Undue influence and abuse: What can you do for those affected?

Vulnerability in old age can, at times, lead to actual financial abuse. Denzil Lush, the Master of the Court of Protection, has estimated that financial abuse occurs in about 10-15 per cent of registered enduring powers of attorney. Many more unregistered EPAs may be abused. The stark reality is that lawyers will be advising older clients who will become the victims of such abuse. Discovering that you may have assisted in providing the key to the abuse must be a lawyer’s worst nightmare. Certainly trying to ensure abuse is avoided is an impossible task where the abuser is a relative whom the client trusted. Widely drafted powers are often what the client’s situation dictates and, despite warnings of the risk of abuse, it is often what they request. What can the lawyer do to remedy the situation? David Rees’s article will be extremely useful in giving you guidance in this very difficult area.

Similar concerns arise where clients are acting under the undue influence of another. We are all influenced at times, from reading newspapers, talking to professions such as financial advisers and stockbrokers, to friends and family. It is, I suppose, difficult to assess the degree of influence. Occasionally, the situation is glaringly obvious, as in the case of Lily Morris, who was befriended within months of her husband’s death and gave two women she hardly knew, her home in consideration of £50 and the promise that she would be cared for by the women for the rest of her life. After her death one of her beneficiaries, The Trustees of Great Ormond Street Hospital, sought to set aside the transaction on the grounds of undue influence and she did not have mental capacity. Thankfully, the trustees won their case but I do wonder about the role of her solicitor in the matter. Although relatively rare, lawyers do need to consider whether their client is acting under the undue influence of another. Giles Harrap, who acted in the recent case of Hammond v Osborn, gives us in his article some useful guidance on the principles adopted by the courts.

As always, your thoughts and comments are always welcome. You can contact me on cpoynton@ark-group.com.

Caroline Poynton
Editor

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