1. In a Whirl

    In a Whirl Registered User

    Feb 23, 2015
    62
    Help!! My 88 year old father's bank accounts have been subject to repeated substantial withdrawals over the past three years & this was reported to Social Services.They in turn forwarded it onto the police. This week the case has been returned by the Police as my father had not had a mental capacity assessment done until recently & the presumption is therefore he knew what he was doing...despite his age & despite a diagnosis of dementia three years ago.

    The Office of the Public Guardian have declined to investigate since the abuse happened before the Power of Attorney was implemented.
    So where do I go from here?
     
  2. min88cat

    min88cat Registered User

    Apr 6, 2010
    581
    Hi In a Whirl,

    A diagnosis of dementia doesn't automatically make someone incapable of making financial decisions. Can you give some more details about who had been withdrawing the money, as without further details,it's difficult to comment.
     
  3. Sheepteach

    Sheepteach Registered User

    Sep 4, 2011
    161
    Somerset
    I had the OPG investigate my father's account as I believed my brother was abusing his role as joint attorney (with me). They too, told me that they couldn't deal with finances before the LPA was registered.

    I was advised (both by the kind people on TP and the OPG and CoP) that there was very little I could do unless I felt something criminal was happening, and to therefore to let it go. Very hard to do but for the sake of family relations I have done this, and my brother has accepted that he was not up to the job, and all but relinquished his role as attorney.

    All in all, it was very stressful at the time, but we had an acceptable resolution in an un-ideal world.

    Please see my other posts (Financial abuse?) and responses, if you wish, there may be some information of use to you there.
     
  4. In a Whirl

    In a Whirl Registered User

    Feb 23, 2015
    62
    Member of the family is the prime suspect. A little ray of hope today from the Action Fraud website. Thanks to whoever posted that on another thread

    Rather than theft it may come under fraud by abuse of trust.

    I also discovered you can get copies of cashed cheques from the bank so you see where the cheques are cashed & whose name was on them.
     
  5. Norfolkgirl

    Norfolkgirl Account Closed

    Jul 18, 2012
    514
    Rather than theft it may come under fraud by abuse of trust. If that's the case, why did the Police still not look at it?
     
  6. Kevinl

    Kevinl Registered User

    Aug 24, 2013
    4,781
    Salford
    If I've read it right then In a Whirl said in his/her posts:

    "the case has been returned by the Police as my father had not had a mental capacity assessment done until recently & the presumption is therefore he knew what he was doing"
    and
    "the abuse happened before the Power of Attorney was implemented."

    As far as the law will see it there is no actual proof at the time he lacked capacity (as the police said) and there was no POA active at the time so the issue of being "in a position of trust" doesn't arise (in the legal sense not the moral one). The police can't go back in time and assess In a Whirl's Dad's condition at the time he handed over the money and the OPG can't act as the POA wasn't active.
    A diagnosis of Dementia is not the same as being incapable, people with an early diagnosis can function for years and years before they lose capacity.
    It may well be the case that IAW and all his/her friends and relatives know what the situation is but unfortunately it would be very difficult to prove it in a court of law.
    Even if the cheques prove who got the money they didn't have POA (so no position of trust abuse) and it would now be difficult to prove the capacity at the time .
    You may unless there is a substantial amount involved and a reasonable prospect of recovering it just make the lawyers rich, if the "Member of the family is the prime suspect" got found guilty could she/he repay the money?
    I hope it goes well because people like this are the lowest of the low.
    Good luck
    K
     
  7. Onlyme

    Onlyme Registered User

    Apr 5, 2010
    4,999
    UK
    And presumably can read the handwriting that wrote the quote.
     
  8. Norfolkgirl

    Norfolkgirl Account Closed

    Jul 18, 2012
    514
    References re: SAFEGUARDING VULNERABLE ADULTS
    Title Website link
    No Secrets (Department of Health) http://www.leedssafeguardingadults.org.uk/documents/guidance/no_secrets.pdf

