Philip Collins, partner at Winckworth Sherwood, looks at power of attorney, including duties, safeguards and dealing with disputes, as well as the ongoing challenges for LPAs that have been created by the Covid-19 pandemic.
For many elderly and vulnerable people, March 2021 will mark one year since they began heeding the government’s advice to stay at home. For the fit and healthy amongst us, last summer and autumn provided a welcome break from lockdown, but for those who were shielding, didn’t have a reason or didn’t feel safe to leave their homes, it has been a long twelve months of isolation from friends, neighbours and in many cases family. This extended period of isolation has also caused many practical problems as people have had to rely on neighbours, paid helpers and sometimes strangers who have stepped forward or been called upon to help with shopping, paying bills, collecting prescriptions and other day-to-day tasks.
Whilst this has led to new friendships and community connections for many, there is concern that this reliance on others has led to a growing number of cases of both overt and more subtle forms of financial abuse.
What is financial abuse?
Financial abuse can take many forms but ranges from deliberate financial scams such as phishing and doorstep crime to more minor and unintended abuse such as an unscrupulous “helper” using an elderly person’s bank card to pay for their own shopping whilst buying essential supplies for the card’s owner. As the more vulnerable in society are not going to the bank or a cashpoint on a regular basis, it can be a long time before they notice that their account has been used or they may not notice at all.
The scale of Covid-related financial abuse is not yet, and may never be, fully known but there is anecdotal evidence that such scams and schemes are increasing. In particular at Winckworth Sherwood we have begun to receive troubling reports from family members of large sums of money having been taken from their loved ones’ bank accounts, that relatives have been coerced into signing important legal documents and even that they have changed their Wills in favour of individuals that they have only recently met.
Using a Lasting Power of Attorney (LPA) to prevent financial abuse
For those concerned that a loved one may be at risk of financial abuse, we strongly recommend putting Lasting Powers of Attorney (LPAs) in place, and in particular an LPA for Property and Financial Affairs. This LPA allows the person making the document (the ‘donor’) to appoint a trusted person or persons to act as their attorney, who can then manage their bank accounts and sign financial documents on their behalf when they are physically unable to do so and also if they were to lose the mental capacity to make financial decisions themselves. Attorneys have a duty under the LPA to always act in the best interests of the donor and if they do not do so, they may be investigated by the Office of the Public Guardian (the ‘OPG’). While the donor has capacity to make financial decisions, the attorney must involve them in each decision and take their wishes into account.
Where shielding and repeated lockdowns are keeping many people at home, a Property and Financial Affairs LPA allows attorneys to monitor and manage bank accounts, organise and pay for online shopping, pay for cleaners and carers, reimburse neighbours who have helped out, and pay bills on the donor’s behalf. It also allows attorneys to keep an eye out for targeted financial abuse as they can monitor bank accounts and look out for unusual payments or withdrawals of unexpectedly large sums.
It takes a few months to complete the formalities of making an LPA, but there are short term measures such as a general power of attorney that can be put in place while the LPA is being registered. We suggest this is discussed with your solicitor when you make your LPA.
The attorney’s role during lockdown
The last year has also created challenges for attorneys acting under LPAs, particularly if the attorney lives at a distance from the donor or if the attorney has also been shielding.
The OPG has issued guidance to attorneys reminding them that their role and responsibilities remain the same during the pandemic and that an attorney is not permitted to temporarily step down during lockdowns and then step back into the role at a later date.
The OPG has also made it clear that in discharging their duties under an LPA, attorneys must follow government guidance on social distancing and self-isolation and must observe any national and local lockdown rules.
Our advice to attorneys throughout the pandemic has been to:
- Keep involving the donor in decisions that you make and keep at the forefront of your mind that every decision must be in the donor’s best interests.
- Keep in regular contact with the donor and see where you can help. If you cannot visit in person, have regular phone and/or video calls and consider asking a care worker to pass on messages and keep you up-to-date. Try to obtain contact details for the donor’s neighbours and local friends, who you can call on to help, or to check in with the donor if you are unable to make contact.
- If the donor is happy for you to do so, register the LPA at their bank so you can pay bills and keep an eye on payments in and out. If the donor is worried about bills sitting unpaid, register the LPA with the utility companies so that bills go directly to the attorney.
- If you need to talk to the donor about a specific decision, think about how urgent it is and whether the decision could be delayed. If it is urgent and you cannot discuss it with the donor remotely, think about decisions and written statements the person has made in the past.
- Although an attorney cannot ask a third party to make decisions for them, once a decision has been made, you can ask someone to help with the task in question. For example, you can ask the donor’s neighbour to buy food for the donor and provide you with a copy of the receipt.
- Ensure any care visits, property repairs etc. that either you or the donor arrange are formally documented, that prices are agreed beforehand, and that you check credentials and take up references for anyone visiting the donor’s home. Remember that if a decision relates to the donor’s living arrangements or daily routine and care, then you must discuss this with the donor’s Health and Welfare attorney, if they have one.
If you suspect undue influence or financial abuse
As the year has gone on and the initial neighbourly offers of help have dwindled, we are hearing that many vulnerable people have had to turn to strangers to help instead. This is a worrying trend as it allows fraudsters and unscrupulous new friends to exert influence on the elderly and vulnerable and put pressure on them to make poor decisions, give away control of their finances, or even give away money and assets.
Remember that not all strangers have bad intentions and that not all financial abuse is deliberate, so attorneys should be careful not to jump to conclusions. Our advice is to keep in regular contact with the donor to ensure you find out about any new acquaintances and so that you can stay alert to possible abuse.
Red flags range from changes in spending habits, notices that bills have not been paid and unexplained transfers or withdrawals from bank accounts to less obvious signs such as a change in the donor’s behaviour. These more subtle warning signs include the donor becoming secretive with you and others in their close circle, a seeming reluctance to spend money even on everyday supplies and an uncharacteristic lack of confidence in their abilities to deal with paperwork and carry out day-to-day tasks.
If the donor has made a decision that you feel is unwise, for example if you discover they have given away property or changed their Will, get as much information as you can about what has happened and who was involved. If you think the donor has been coerced into making the decision or you are worried that they did not have the capacity to have made that decision, attorneys can use their power under the LPA to instruct a solicitor on the donor’s behalf.
A solicitor can arrange for a mental capacity specialist to visit the donor to talk through the decision they made and, if issues are discovered quickly enough, they may be able to intervene before any property has been formally transferred.
If fraud has already taken place or money or property has been given away, you should report the incident to the police. The police alongside your solicitor can then advise on any steps that could be taken to recover those assets.