We specialise in resolving the issues that arise from the financial abuse of older people. The elderly are more vulnerable than others to subtle forms of pressure from those who are closest to them. As a result they can be taken advantage of and suffer financial loss. Of course, financial and other forms of abuse can happen at any age, but it can be particularly challenging to know what to do when the victim may not even be aware that they are a victim, or if the abuse is discovered after their death.
Financial abuse includes:
- Misappropriation of money or property.
- Misuse of assets.
- Exerting undue influence to give away assets or gifts or to make a will.
- Putting undue pressure on an older person to accept lower cost/lower quality services in order to preserve more financial resources to be passed to beneficiaries on death.
It is estimated that between 1% and 2% of people aged 65 or over in the United Kingdom today have suffered, or are currently suffering, financial abuse since turning 65.
A review for Help the Aged in 2008 found that 70% of financial abuse is perpetrated by family members and that 60% to 80% of financial abuse takes place in the home, with only 15% to 20% in residential care.
Remedies in Financial Abuse
Powers of the Court of Protection in Relation to Financial Abuse
If the victim lacks mental capacity, then the Court of Protection has wide powers to deal with financial abuse. The Court can make an order in respect of a decision which the victim of abuse could make themselves, but for their mental incapacity.
This could include;
(a) an order prohibiting a specified person from having contact with the victim;
(b) an order enabling another person to bring court proceedings on behalf of the victim to recover the money and;
(c) an order appointing a deputy.
The High Court can also make freezing orders in relation to the victim’s accounts and property to prevent further
County Court Claims: Lifetime
Proceedings can either be brought by the victim (if they have mental capacity) or by someone on their behalf if they do not (known as a Litigation Friend). If the victim lacks capacity, an order must be made by the Court of Protection enabling someone to issue court proceedings for recovery on behalf of the abused person.
Applications can be made to the court for recovery of funds and/or the setting aside of transfers of an asset which have been conducted under undue influence, duress or fraud.
There are two types of undue influence; actual and presumed undue influence.
County Court Claims: After Death
Unfortunately, a relative may only uncover transactions which raise suspicions after the death of a relative, during the administration of the estate.
There is a distinction between undue influence in relation to testamentary gifts (who receives what under the deceased’s Will) and undue influence in relation to lifetime gifts (gifts the deceased made before their death)
When considering lifetime gifts made by the deceased before their death, again the key issues are actual undue influence and presumed undue influence.
The difficulty in these cases can be obtaining evidence. It will almost always be necessary to obtain bank statements, GP and hospital records and witness statements from friends and family members.
There are many red flags of potential abuse.
- Being pressured to lend money to a relative or friends.
- Being charged excessive amounts of money for services.
- People frequently requesting small amounts of money.
- Family members moving into your home without your consent and without prior agreement on sharing costs.
- Pressuring you to sign over your house or property.
- Taking money, cashing a cheque or using credit or debit cards without your permission.
- Pressuring you to change a will or sudden or unexpected changes in a will or other financial documents.
- Someone else taking charge of your benefits and not giving you all of your money.
- A change in living conditions or a lack of heating, clothing or food.
- Inability to pay bills/unexplained shortage of money.
- Unexplained withdrawals from an account.
- Unexplained loss/misplacement of financial documents.
- The recent addition of authorised signatories on a client or donor’s signature card.
- Failure to pay care home fees.
- Control of access to the victim or their home.
Preventing Further Abuse By Attorneys
What if you already have a Power of Attorney in place and you suspect that your Attorney may be taking advantage of their powers? In these circumstances you should consider a Deed of Revocation which removes the powers of the Attorney to manage your finances on your behalf. You should consider making a new Power of Attorney appointing a different attorney.
Sarah Young, Head of the Contentious Probate team at Ridley & Hall is an expert in dealing with these situations and can offer you advice tailored to your needs. Call us on 0843 289 4640 or fill in our online contact form to arrange an initial consultation.
1. Preventing Financial Abuse
Of course, taking steps to limit or prevent financial abuse happening in the first place is the easiest and best course of action. It may be as simple as drafting a Will or putting other measures in place to safeguard your assets.
If you suspect that you may be the victim of financial abuse in the future, or want to take steps to ensure that future decisions about your finances can be made when you may not necessarily have capacity, you should consider making a Lasting Power of Attorney. We can discuss all the options with you.
2. Preventing Abuse When The Victim Does Not Have Capacity
If concerns are raised about someone’s ability to deal with their own financial affairs and it is decided that they do not have mental capacity, then a Power of Attorney cannot be taken out. The option here is to apply to the Court of Protection for a deputyship order.
You should also report your concerns and suspicions to the local authority Adult Social Services department who can investigate matters and take any appropriate action.
The Wills and Probate team at Ridley & Hall are experts in dealing with these situations and handle them with the care and sensitivity they require. Call 0800 8 60 62 65.
3. Preventing Further Abuse By An Attorney When The Victim Doesn’t Have Capacity
If you suspect abuse by an Attorney but the victim does not have capacity, you are not able to revoke the Power of Attorney. The option here is to report your suspicions to the Office of the Public Guardian (OPG) who can investigate the Attorney’s conduct. The powers given to the OPG under the Mental Capacity Act 2005 allow them to direct that a Court of Protection Visitor visits the alleged victim of the abuse to obtain their understanding of the situation. They can also require the Attorney to produce accounts, specified information or documents to demonstrate how they have managed the donors’ finances.
Under the Mental Capacity Act 2005, any person taking action which relates to the care and treatment of a person who lacks mental capacity, provided it is in that person’s best interests, is protected from liability. This means that you should not be put off from reporting your suspicions.
If the concerns of the OPG are justified, they can apply to the Court of Protection for the removal of the attorney or the revocation of their powers (provided it has been registered). The OPG will make this application because they have no powers of enforcement; this comes from the Court of Protection.
In addition to applications by the OPG, anyone can apply to the Court of Protection on the basis that they believe an Attorney is not acting in the best interests of the donor, or exceeding their authority.
4. Preventing Further Abuse By Someone Other Than An Attorney
The Office of the Public Guardian can only take responsibility for investigating abuse where they have statutory powers to do so under the Mental Health Act 2005. This is where the suspected abuser is a registered Attorney or because they have an Order to do so from the Court of Protection.
If the actions of someone who is not an Attorney are suspected to amount to financial abuse, you should report your concerns to the Local Authority Adult Social Services for investigation under their own internal procedures.
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