Acting as a Deputy brings significant responsibilities, and when you are acting on behalf of a protected party who has been the victim of fraud, you may have a duty to pursue a claim on behalf of that party.
Regrettably, fraud happens all too frequently where vulnerable parties are concerned and there have been cases where victims are deprived of their life savings, property registered in their names, or their income. Occasionally victims can be coerced or tricked into executing Wills. Sometimes the Police will take action but there are civil remedies available in such circumstances.
Vulnerable parties are not just susceptible to fraud however. Less sinister claims can arise where for example, someone contracted by them to complete building work is in breach of contract, or where a previous Deputy , or professional instructed by that Deputy has acted innocently but negligently with that person’s finances.
Pursuing a fraud claim as a Deputy
A Deputy has a duty to act in the best interests of the protected party and if there is a relatively good prospect of recovering damages or other sums for the protected party, then this should be pursued. As Deputy , you essentially step into the role of claimant and act as litigation friend for the protected party.
Pursuing a fraud claim comes with a degree of risk. It goes without saying that fraud is a very serious matter and the evidence you need to establish fraud must be sufficient to prove dishonesty. If this cannot be proven, that does not necessarily mean that there is no claim as the liability may be classed as a debt, or there could be a negligence claim if the “guilty” party simply made a bad mistake.
Bank statements, deeds and accurate medical records are a must and should be collated before you start any action. A letter of claim should always be issued to the defendant to start off with. Under new disclosure rules, it is now mandatory to disclose all the documentation you are relying on from the very start. Keeping things up your sleeve until later is no longer tolerated in civil proceedings.
It is also very important to establish whether the defendant is good for the money. They might well have spent all of it already, or moved it out of reach. It is possible not only to complete credit checks but pre-sue reports against defendants who are likely to be harder to recover from.
If you believe a defendant is trying to move stolen money abroad, or sell assets to cover his/her tracks, you can take that individual to Court immediately for a freezing injunction. This is a serious remedy but it can be obtained more or less instantly if the circumstances are urgent. Freezing injunctions prevent a defendant from being able to sell assets, move money from bank accounts (apart from reasonable living expenses) or execute deeds.
The risk for the Deputy is that you must give an undertaking in damages – essentially you are guaranteeing to pay damages to the defendant if they incur any losses as a result of the injunction. The Court will grant the injunction on an emergency basis if there is sufficient evidence and then list the case for a “return date” – usually a few weeks later – at which it will decide whether the injunction should continue. At the same time, you will be pursuing a civil claim against the defendant to recover the money.
How can Nelsons help?
If you are unsure of the merits of any claim, please contact a member of our Dispute Resolution team in Derby, Leicester and Nottingham on 0800 024 1976 or via our online form.