AN INTRODUCTION TO

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AN INTRODUCTION TO
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Financial Abuse and the Law

• Lasting Powers of Attorney
• Legal remedies for financial abuse
• The problems with legal remedies
• Solicitors for the Elderly

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• 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.

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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
  

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Who can make an LPA - PA?

• Anyone who is 18 or over
• Must have capacity to understand purpose
  and effect
• Individuals only not couples

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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 Donors
  best interests
• Attorneys must have regard to the MCA Code of
  Practice

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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

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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 Donors statement
• Part B Certificate providers statement
• Part C Attorney(s) statement

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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.

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Certification Process

• The certificate provider confirms
• the Donors 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.

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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

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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

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Remedies for Financial Abuse
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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

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Investigation by the Office of the Public
Guardian (OPG)

• The OPGs 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

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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

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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 donors best
  interests

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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.

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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)

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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.

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LEGAL REMEDIES CIVIL

• High Court can make freezing injunctions to
  prevent money or property being disposed of.
  Search orders to allow access to the
  perpetrators 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.

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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 ?

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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
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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.
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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

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AN INTRODUCTION TO