How To Combat Probate and Power of Attorney Fraud
According to a recent report by the Society of Trust and Estate Practitioners (STEP), the cost of probate fraud is predicted to be in the region of £150 million, some £100 million more than what was previously estimated.
Power of Attorney Fraud/ Are things much better?
With respect to lasting power of attorney fraud, it is worth considering that the old “enduring” power of attorney system was replaced with “lasting” power of attorney in 2007 over concerns that the system was too easy to abuse. Last summer, a former Court of Protection judge warned that the potential for abuse could have “devastating” consequences on families, “particularly between siblings”. As was widely reported in a new foreword to his legal guide on the topic, the ex-judge, Denzil Lush, criticised the Government, claiming that the Ministry of Justice had been “disingenuous” in promoting the new system.
Fundamentally, the temptation to commit probate and/or lasting power of attorney fraud is immense, is easy to attempt and avoid detection and under-estimated in financial as well as the personal cost.
The courts can intervene
In extreme cases, the Office of the Public Guardian’s investigations team may refer suspected financial abuse to the police.
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.
Nevertheless, this is the exception, and sadly most people do get away with LPA and Probate fraud.
What can be done to combat LPA and/or Probate Fraud?
Here are some suggestions which may help.
If you become aware/suspect LPA/probate fraud, you can do the following:
- Start putting firm, but courteous pressure on the would be fraudster. Ultimately, you may end up in Court, or having to refer a file to a third party, such as the police, so it critical that you portray yourself in the best possible light. If you start getting emotional, getting sucked into an unpleasant dispute and writing material which casts you in an unfavourable light, it makes it less likely to get any 3rd party to give you a favourable outcome despite what has gone on.
- Approach third parties more in hope rather than expectation of help. If you have a possible LPA/ probate fraud situation, consider complaining to the police and/or the Office of the Public Guardian (OPG). However, the fundamental limitation of dealing with the police is that they sometimes do not “get” LPA fraud if you are short of compelling evidence. Thus, their ability to help is limited. Alternatively, the OPG may be more inclined to help, but will not investigate if the donor/direct victim of fraud has died and if they have limited resources. Fundamentally, often the most effective route to justice is going to Court, where judges do take a dim view of LPA/probate fraud. As we know, this involves time and money.
If you are still getting nowhere, you can consider instructing a lawyer and possibly having a discussion to see what legal steps can be taken.
For specific legal steps, this will be influenced by when the fraud has taken place and what information you have already gained.
This can include:
- For pre-death steps: While the donor is alive, and a LPA fraud may have taken place, the focus should be on obtaining Office of Public Guardian intervention, but also pressuring the errant attorney to disclose evidence to justify his or her actions. The difficulty you have is the accumulation of evidence and sadly, you will often not be able to expose much until the donor has died. It is possible to instruct a lawyer to threaten legal action which can help, but actual legal options are limited at this point.
- To expose LPA/probate fraud, often the key way (unless you have OPG intervention) is to use legal methods once the Attorney/the Victim has died. The ability to pressurise legally is often on the status of the person complaining (e.g. being a beneficiary under the will or via intestacy). With respect to actual legal steps, this needs to be targeted and often will ultimately focus on obtaining an inventory and account (which can be done if probate has been obtained) or forcing the executor to obtain probate via a citation. Ultimately, what your goal is to obtain the bank accounts/further financial information and from experience, obtaining an inventory and account of the estate is the most effective method provide the estate is not in trust.
Why Use An Application For Inventory And Account?
Subject to it being the most appropriate legal method (it cannot be used in certain circumstances such as if probate has not been obtained), one method is to make an application for inventory and account in order to scrutinise the executor’s conduct.
The benefits are:
- It is a relatively low risk application. Unlike other court actions such as removal of executor which are not certain to win despite the evidence, it is a relatively risk-free court step and clearly defined
ii It will obtain useful information whatever which is useful and can provide a springboard for further steps to be taken against the executor/administrator
iii You should get the Court date quickly. As the application is short, you do not have to wait a long time (e.g. more than nine months to get a final court date) to go before the Judge. Resolution is relatively quick
- Compared to other legal methods, it is not expensive.
v It shifts psychological power away from the executor and onto the beneficiary.
Ultimately, often success is a battle of persistence. Exposing LPA probate fraud with limited support from third party’s authorities and the inherent difficulty of obtaining financial information is not easy for someone complaining. Nevertheless, some people have obtained strong evidence simply by their desire to confront this criminal behaviour.
Justin Patten is a solicitor and Director at Human Law LLP, a law firm which specialises in elderly legal issues. He has just written a book “A Practical Guide to Elderly Law” which is published by Law Brief Publishing.