AN INTRODUCTION TO

Financial Abuse and the Law

Lasting Powers of Attorney

Legal remedies for financial abuse

The problems with legal remedies

Solicitors for the Elderly

Lasting Powers of Attorney – Property and Affairs

(LPA - PAs)

From 2007 LPAs replace Enduring Powers of Attorney as the way of appointing decision makers for a time

when you may lack mental capacity.

LPAs – Property and Affairs An Attorney can make any decision the Donor would make in respect of property and finances

Attorneys will generally:

Pay regular bills

Manage income and expenditure

Buy or sell property

Manage investments or even carry on a business

Who can make an LPA - PA? Anyone who is 18 or over

Must have capacity to understand purpose and effect

Individuals only – not couples

The Role of the Attorney Attorneys are governed by the principles of the Mental Capacity Act (MCA) 2005

The decisions and actions of the Attorney can be subject to restrictions and conditions

imposed by the Donor within the LPA

Before any decision is made, an Attorney must first be satisfied that it is in the Donor’s best interests

Attorneys must have regard to the MCA Code of Practice

How Attorneys are Appointed A Single Attorney

More than one Attorney to act

Jointly

Jointly and independently

Jointly in respect of some matters and independently in respect of others

Replacement Attorney

The LPA Form – (instrument) Prescribed information – the Donor and the attorney (s) will need to read the prescribed information, and confirm they have. It can be read to a person with visual impairment

Part A – Donor’s statement

Part B – Certificate provider’s statement

Part C – Attorney(s) statement

Notifiable parties The Donor includes in Part A , up to five named parties who are to be informed at the point of registration.

If the Donor decides not to inform any named parties, there must be two separate certificate providers.

Certification Process The certificate provider confirms:

- the Donor’s understanding of the LPA

- that they are under no undue pressure

- that there is no other reason why the LPA should not be made

At least one certificate provider required

Two certificate providers needed where no notifiable persons have been named.

Two types of certificate provider Category A – Knowledge Certification

Known the Donor personally for over the last two years

Category B – Skills Certification

Registered healthcare provider (inc GP )

Barrister, solicitor or advocate

Registered social worker

None of the above but consider themselves to have relevant professional

skills and expertise to be a certificate provider

Registration Process

Application to register from either the Donor or Attorney(s)

Named persons or Attorney(s) or Donor can object to registration – any one else needs Court permission to object

Remedies for Financial Abuse

Abuse by an Attorney ( Donor with mental capacity)

Deed of Revocation

Attorney should be be notified

If LPA registered Public Guardian must be notified

Advisable to notify any third party organisations e.g. bank

May be difficult if donor is frightened of ramifications

Investigation by the Office of the Public Guardian (OPG)

The OPG’s investigation Unit has powers to investigate financial concerns about registered EPAs or LPAs - LPA Regs 46, 47 & 48

This involves requesting a Court of Protection Visitor to see the Donor and/or the Attorney to investigate concerns – LPA Regs 44

Unregistered Enduring Powers of Attorney (EPAs)

THE OPG has no function in respect of unregistered EPAs. If the Attorney is not prepared to register the power to enable a challenge to be made then an application to the Court of Protection should be made for the appointment of a financial deputy.

The Attorney will need to be served with the notice of the application. The court could resolve matters by ordering registration, removing the attorney, revoking the power or appointing a deputy

Registered Powers of Attorney• Registered EPAs and LPAs can only be revoked by an order of the Court of Protection where the Donor has lost capacity.

• The Public Guardian can make an application for the removal of the attorney or the revocation of the power if concerns are warranted.

• A third party can make an application on the basis that • EPAs – an attorney is unsuitable •LPAs – an attorney not acting the donor’s best interests

Court Appointed Deputies The Office of the Public Guardian when supervising court appointed deputies can investigate, identify and deal with abuse, which can include an application to the court of protection for the removal and replacement of the deputy.

The Court of Protection can order that any security bond be paid to remedy the loss.

Court of Protection - Remedies

Order prohibiting contact (s17(1)(c)(MCA)

Order enabling another to bring proceedings on behalf of victim in civil court (s18(1)(k)MCA

The appointment of a deputy (s16(2)(B)MCA) this may include a panel deputy.

Residency and contact orders (ss 17(1)(a)(b)MCA)

Legal Remedies – Criminal Financial Abusers can be charged with various criminal offences including theft and fraud.

It may be possible to recover money as the funds will be proceeds of crime.

Mental Capacity Act 2005 s44 created an offence of ill treatment or neglect of a person who lacks metal capacity which applies specifically to carers, attorneys and deputies. Unfortunately the MCA

does not give a definition.

LEGAL REMEDIES – CIVIL High Court – can make freezing injunctions to prevent money or property being disposed of. Search orders to allow access to the perpetrator’s home or workplace to search for documents. Injunctions can also be obtained to prevent the perpetrator from leaving the country.

The Department of Works and Pensions (DWP ) can be contacted particularly if the perpetrator is an appointee acting under a bank mandate which should be cancelled. The DWP ( and other organisations) have fraud investigation teams.

Problems of Legal Remedies Cost/Time - Legal aid may be available but must establish viable cause of action. Lengthy proceedings may not be in victims best interests

Evidence – A victim without capacity may pose evidential problems

Desired outcome - usually want abuse to stop may want to deal with matter by amending wills , consider the use of statutory wills

Is the abuser worth pursuing ?

Solicitors For the Elderly

Solicitors for the Elderly (SFE) is an independent, national organisation of lawyers, such as solicitors, barristers, and legal executives who are committed to providing the highest quality of legal advice for older and vulnerable people, their families and carers

www.Solicitorsfortheelderly.com

A Strategy for Recognising, Preventing and Dealing with the Abuse of Older and Vulnerable People

Anne Eddis, Caroline Bialenska , Solicitors for the Elderly 2010 Acknowledged for contribution to this presentation.

Guides and Leaflets Why am I being left in the waiting room ?

LPAs - The certificate provider

- Information for an attorney

Guidance for financial organisations

regarding powers of attorney

Giving away your home

and more ……

AN INTRODUCTION TO