    Extracts: Section 2, Page 9+

    What constitutes abuse? In drawing up guidance locally, it needs to be recognised that the term ‘abuse’ can be subject to wide interpretation. The starting point for a definition is the following statement:
    Abuse is a violation of an individual’s human and civil rights by any other person or persons.
    In giving substance to that statement, however, consideration needs to be given to a number of factors.
    2.6 Abuse may consist of a single act or repeated acts. It may be physical, verbal or psychological, it may be an act of neglect or an omission to act, or it may occur when a vulnerable person is persuaded to enter into a financial or sexual transaction to which he or she has not consented, or cannot consent. Abuse can occur in any relationship and may result in significant harm to, or exploitation of, the person subjected to it.
    • financial or material abuse, including theft, fraud, exploitation, pressure in connection with wills, property or inheritance or financial transactions, or the misuse or misappropriation of property, possessions or benefits;
    2.8 Incidents of abuse may be multiple, either to one person in a continuing relationship or service context, or to more than one person at a time. This makes it important to look beyond the single incident or breach in standards to underlying dynamics and patterns of harm. Some instances of abuse will constitute a criminal offence. In this respect vulnerable adults are entitled to the protection of the law in the same way as any other member of the public. In addition, statutory offences have been created which specifically protect those who may be incapacitated in various ways. Examples of actions which may constitute criminal offences are assault, whether physical or psychological, sexual assault and rape, theft, fraud or other forms of financial exploitation, and certain forms of discrimination, whether on racial or gender grounds. Alleged criminal offences differ from all other non-criminal forms of abuse in that the responsibility for initiating action invariably rests with the state in the form of the police and the Crown Prosecution Service (private prosecutions are theoretically possible but wholly exceptional in practice). Accordingly, when complaints about alleged abuse suggest that a criminal offence may have been committed it is imperative that reference should be made to the police as a matter of urgency. Criminal investigation by the police takes priority over all other lines of enquiry.
    Title: Safeguarding Adults at Risk of Harm – A Legal Guide for Practitioners http://www.scie.org.uk/publications/reports/report50.pdf
    Notes:
    The Social Care Institute for Excellence (SCIE) was established by government in 2001 to improve social care services for adults and children in the United Kingdom.

    Page 177 – Section 13 Police, Crown Prosecution Service, coroners
    13.1 Key points
    As stated in No secrets vulnerable people should have access to criminal justice.
    13.1.1 Police and Crown Prosecution Service
    The police, CPS and the courts are central to the safeguarding of vulnerable adults in relation to criminal justice. Essentially, the police investigate and gather evidence, the CPS then decides whether to prosecute and the courts then decide on guilt and sentence.
    13.1.2 Other prosecuting authorities
    Some other bodies have powers to prosecute including, for example, the Care Quality Commission (CQC), the Health and Safety Executive (HSE) and local authority trading standards officers.
    13.2.1 Police investigations and arrests
    Under the Police and Criminal Evidence (PACE) Act 1984, the police have a number of powers relevant to safeguarding adults.
    Page 221
    20.2 Financial crime and mental capacity
    Sometimes practitioners are unclear about how to proceed if vulnerable people have capacity to make decisions about their money, but are giving it away and being very seriously exploited. There may be an assumption that legally this amounts to a gift and that the offence of theft therefore cannot be committed. This is not in fact necessarily so; the courts have held that in certain circumstances this could in fact be theft, if there is patent dishonesty involved, notwithstanding the presence of mental capacity.

    20.3 Theft
    Section 1 of the Theft Act 1968 states that a person is guilty of theft if he or she dishonestly appropriates property belonging to somebody else. The intention must be to permanently deprive the other person of the property. However, the appropriation will not be dishonest if the person believes he or she has a right in law to deprive the other person of it. It will also not be dishonest if the person believed that the other person would have consented, if the other person knew of both the appropriation and the circumstances.

    20.1.3 Families and professionals
    Sometimes it is people’s families who misuse their position to steal money, through theft, fraud or forgery. And professionals, too, in positions of trust in relation to vulnerable people, are sometimes implicated in these offences. This includes, for instance, accountants, solicitors, social and health care workers, bank staff, police
    officers and church ministers.

    Page 222
    20.3.1 Types of theft
    In the context of safeguarding, there are typical types of theft. For instance, care workers who are entrusted with a person’s bank card and PIN. Care workers visiting people in their own homes may systematically rifle through drawers, pockets or coats. Staff in institutions such as hospital or care home may steal a person’s
    belongings, from their locker or a drawer, for example. It may be on a larger scale, and committed by a care home manager who takes advantage of lax accounting procedures to plunder the bank accounts of residents.

