Managing compensation after a spinal injury
Within the last few years, the number of cases that have been referred to professional deputies by the Court of Protection that include an element of financial abuse has soared. With over 3,000 investigations conducted by the Office of the Public Guardian (“OPG”), the supervisory body for all attorneys and deputies, in 2019-20 alone. Over 30% of these investigations resulted in court proceedings and potentially the removal of an attorney and/or the appointment of a professional deputy. This is a worrying trend and one that only seems to have been exacerbated by the COVID crisis.
In many cases, the abuse has been inflicted by those who are closest to the person in question, and the aftermath can have devastating consequences on their financial position and also their health and wellbeing. It is therefore vital that the signs of financial abuse can be spotted as early as possible to limit the damage caused and to help those who are suffering.
Who commits financial abuse?
In many of our cases, the people who commit the financial abuse are often the people you would least expect, including family, friends, neighbours and carers – those with whom the victim is closest and trusts and relies upon. In many cases they are the people that have been specifically appointed to protect the assets of the abused, such as an attorney or attorneys under a Lasting Power of Attorney/Enduring Power of Attorney (“LPA”/“EPA”), a deputy or other professional. It is the relative ‘closeness’ to the victim that allows ease of access to their finances and is why many of these cases go unrecognised.
If someone has caused financial loss which would be deemed as financial abuse or undue influence, it does not necessarily mean that the abuse was intentional. In many cases the abuser has an honest belief that they have a legal or moral right to the funds. For example, where a child has been appointed to act as attorney under an LPA and proceeds to take funds held by the parent on the premise that it is an ‘early inheritance’. This is just one in a number of scenarios that may be deemed as financial abuse by the Court.
Examples of financial abuse or undue influence
Below is a non-exhaustive list of examples that may constitute financial abuse and/or undue influence and of course there are many different ways in which this type of abuse can occur. The abuse below may occur where the victim still has mental capacity to make their own decisions or where they may lack all mental capacity to make any decisions regarding their financial affairs (this would be where an attorney or deputy may be appointed):
Signs to look out for
It is an unfortunate fact that many cases of financial abuse will go unnoticed and/or unreported. Most victims tend to be reluctant to discuss their financial affairs with others due to embarrassment or undue influence from the person committing the abuse. In many cases where the victims lack capacity, they may not have the ability to understand what is happening to them to be able to ask for help. Therefore it is important that subtle signs of abuse are noticed where they can be, such as:
Again, these are just a handful of the potential signs of financial abuse that can occur, so it is always best to be vigilant.
For those who are acting in a professional capacity, such as attorneys or deputies, then it is a fundamental part of your role to be aware of the authority you have, as well as the legal restrictions placed on you. Merely having an LPA or Deputyship Order does not give blanket authority to take any action regarding the donor’s financial affairs as any decisions you make must be in that person’s best interests. If you are unsure, it is always best to check the LPA or Order and seek professional advice where necessary.
What to do if you suspect financial abuse
If you suspect someone is the victim of financial abuse; please contact the OPG if you are aware that the person is a donor under an LPA or deputyship. If there is no LPA or deputyship in place, or you are unsure as to whether there is one, please contact social services to raise a Safe Guarding Alert. Both organisations will look to make further enquiries and, if necessary, take steps to protect and prevent any further abuse.
If you have any concerns about capacity, or if you are contemplating making a LPA for the first time, please get in touch with our team for more information.
Lauren Eyre joined Kingsley Napley's Court of Protection team in 2017, she deals with the management of deputyships, with a focus on clients diagnosed with dementia and those that have suffered medical negligence resulting in serious brain injuries and long term impairments. Lauren qualified as an Associate, Chartered Legal Executive via CILEx in 2020.
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