on 0115 934 2777.  Please see a link to their guidance.

The OPG have recently reported applications for censure or removal of attorneys hitting record highs. Whilst the OPG’s service is free, their investigations are thorough and very lengthy. Many clients report long delays and then lack of progress in investigations. For example, we had a case of a deputy who went to prison for five years for fraud, who was not removed as a deputy until after he was released.

An alternative, for those with sufficient closeness to the vulnerable person, such as family or close friends, is to make an urgent application to court themselves. This is direct to the Court of Protection, rather than waiting for the OPG investigation and the OPG then making the same application. That court process should be undertaken with the input of specialist lawyers, as without expert advice there is a possibility not only of wasting money, but also of being obliged to pay other people’s legal costs in defending such an action.

Sometimes, wrongdoing may only come to light after the vulnerable person has died and a new professional or other family member is appointed to administer their estate.