    Pages 223/224
    20.3.4 Theft, gifts and mental capacity
    There seems often to be an assumption that if a person makes a gift to somebody else, but is judged probably to have the mental capacity to make that gift, then it could never be regarded as theft. This view often seems to prevail even if the making of the gift is associated with what appears to be serious exploitation. However, legal case law does not support such a blanket approach. This is because there have been major theft cases in the courts, which concluded that in some circumstances it is open to a jury to find theft.

    On appeal, the House of Lords ruled that it was not crucial as to whether the man had capacity or not. Instead, it was for the jury to decide whether, in all the circumstances, there was dishonesty, even if the man had technically consented to the money changing hands.
    This case supported an earlier one to similar effect.
    Stealing from a 99-year-old woman in a care home. A 99-year-old woman lived in a care home. Her affairs came under the control of the two care home owners. They drew cheques on her account and obtained a power of attorney and turned her assets in to cash paid into an account jointly held with the woman.
    They argued that the woman had made them gifts, and that if the woman had capacity, it could not be theft. The court held that ‘dishonest appropriation’ in the Theft Act 1968 did not necessarily mean ‘without consent’.

    20.4 Fraud
    Under the Fraud Act 2006, there are three basic fraud offences. These are fraud by (a) false representation, (b) failure to disclose information and (c) abuse of position (Fraud Act 2006, Sections 1–4). All three are relevant to this guide, but the third in particular because it involves people in a position of trust. It involves a person:
    • occupying a position in which he or she is expected to safeguard, or not to act against, the financial interests of another person • dishonestly abusing that position • intending, by means of the abuse of that position to make a gain for himself (or for herself) or for another person, or to cause loss to another or to expose
    another to a risk of loss. The abuse can consist of an omission as well as a positive act. Explanatory notes to the Act specifically envisage that this offence may be committed, for example, where a person who is employed to care for an elderly or disabled person has access to that person’s bank account and abuses their position by transferring funds to invest in a business venture of their own.
    Note: Previous offences under Sections 15, 15A and 16 of the Theft Act 1968, of obtaining property, money transfer or pecuniary advantage by deception, were repealed and subsumed by the Fraud Act 2006.

    Pages 230/231
    21.1 Undue influence
    One of these involves a concept known as ‘undue influence’. It applies to gifts and wills. This is where a person has mental capacity to conduct the transaction – the will or the gift – but has had their will overborne not just by the influence, but by the undue influence, of somebody else.

    21.2.3 Presumed undue influence
    Presumed undue influence differs from express undue influence. It applies only to gifts, not to wills. There are three key elements revolving around the unequal nature of the relationship between the two people, a disadvantageous transaction and whether an innocent explanation can be given by the person who has benefited. The more detailed explanation of these principles by the courts would seem to show the clear relevance of all this to safeguarding adults.
    Trust and confidence: vulnerability, domination, control
    Presumed undue influence involves one person taking unfair advantage over another, where the first person has gained influence or ascendancy without any overt acts of persuasion. The second person will have reposed trust and confidence in the first.

    Pages 232/233
    Undue influence and safeguarding
    Involving vulnerable adults as they generally do, cases of undue influence are clearly relevant to safeguarding.
    For practitioners, the following case is particularly relevant involving, as it apparently did, the local authority in facilitating the exploitation of an elderly man by a seemingly kindly and helpful neighbour. It is also of interest because the courts emphasised that undue influence can be found, even if there is no evidence of wrongdoing
    – a notable contrast, for example, with the requirements of criminal law.

    21.2.4 Safeguarding interventions and undue influence
    Interventions by practitioners involved in safeguarding might not seem straightforward in relation to undue influence, since many cases are brought by family members, often when the vulnerable person has died. However, there are various possibilities. First, in appropriate circumstances, if practitioners are sufficiently concerned about what they believe is likely to be undue influence, it may be appropriate to suggest to the person that he or she seeks independent advice. For instance, it would be normal for anybody to seek advice from a professional such as a solicitor or accountant before entering a major financial transaction.
    Second, it is possible in some circumstances that undue influence could be associated with a criminal offence, in which case it might be a police matter. Although undue influence is a concept in civil, equitable law – not criminal law – nonetheless it may in substance be relevant to a criminal conviction. This was explicitly mentioned in a major theft case, in which the courts confirmed that the making of a ‘gift’ by a person with capacity to make it could, in some circumstances, still amount to theft. This was on the basis of dishonesty, with reference to the fact that the notion of undue influence might be relevant to establishing that dishonesty.

