Presentation on theme: "AN INTRODUCTION TO. Financial Abuse and the Law Lasting Powers of Attorney Legal remedies for financial abuse The problems with legal remedies "— Presentation transcript:
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
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 ……