News | November 7, 2018

Roadblocks to abuse

STEP Journal is the first publisher of the article: Ann Stanyer, ‘Roadblocks to abuse’, STEP Journal (Vol26 Iss8), p.61.

It is the practitioner’s duty to ensure the elderly client is not taken advantage of, writes Ann Stanyer

As professionals, we understand what is meant by financial abuse, because we see it in all its guises – whether it is the attorney helping themselves to the proceeds of sale of their mother’s house, the care assistant grooming the elderly patient to give them cash, or the carer daughter persuading her relative to change their will in her favour. Despite cases being reported in the national press, the wider public has not always seen this issue as affecting them. However, in England and Wales, such cases are on the rise, with adults often trying to rebalance ‘who has done what’ for the elderly relative over their lifetime in an attempt to achieve some kind of financial compensation for what previously would have been done for love and affection.

The Office of the Public Guardian (OPG) can only investigate cases brought to its attention. In its accounts for 2016/2017, it reported having received 5,327 safeguarding referrals. It investigated 1,266 cases, an increase of 45 per cent on the previous year, of which 272 resulted in an application to the Court of Protection. In the same period, the OPG received 1,362 requests for investigation visits, compared to 1,030 for 2015/2016.

It was predicted that, with 2.5 million powers of attorney now registered (648,000 were registered in 2017 alone), the number of those being investigated would increase. What these figures do not tell us is the number of active lasting powers of attorney (LPAs) and what proportion of these are subject to investigation. Sadly, these are statistics that the OPG will not be able to provide, as, unlike the old enduring powers of attorney, the onset of mental incapacity is the trigger for registration. Most powers are now registered soon after execution and many will not be used for years to come, when capacity is then lost.

In August 2016, Age UK reported figures that showed at least 130,000 older people have suffered some form of financial abuse from someone known to them since turning 65. Women are twice as likely as men to be victims of financial abuse in later life, with the majority being women aged 80–89 living on their own, single or widowed.

We also know from Crown Prosecution Service figures that there are real difficulties in achieving successful prosecutions for crimes against older people. In 2016–2017, there was a rise in the proportion of cases charged, from 77.2 per cent to 80.3 per cent, resulting in 2,783 suspects charged. However, 698 prosecutions were unsuccessful and, of these, 23.2 per cent were due to victim issues. These include victim retractions, victim non-attendance and where the ‘evidence of the victim does not support the case’. There is clearly a problem with gathering evidence in such cases and much more should be done to assist elderly victims as witnesses.

So how do we help combat this abuse? My experience has shown the following simple steps can help us assist our clients:

  • Encourage clients to take professional advice before signing an LPA.
  • Encourage clients to discuss their financial plans with all the family.
  • Explain to clients that a joint appointment of attorneys could be a useful safeguard for them and their attorneys.
  • Consider whether some of the supervisory rules for deputyships should be used for attorneyship: annual accounts, annual third-party oversight, trigger points (e.g. house sales or financial transactions over, say, GBP5,000).
  • Encourage annual family meetings.
  • Encourage the family members to take an interest and ask the right questions so that any suspicions about potential financial abuse do not become realised.
  • Keep in touch with your clients as they get older: go and see them at home to see whether there is an unknown party taking an overactive interest in them.

Financial abuse is clearly on the rise, and it is our job as professional advisors to put in place well-planned documents, whether they be powers of attorney, wills or trusts, to ensure that our clients and their estates are protected. Clients who have suffered financial abuse may feel shame or embarrassment, or be depressed. They may feel unable to do anything about the perpetrator. We need to encourage clients to talk about this. Financial abuse will only be brought under control by us noticing the warning signs and putting protections in place for our clients.

Click here to read the article on STEP. (£)