    Title Website link
    NHS “Vulnerable Adults” http://www.nhs.uk/CarersDirect/guide/vulnerable-people/Pages/vulnerable-adults.aspx

    Observations:
    Vulnerable adults are people who are at a greater than normal risk of abuse. Older people are vulnerable, especially those who are unwell, frail, confused and unable either to stand up for themselves or keep track of their affairs……..
    Abuse can happen to older people in their home, in hospital, and in nursing and residential homes……….
    There are also material signs to watch out for, such as a sudden change in their finances, not having as much money as usual to pay for shopping or regular outings, or getting into debt. Watch out for any official or financial documents that seem unusual, and for documents relating to their finances that suddenly go missing.
    Title Website link
    Recognition and indicators of adult abuse: Financial or material abuse http://www.scie.org.uk/publications/adultsafeguardinglondon/indicatorsofabuse/financialabuse.asp

    Observations: Possible indicators of financial abuse
    Missing personal possessions
    Unexplained lack of money or inability to maintain lifestyle
    Unexplained withdrawal of funds from accounts
    Power of attorney or lasting power of attorney (LPA) being obtained after the person has ceased to have mental capacity
    Failure to register an LPA after the person has ceased to have mental capacity to manage their finances, so that it appears that they are continuing to do so
    The person allocated to manage financial affairs is evasive or uncooperative
    The family or others show unusual interest in the assets of the person
    Signs of financial hardship in cases where the adult at risk’s financial affairs are being managed by a court appointed deputy, attorney or LPA
    Recent changes in deeds or title to property
    Rent arrears and eviction notices
    A lack of clear financial accounts held by a care home or service
    Failure to provide receipts for shopping or other financial transactions carried out on behalf of the person
    Disparity between the person’s living conditions and their financial resources, e.g. insufficient food in the house
    Title Website Link
    Legal action to safeguard vulnerable adults falling outside the Mental Capacity Act 2005 DL –v- a Local Authority and Others (2012) - Practice areas affected: Safeguarding vulnerable adults
    http://www.trixonline.co.uk/website/news/pdf/policy_briefing_No-60.pdf
    a) Constraint: It does not matter for this purpose whether the constraint amounts to actual incarceration. The jurisdiction is exercisable whenever a Vulnerable Adult is confined, controlled or under restraint…. It is enough that there is some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do.
    b) Coercion or undue influence: …The kind of vitiating circumstances…. where a Vulnerable Adult's capacity or will to decide has been sapped and overborne by the improper influence of another…. Where the influence is that of a parent or other close and dominating relative, and where the arguments and persuasion are based upon personal affection or duty, religious beliefs, powerful social or cultural conventions, or asserted social, familial or domestic obligations, the influence may…be subtle, insidious, pervasive and powerful. In such cases, moreover, very little pressure may suffice to bring about the desired result.
    c) Other disabling circumstances: …The many other circumstances that may so reduce a Vulnerable Adult's understanding and reasoning powers as to prevent him forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs. No doubt there are others.

    Title Website Link
    Safeguarding vulnerable adults
    – a tool kit for general practitioners http://bma.org.uk/search?query=safeguarding vulnerable adults
    CARD 6 – PAGE 28 (from line 6 onwards)
    Examples here might be where an adult is offered a protective measure, such as a bed rail, but refuses.
    Such a situation is likely to be challenging to health professionals, and where possible, the options available to the individual, and the nature of the professional’s concerns should be discussed in detail, including presenting, where possible, a range of options to manage risk. Having said this, where a competent adult explicitly refuses any supporting intervention, this should normally be respected.
    Exceptions to this may be where a criminal offence may have taken place or where there may be a significant risk of harm to a third party. If, for example, there may be an abusive adult in a position of authority in relation to other vulnerable adults, it may be appropriate to breach confidentiality and disclose information to an appropriate authority. Where a criminal offence is suspected it may also be necessary to take legal advice.

