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Lasting Powers of Attorney: Would a Joint Bank Account be Just as Good?

View profile for Paul Hajek
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hilary mcilveen solicitor advises on lasting powers of attorneyA family member places money in a joint bank account with another family member or trusted friend to provide access to funds should that person be unable to operate their own sole name account.

This is not uncommon: the arrangement is used to avoid the costs (and they can be considerable) of appointing an Attorney under the Lasting Powers of Attorney legislation to deal with that person’s financial affairs.

But is it a proper and safe approach to adopt?

Well, this arrangement has come under court scrutiny recently in the courts.

A Mrs N had bought her council house with the financial assistance of one of her six sons.

On the sale of the house in December 2006, the proceeds of approximately £55,000 were placed in a joint account with one of her other sons, Christopher.

Mrs N. died on the 23rd January. Between the 5th January and 23rd January, payments of £28,625 were made from the account by Christopher.

A day after Mrs. N died on 24th January Christopher removed the entire proceeds of the account and transferred it into an account he held with his wife.

Christopher’s actions were challenged by Mrs. N’s estate.

Christopher argued that the account was to be used by him to assist his elderly mother, and that upon her death if there were any funds remaining, they were intended for his sole use.

However, the judge decided on the evidence available that the proceeds of the account belonged to Mrs N’s estate and not to Christopher alone.

Christopher was ordered to repay all the sums taken, apart from where it could be proved they were paid on behalf his mother.

What lessons can be learned?

1. Where money is placed by one person into joint names it is generally treated as belonging to the owner of the funds.

2. If otherwise, the circumstances must show very clearly a contrary intention.

3. It is not sufficient on its own that the account application forms referred to the fact that the money would pass to the joint holder on the death of the first holder. There would need to be evidence that this had been explained and considered.

4. If the other party claims to money to have been a gift and overturn this general principle, the person claiming the gift must show clear that the provider of the funds intended the money to be a gift.

Conclusion:

The clear message from this decision is that if you enter into such an arrangement you should understand the potential problems it can cause and be extremely clear about your intentions for the arrangement.

It would be wise to seek advice from your Solicitor.

Your Solicitor can advise on the pitfalls of transferring money into a joint account.

Your Solicitor can also advise on whether there are better and safer ways of proceeding, for example, the creation of a Lasting Power of Attorney.

If you would like to discuss the contents of this post with me, and claim 10 minutes free of charge, please email me hilary[at]cluttoncox.co.uk or telephone me on 01454 312125. 





 

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