If you believe that a trustee or attorney is not managing the assets and affairs of a loved one as they should, you will understandably be concerned. Both trustees and attorneys have great power and responsibility in their position, and abuse of this position can have serious consequences. In this article, we look at the general financial duties of attorneys and trustees, as well as what you should do if you think something is wrong.
Financial obligations of attorneys and trustees
The role of attorneys and trustees is to look after the assets and/or financial affairs of another person.
When appointed under a Power of Attorney, an attorney may make financial decisions on behalf of the person who granted the Power of Attorney. They may look after that person’s money, including paying their bills or using the money to buy everyday things that they need. However, an attorney must not abuse this position and are obligated to act in the best interests of the person who granted the Power of Attorney. An attorney must also assist the person who granted the Power of Attorney to make their own decisions where possible and consider their wishes and feelings in the decisions they make.
On the other hand, trustees are appointed to manage a trust that includes money or assets for the benefit of someone else. Common examples of trusts include money that has been left behind in a Will to provide for a child or another dependent who is unable to manage their financial affairs by themselves. Trustees must always manage the trust for the benefit of the person the trust was created to support.
What you can do if you are concerned about mismanagement
There are many reasons why you might be concerned that someone is abusing their power as a trustee or as an attorney. Similarly, you may be worried that other person is simply incompetent and does not have the skills required to manage another person’s financial affairs properly.
If an attorney fails in the obligations outlined above and you are concerned that funds are being misused, you may wish to refer them to the Office of the Public Guardian. You can submit a referral form online outlining your concerns along with any evidence you may have.
When you believe a trustee is mismanaging trust assets or is not acting in the best interests of the person the trust is for, they can be taken to court. If it is determined that they have breached their fiduciary duty, they may be removed or replaced. You may also be able to recover funds that have been taken from the trust. If a trustee has committed fraud or theft, they may also have criminal charges against them.
Expert Lawyers for Older People, Edinburgh
Kathryn Johnston is an Associate within Murray Beith Murray Asset Protection group, and is a trust specialist. If this article has raised any questions or you would like to discuss an estate planning matter, then please complete our contact form, or call us on 0131 225 1200.
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