    Title Website Link
    References re: Age UK + Government Inheritance Tax gifting advice/Law Society advice
    Title Website link
    Law Society – Making Gifts of Assets
    Law Society – Financial abuse http://www.lawsociety.org.uk/advice/practice-notes/gifts-of-assets/

    http://www.lawsociety.org.uk/support-services/advice/practice-notes/financial-abuse/
    Observations:
    1.2 What is the issue?
    Clients may ask about transferring property or investments to their next of kin, family members, or friends in order to mitigate large tax bills after their death, or as a means of providing funding for their future care. Whether they wish to gift assets or offer them at significant undervalue, you must advise your client about the benefits and risks of doing so, and clarify your role and responsibilities in the process.
    Some clients may have received advice from non-solicitor legal advice services that included unjustified claims about gifting of assets to avoid the assets being considered for inheritance tax or care fees liability.
    4 Advising your client
    In many cases, your client will be the person intending to make the gift, but you may be approached by a next of kin acting on their behalf. In this case, you should confirm your instructions with the client in person, preferably in private, so as to ensure that they are capable of making the decision and that they have not been unduly influenced by the donee or next of kin.
    6.1.3 Anti-avoidance measures and deprivation of assets
    In most cases, the intention behind making gifts of assets is the most important factor. If a local authority believes that an asset has been given away with the intention of creating or increasing entitlement to means tested benefits, it may decide that the donor has notional capital of equivalent value to that of the asset given away.
    Your client will be particularly vulnerable if they are deemed to have notional capital since, although the local authority is obliged to provide care, this does not have to be in a residential home. Moreover, your client may not be entitled to financial assistance towards the fees. The local authority may still be obliged to provide care, but the local authority could seek payment using debt recovery methods, as in the case of Robertson v Fife [2002] UKHL 35.
    A local authority financial assessment must follow the needs assessment………..However, the person might qualify as a vulnerable adult, regardless of notional capital, where they are in need of such accommodation because they cannot arrange their care or no longer has any resources to fund their care.
    If the local authority believed that a significant part of the intention to transfer an asset was to increase entitlement to financial assistance, they could impose a charge on the asset after it had been gifted, or even recover the asset. For a local authority to pursue a claim they would have to show what the donor's intention was at the time of disposal. It may be difficult for the donor or donee to give evidence as to the donor's intentions and if another purpose of the gift cannot be established or indicated, the judge may conclude that it must have been to avoid means testing.
    One way to establish the intention is the foreseeability or immediacy of the need for care……….. If, for example, your client was fit and healthy and could not have foreseen the need for residential care, it would be unreasonable for the local authority to treat the transfer of assets as deliberate deprivation. However, Yule v South Lanarkshire Council [1999] 1 CCLR 546, states that there was no time limit on local authorities when deciding whether a person had deprived themselves of assets for the purposes of avoiding residential care fees.
    If a local authority were to pursue a claim for care funding, your client could challenge that decision but would bear the burden of proof that the authority's decision was Wednesbury unreasonable - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB233). This process could be protracted, involving local authority complaints and ombudsman procedures, and this could be very stressful for your client and expensive if it involves court proceedings.
    Although some local authorities have threatened to use insolvency proceedings, few have actually done so, perhaps because of lack of expertise, cost or the prospect of bad publicity. However, with increasing pressures on local authority resources to provide community care services, the incidence of this may rise in the future. There is evidence that families can be placed under considerable pressure to pay for care, even where the gift was entirely innocent.
    Financial abuse
    1.1 Who should read this practice note?
    All solicitors who advise clients that are or may be at risk of financial abuse, in particular those conducting private client work involving financial planning, execution of wills or LPAs.
    1.2 What is the issue?
    As a result of economic recession, social change and advances in technology the risk of financial abuse is increasing. Solicitors are well placed to identify possible or actual financial abuse in the context of particular retainers.
    You have a responsibility to be aware of financial abuse and to understand your role in both preventing it and taking action to protect clients who have been financially abused. Financial abuse covers a wide variety of activities from mishandling finances to fraud, but may broadly be described as a violation of an individual's rights relating to their financial affairs or assets. Anyone can be a victim of financial abuse, but particular groups may be especially at risk. Age and specific disabilities may have an impact on the individual's capacity to make decisions which places them at increased risk of abuse.
    People with learning disabilities or other conditions that have led to cognitive impairment, and in some instances, people who have poor mental health may also be particularly at risk.
