Solicitor Struck Off For Illegally Backdating Enduring Power of Attorney
A solicitor has been struck off the register for illegally backdating an Enduring Power of Attorney (EPA) in order to help save his client money.
The Solicitor’s Disciplinary Tribunal found that the respondent, Robert Henry Foster had been dishonest and lacked integrity. Although the incident did not benefit him financially, his actions brought the profession into disrepute and warranted him being struck off.
Having recently moved from the law firm, Walker Foster, where he was a partner, to set up his own business, Foster Law, in 2009, the respondent was eager to bring over his clients.
Having already prepared a Will for client BR when he was working at Walker Foster in 2003, he wrote to the elderly client in the winter of 2009, eliciting consent to transfer her Will to his new firm.
In October 2010, Robert Henry Foster was contacted by a third party and potential deputy for BR. The established client requested an update to her Will following the death of her brother and a Lasting Power of Attorney type document, placing AP as deputy.
On 25 October 2010, the respondent created an EPA, dictated the document that evening and executed it one week later.
However, as the EPA was dated after 20 September 2007, it could no longer be legally recognised and registered by the Office of the Public Guardian (OPG) under the updated schedule 4 of the Mental Capacity Act (MCA) 2005.
As the document was prepared in 2010 and should therefore have used the new power of a Lasting Power of Attorney (LPA), it would have been defective and unable to be rectified.
When the document was finalised on November 1, 2010, the respondent backdated the EPA to November 6 2003, the date the original Will was made.
Having lived with these actions for a number of years, Br’s deputy, AP, felt uncomfortable with being privy to a document made illegally and subsequently complained to the SRA about the EPA’s creation in 2010, citing that they did not feel comfortable ‘deceiving the OPG or anybody else.’
On 26 April 2016, the respondent’s prior firm, Walker Foster, who had been instructed by AP on behalf of BR, sent their findings to the SRA which led to the case against the respondent.
Although the case found that Foster had been both dishonest and lacking integrity, Mr Dunlop QC admitted that this was a sole blemish on an otherwise flawless career advising clients in the legal sector.
Mr Dunlop QC, acting for the respondent, claimed:
“The backdating took place once and only once. This was completely out of character…If this was not considered a moment of madness, it was close.”
Mr Dunlop argued that the respondent did not gain financially from the incident and had backdated the EPA to ensure BR had a protective document and was worried she was unable to pay for an LPA. It was also clear that the client has not suffered an adverse effect as she remains unaware of the EPA issues and the additional fees AP needed to pay in order to apply for deputyship, which were reimbursed to BR’s estate by Mr Foster.
However, whilst considering an appropriate sanction, it was clear that the incident was planned. Foster had a week to change his mind before finalising the backdated document. Although this was the only issue, it was deliberately dishonest. The reputational damage to the profession caused by the respondent’s lack of integrity also deemed a judgement of being struck off to be the only course of action.
Furthermore, even though this incident was isolated, the tribunal also heard evidence of Foster being caught with a knife in public which was said to highlight a history of making poor decisions which could mean he was a potential danger in the future.
In addition to being struck off the role of solicitors, Mr Foster was ordered to pay costs to the amount of £7,942.
How damaging could these actions have been for the deputy and donor involved? Did this incident warrant being struck off the list of solicitors?