07 December 2018 - Article
In R v TJC  EWCA Crim 1276, the first case in which the Fraud Act 2006 s4 (Abuse of Position) has been considered in relation to a Lasting Power of Attorney, the Court of Appeal held that, where there is evidence of a general deficiency in a donor's funds as a result of withdrawals made by a LPA attorney, this will be sufficient to lead to a criminal prosecution under the Fraud Act, alleging that the attorney is guilty of abuse of position. The case involved an appeal against the decision of the Crown Court not to proceed with the prosecution of a LPA attorney because no evidence of specific fraudulent transactions had been presented. Instead, the case had been based on evidence of the withdrawal of significant funds from the donor's account by the LPA attorney. The withdrawals seemed unreasonably high, given the donor's known needs.
The Court of Appeal (Criminal Division) found that it would be acceptable to present an amended argument that the total value of the withdrawals made by the attorney, when compared with the reasonable sums which would have been incurred over specific periods in providing for the donor, showed that the attorney could not have been acting honestly. The case is a reminder of the powers of the Office of the Public Guardian's Investigations Team including, in appropriate cases, referring suspected financial abuse to the police. It also shows that, in prosecutions for financial abuse, it may not be necessary to match withdrawals of specific accounts from the donor's accounts against specific expenditure by the attorney.