    This practice note is aimed to assist you in identifying and acting upon suspected or actual financial abuse in the course of your practice.
    2 Financial Abuse
    2.1 What is financial abuse?
    There is no statutory definition of financial abuse. However, statutory guidance published by the Department of Health entitled 'No Secrets' defines financial abuse as follows:
    'Financial or material abuse, including theft, fraud, exploitation, pressure in connection with wills, property or inheritance or financial transactions, or the misuse or misappropriation of property, possessions or benefits. (DH/Home Office, 2000)'
    2.2 Forms of financial abuse
    'No Secrets' is the English guidance to local authorities on safeguarding, and it identifies financial or material abuse as including a range of activities, which are listed below with examples of how they might manifest in practice.
    • Theft - either physically, or through transfer of funds from the vulnerable person
    • misappropriation or misuse of money or property - for example, improper use of money or assets when handling it for a vulnerable person under informal arrangements
    • exerting undue influence to give away assets or gifts - this can include placing inappropriate pressure on a vulnerable person to change their will, or make gifts they otherwise would not or signing over the family home to one relative when the older person is about to go into residential care
    • putting undue pressure on the older person to accept lower-cost/lower-quality services in order to preserve more financial resources to be passed to beneficiaries on death
    • carrying out unnecessary work and/or overcharging - for example, tradesmen advising repairs for non-existent problems to property, or offering a service such as will writing accompanied by pressure selling, work for which is overcharged, and/or charged in advance
    • misuse of older persons' assets by professionals - for example, by accountants or legal professionals with access to client funds
    • misuse of enduring/lasting powers of attorney - use other than as intended or further than as limited by the document
    • misuse of welfare benefits by appointees appointed to manage such benefits on behalf of a person lacking capacity to manage them
    • misuse of Direct Payments by paid carers or family members instead of using the money for the benefit of the recipient
    • salesmen encouraging certain people with learning disabilities who may lack capacity for their finances to enter into contracts or changing suppliers (for example for mobile phone services) when they do not understand their contractual responsibilities. This can also arise with older people, who may have limited capability to understand such contracts
    • apparent theft or loss of possessions, for example in contexts such as hospitals or care homes, or where people have carers at home. Assumptions that a person is fully protected once in these contexts should be avoided, as they can remain vulnerable to any of the above forms of abuse.
    3 Identification of adults vulnerable to abuse and precautions to be taken
    3.1.1 Older people
    In particular, older people are extremely vulnerable to financial abuse whether perpetrated by relatives, carers or strangers.
    You should not assume that any person accompanying your client has their best interests at heart. You should be alert to the nature of the instructions you receive and the manner or behaviour of someone who accompanies the client.
    A study found the following factors predispose an older person to financial abuse. This is not an exhaustive list and some factors may apply to persons other than older people:
    • advanced age
    • stroke
    • dementia or other cognitive impairment
    • physical, mental or emotional distress
    • depression
    • recent loss of spouse or divorce
    • social isolation
    • middle or upper income bracket
    • taking multiple medications
    • frailty
    3.1.2 Other vulnerable adults
    While older people may be particularly vulnerable other groups may also be vulnerable to financial abuse, including individuals with learning disabilities, poor mental health and acquired brain injury (eg stroke).
    People with sensory impairments may also be at particular risk of abuse, especially where they are relying on others for information and assistance managing their affairs.
    Under this definition, a vulnerable adult is a person over 18 years of age who:
    'is or may be in need of community care services by reason of mental or other disability, age or illness and who is or may be unable to take care himself or herself, or unable to protect himself or herself against significant harm or serious exploitation.'
    The Law Society acknowledges the view of many stakeholders that use of the word 'vulnerable' can be perceived as negative and can undermine the fact that the fault of any abuse lies solely with the perpetrator.
    'Vulnerable adults' has been used in this document only for clarity as the existing legal term used in applicable guidance, and is only intended to refer to people at greater risk of financial abuse.
    Capacity can fluctuate over time alongside other circumstances such mental health problems, and you should therefore assess capacity at the point a decision is being made by the client.
    People with fluctuating mental health conditions may be aware that their capacity to instruct and to manage their financial affairs can vary, and may want advice to help them plan for times when they lack capacity. See section 3.3.2 on 'Capacity to instruct a solicitor' for further details.
    3.2 What to be alert for - known indicators for abusive activity
    Financial abuse indicators can include the following scenarios and even though these indicators have been set out for elderly persons, they can also be found in financial abuse of other client groups such as people with learning disability etc:
    • signatures on cheques, or other documents that do not resemble the vulnerable person's signature or are signed when the person is unable to write
