Granny’s Bank Account has had large withdrawals! What do I do?

Was the recipient Granny’s attorney, or gardener?

Attorneys receiving gifts from individuals who appointed them their attorney, need to be very careful. Did the individual donor receive competent, independent legal advice, before making the gift to the attorney?

Mistakes are sometimes made which might give opportunities for recovery of funds from the attorney.

Antagonism can result when a social worker, an executor, or beneficiary, discovers the gift when viewing the individual’s bank statements.

Often there are suspicions the individual did not consent to the gift to the Attorney and reporting the matter to the Office for the Public Guardian may not necessarily result in assistance. 

A common reaction is to contact the Police, who might not always assist, depending on the facts.

If a close relative, say son or daughter, was the recipient of the gift from the individual, the police, in some circumstances, may struggle to prove, beyond reasonable doubt, the donor did not consent to the “gift”.

The civil law may help in circumstances of those wishing to obtain restitution on behalf of an individual, where an expected inheritance is reduced significantly by lifetime gifts.

In these situations, a presumption might arise of undue influence, depending on the facts. It is not usually sufficient for the recipient attorney, to be able to show the individual had capacity to make the gift, nor subject to any coercion, or influence. 

This might offer a route to recover the value of the gift from the personal assets of the Attorney.

The thinking is that it is best to have the highest standards of separation between an individual’s assets and those of an attorney, who is given the responsibility to safeguard their assets with access to an individual’s funds, modest gifts for birthday and Christmas excepted.

Whilst sadly some do, a number of cases in which I have acted, have not involved any suggestion of dishonesty, nor actual undue influence by the attorney on the individual gifting to them with full capacity.

Nevertheless they have resulted in the value of the gift being paid back to the estate, or settled by the attorney receiving a smaller inheritance to the amount of the gift they received, if the attorney was also a beneficiary of the individual’s estate.

Whilst it is not possible to predict with certainty how a Judge would decide a particular civil recovery case, there may be powerful factors from an attorney’s perspective, compelling an attorney in receipt of a gift to respond to a claim by avoiding any litigation about the matter and conceding and repaying the gift.

Otherwise to defend the gift, they may not just lose the gift, but have to pay the majority of the legal costs of the party, seeking to recover the sums gifted by the individual from their personal assets.

If the recipient of the gift was not an attorney of the individual, potential for recovery of funds taken from the individual, would depend on the case facts.

For further help and advice please contact Julie Bradwell on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email julie.bradwell@warekay.co.uk.