Alloa sheriff revokes son’s co-power of attorney after finding he misappropriated mother’s funds

About this case:

• Citation:
  [2025] SC ALL 29
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Charles Lugton

The applicant, C, and the respondent, M, were two of four children of the adult, who had resided in a care home since 2019. The applicant craved orders to revoke his co-attorney’s powers on the basis that he had breached his duties to the adult while intromitting with her property.

The case was heard by Sheriff Charles Lugton in Alloa Sheriff Court. Blockley, advocate, appeared for the applicant and Bonnar, solicitor, for the respondent.

Personal benefit

On 13 May 2015, the adult granted a continuing and welfare power of attorney in which she appointed the parties as her attorneys. After the death of her husband in January of that year she began to exhibit symptoms of dementia, with more significant decline in her health occurring from 2018 to 2019, when she left her home and began to reside in Care Home B.

Following a capacity assessment in January 2019, the applicant took control of one of the adult’s two bank accounts, with the respondent taking control of the other. The adult also owned two rental properties, including the JG property, which was managed by one of the adult’s other sons, ‘Michael’. In an email dated 31 May 2018, the respondent advised that the rental payments for the JG property were being paid into a bank account held in his name as the adult’s attorney, and in Michael’s name, however in truth this account did not exist.

On 3 October 2018, a payment of £14,000 was made from the adult’s RBS account controlled by the respondent. This was said to be a loan agreement between the respondent and the adult to provide funding for the family business, E Ltd, which was never repaid by the agreed date and was executed without the knowledge or agreement of the applicant. A withdrawal of £6,000 was also made from the same account in February 2020 in settlement of a common repair bill, again without informing the applicant. Counsel for the applicant submitted that these transactions were made purely to serve the interests of the respondent.

The final matter complained of by the applicant was the removal of £110,000 from an ISA the adult inherited from her late husband. On 25 February 2019 the respondent and an executry solicitor, RB, attended at the adult’s home and explained that some paperwork was needed to release the funds. No such papers were signed by the adult, but in August 2019 the respondent paid the funds held in the ISA into his own bank account. The applicant argued that at those times the respondent would have been aware of the adult’s incapacity and took advantage of it to gain a personal benefit.

Minimising her symptoms

In his decision, Sheriff Lugton said of the parties as witnesses: “The applicant presented as a credible and reliable witness on the whole. He gave a clear and convincing account of the decline in the adult’s health, of the issue that had arisen regarding the JG rental property, and of his discovery of the loan of £14,000, the withdrawal of £6,000, the small cash transactions made from the adult’s account and the removal of funds from the ISA.”

He continued: “By contrast, I did not find the respondent to be credible or reliable. Throughout his evidence he seemed to be minimising the adult’s symptoms and his knowledge of her declining health. His claim to have been unaware of her Alzheimer’s diagnosis prior to the raising of proceedings is astonishing, given that he was one of her attorneys.”

Finding that the adult was permanently incapable of taking financial decisions by January 2019, the sheriff said: “The only direct evidence regarding the granting of the [2018] loan came from the respondent, who was a generally unsatisfactory witness; but it is not in dispute that the agreement bears the adult’s signature. Accordingly, I am unable to find that the adult did not consent to the agreement.”

However, he added: “I consider that the respondent failed to comply with his duty to obtain the views of the applicant before proceeding with the repair. In addition, he subsequently breached the requirement to advise the applicant that he had made the transfer of funds for this purpose, in the terms of the POA. While the work may have been required, the context was that the applicant’s business was one of the other owners of the driveway and stood to benefit from the repair. Accordingly, on any view the respondent should not have proceeded without first involving the applicant.”

Finally, Sheriff Lugton turned to the withdrawal of the £110,000: “I make no finding as to whether any of the money was subsequently transferred to Michael and the family business, or whether the respondent retained the full sum; but as the full funds went to the respondent initially, and given that he admits having kept a portion of them, it is unarguable that he derived a benefit from the transaction. Correspondingly, the transfer was made to the detriment of the adult’s financial interests.”

He concluded: “It is important to acknowledge that the POA reflects [the adult’s] intention that the parties should both act as her attorneys. Unfortunately, the respondent’s breaches of duty constitute a material change in circumstances which the adult could not have foreseen when she appointed him. Accordingly, notwithstanding the adult’s past wishes, the revocation of the respondent’s appointment is necessary to protect the adult’s interests in her property and her financial affairs, as is the order that he should submit accounts to the Public Guardian.”

The sheriff therefore sustained the applicant’s plea in law and revoked the respondent’s appointment as continuing attorney. The decision was also forwarded to the procurator fiscal in Alloa for consideration of whether to instigate a criminal investigation.