Gardener stripped of power of attorney

Posted: 20th February 2014

LPAIn an highly unusual move, the Court of Protection has stripped a former gardener of his lasting power of attorney (LPA) over a mentally impaired pensioner’s property and financial affairs after he ‘gifted himself’ £38,000 from her savings.

The Office of the Public Guardian (OPG) took action after being put on the alert by a social worker and an insurance company.  Investigations had revealed the cash transfer and numerous withdrawals that the man had made from the pensioner’s bank account. He had also used her money to hire a car for his wife.

The man was named as the principal beneficiary in the woman’s will and had described her as his ‘very good friend’. However, the Court ruled that he had breached the duties that he owed the pensioner, who was aged in her eighties, and contravened the authority conferred on him by the LPA.

The pensioner's husband and most of her family had died by the time she met the gardener, with her closest surviving relatives living a long distance away. She had named the gardener as executor of her will – which left him 80 per cent of her home and her entire residuary estate – before also appointing him as her sole attorney.

A social worker had raised the alarm when the pensioner was found ‘in a confused state’ on a bus on New Year's Eve and admitted to hospital. The gardener had visited her on the ward and ‘insisted there was nothing wrong with her and demanded that she be discharged immediately into his care’.

An insurance risk consultant had also contacted the OPG expressing concerns about the pensioner's £280,000 savings. It was subsequently discovered that the gardener had ‘made a gift to himself of £38,000’ from the woman's funds. That sum matched the compensation that she had received from the Financial Services Ombudsman following a complaint lodged by the gardener against her former financial adviser.

On applying to the Court to remove the gardener’s LPA, the OPG relied upon a report from a social worker who said that the pensioner was suffering from dementia and was unable to remember the gardener's full name when asked.

The gardener argued that the pensioner confided in him and gave him instructions on how to manage her affairs and that he had done his best to fulfil her wishes. Whilst accepting that he should have kept proper accounts of his expenditure, he objected to the OPG’s investigation and pointed out that the police had found no evidence against him that could support a criminal charge.

The court concluded, "The decision not to prosecute him simply means that the Crown Prosecution Service was not totally confident that it would be able to prove his guilt so as to ensure a conviction. It does not imply that his behaviour has been impeccable. Having regard to all the circumstances, therefore, I am satisfied that he has behaved in a way that has both contravened his authority and has not been in the woman's best interests."