In a cautionary tale for those with elderly relatives, a loving daughter who failed to obtain lawful authority to deal with her mother’s property and financial affairs after the latter fell prey to dementia has been ordered to pay the lion’s share of the £70,000 in legal costs incurred in sorting out the ensuing muddle.
Although the daughter deserved credit for the excellent care she gave her 90-year-old mother, her failure to take legal advice and abide by the necessary formalities had resulted in a ‘deep schism’ between her and her brother and substantial expenditure on lawyers’ fees which both of them could ill afford.
The daughter’s ‘improper’ approach to her mother’s affairs had resulted in the sale of the home where she had lived for more than 50 years ‘effectively over her head’. The proceeds of sale had been placed out of her immediate reach, leaving her financially very exposed, and her state benefits and retirement pension had been diverted into an account in her daughter’s name.
All of that was done without legal authority and the daughter’s belated application to have herself appointed as her mother’s deputy under the Mental Capacity Act 2005 was clearly inappropriate. In the end, the Court of Protection had, with the parties’ consent, appointed an independent deputy to manage the mother’s affairs.
Ordering the daughter to pay the majority of the legal costs run up in the case, the Court found that her application was ‘doomed to failure given her obvious conflict of interest’. Her brother was also ‘not entirely blameless’ in that he had allowed her to manage their mother’s affairs on the assumption that she held a power of attorney without checking that that was the case.
The Court noted, “This cautionary tale illustrates vividly the dangers of informal family arrangements for an elderly relative who lacks mental capacity, made without proper regard for the financial and emotional vulnerability of the person who lacks capacity and the requirements for formal, and legal, authorisation for the family’s actions, specifically in relation to property and financial affairs.”