    • any sudden changes in bank accounts, including unexplained withdrawals of large sums of money by a person accompanying the vulnerable person
    • the sudden inclusion of additional names on an vulnerable person's bank accounts or benefits payments - often these individuals are unrelated to the older person
    • abrupt changes to or creation of wills that leave most or all of the assets to a new friend or only one relative
    • the sudden appearance of previously uninvolved relatives claiming their rights to a vulnerable person's affairs and possessions
    • unexplained sudden transfers of assets to a family member or someone outside the family
    • numerous small sums of cash being 'given' to, or money regularly disappearing after visits from a relative or neighbour
    • numerous unpaid bills when someone else is supposed to be paying bills for the vulnerable person
    • unusual concern by someone that an excessive amount of money is being expended on the care of the vulnerable person
    • lack of amenities such as TV, personal grooming items, appropriate clothing items, that the vulnerable person should be able to afford
    • the unexplained disappearance of funds or valuables such as jewellery
    • deliberate isolation of a vulnerable person from their friends and family, resulting in the carer alone having total control.
    While solicitors may be more likely to notice some indicators than others and depending on the nature of their practice (for example, with regard to will making, gifts or transfer of assets), they may also become aware of others during the course of their work for a client.
    3.3 Identification and the assessment of capacity
    Clients who may exhibit particular vulnerability to financial abuse may also lack capacity to provide instructions for a transaction.
    Clients who lack capacity may be at greater risk of abuse; for example, they may not understand the risks and consequences of making a substantial gift of their assets or of transferring their family home into the names of relatives.
    Solicitors are service providers under equality legislation and you should use plain English when speaking or writing to the client about measures that would protect them from abuse.
    If your client does lack capacity, then your role and obligations are different to when the client has capacity. The assessment of mental capacity is governed by the Mental Capacity Act 2005 (MCA 2005).
    3.3.2 Capacity to instruct the solicitor
    If you are in any doubt as to whether a client has capacity to provide instructions, you must perform a capacity assessment before any instructions are acted upon.
    The assessment should be conducted with the client alone without other family members being present. It should not be assumed that anyone accompanying the client has their best interests at heart.
    However, it may be useful to observe how any relative or friend who has accompanied the client behaves towards the client and vice versa to identify whether there is the possibility of undue influence or pressure.
    3.3.3 MCA 2005 and undue influence or misuse of power
    Under MCA 2005, there remain a number of decisions where case law determines whether or not the person has the capacity to decide a matter.
    This includes capacity to make a will (Banks v Goodfellow (1870) LR 5 QB 549) and capacity to instruct a solicitor to take legal proceedings ( Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889).
    There are a minority of cases where a person may appear to have capacity under the MCA 2005 test but actually lacks capacity when they come under pressure from powerful relatives or friends. This can happen for example, to someone in the early stages of dementia or with a mild learning disability.
    In DL v A Local Authority & Ors [2012] EWCA Civ 253 the Court of Appeal used its inherent jurisdiction to protect such vulnerable adults.
    4.2 Gifts
    Clients should be made aware of the nature of any gift as an outright transfer, and should be made aware of the risks any substantial transfers may increase regarding their ability to support themselves independently.
    Potential beneficiaries of the client's will, such as family members, may have encouraged the client to make a gift in order to avoid taxes or nursing home fees.
    As well as advising the client of the risks to their future independence that such gifts might entail, it may not be an effective way to avoid tax.
    Further, the local authority may treat this gift as a deliberate deprivation of assets for the purpose of avoiding paying residential or nursing home fees, which results in the local authority charging full fees to the client.
    For further information on gifts of assets, solicitors should refer to the Law Society Making gifts of assets practice note.
    4.3 Wills
    When drafting wills, you should be particularly alert for potential abuse in the following instances:
    • where the person making the will is not being allowed individual access to their finances
    • where instructions come from a third party
    • where instructions are coming from a third party who is to benefit from the will
    • where a third party is always present at an interview with the solicitor
    • where a third party is using their own solicitor to prepare a will for a vulnerable person who has previously had their own solicitor.
    5 Addressing suspected abuse - what steps to take
    5.1 Confidentiality
    General guidance on the common law of confidentiality, data protection and freedom of information principles is available in SCIE Report 50: Safeguarding adults at risk of harm and No Secrets.
    It is important to note that guidance available on confidentiality has been substantially reduced under the new SRA Code. Chapter 4, Outcome 1 requires that:
    'the affairs of the clients are kept confidential by you and your firm unless disclosure is required by or permitted by law or the client consents;'
     

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