AN INTRODUCTION TO
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
Remedies for
Financial
Abuse
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 ……
AN INTRODUCTION TO