The High Court has directed the surviving attorney under a registered enduring power of attorney to provide a report on the donor’s finances, after five of his children raised concerns about the management of his affairs.
In a judgment delivered on 20 February 2015, Ms Justice Baker said the applicants’ lack of information, by itself, did not justify court intervention. The power of attorney did not require the attorney to consult the donor’s other children. But the evidence raised specific questions that warranted further inquiry under section 12 of the Powers of Attorney Act 1996.
The instrument, signed in 2007 and registered in 2010 after the donor was diagnosed with dementia, gave his wife and daughter broad authority over his property, finances and personal care. The wife later died, leaving the daughter as the sole surviving attorney. The donor continued to live at home with full-time specialist nursing care and had a substantial commercial and retail property portfolio, mainly held through companies.
The applicants sought accounts and records, details of personal care decisions, and cancellation of the registration. The attorney said she was willing to provide information. The judge said an attorney must keep adequate accounts, but there is no routine requirement to file them with the court. Interested parties can apply to the court; they cannot demand accounts directly for themselves. The court may require information or records where an applicant shows an arguable basis for intervention, such as a change in spending or a concern that funds may not cover ongoing care.
The matters requiring inquiry included a director’s salary paid to the attorney where no such remuneration had previously been paid, the administration of the late co-attorney’s estate, the value and ongoing costs of the property in France, and whether the donor’s current spending was sustainable. The judge also noted that the attorney had not completed a statement of the donor’s assets, liabilities, income and expenditure by July 2014, and said she had not kept accounts in any real sense.
The court required the attorney to furnish a report from her accountant covering current assets and valuations; relevant details of the late co-attorney’s estate; the donor’s income and tax for 2013 and 2014; expenditure for 2012 to 2014; recent nursing and medical expenses; projected 2015 income and its basis; and the French property’s value and maintenance costs.
The judgment addressed the legal principles and the specified reporting requirement. It did not determine the applicants’ request to cancel registration or make a final finding on the disputed financial concerns. The judge hoped the parties could resolve the remaining issues without further court proceedings.