Feature

posted 3 Aug 2005 in Volume 10 Issue 5

Tackling abuse: Part two

Anne Edis, chairman of Solicitors for the Elderly, continues with the second part of a two-part article on tackling abuse. The first part looked chiefly at signs of abuse, while this second part goes on to assess methods of handling suspected cases of abuse, whether it be in the home or in care.

Dealing with abuse in the home

This is often hidden abuse, particularly where there is one-to-one dependence on carers, where supervision is weak and there is little or no contact with others who might otherwise pick it up. Detection may be poor if the various agencies involved in providing care do not communicate with each other.

Abuse may be identified by professionals involved, such as the social worker during a community-care assessment (which for older people should be part of the single assessment process in England or the unified assessment process in Wales); the independent mental capacity advocate appointed under the Mental Capacity Act 2005, in force in Spring 2007; the Lord Chancellor’s General; or medical visitors.

For those in receipt of social-services assistance, there should be a review by social services three months after the start of service provision and at least annually thereafter. For extremely vulnerable clients, more frequent review may be necessary. The review by social services should identify inappropriate care packages and placements in unsuitable care homes. Often the first indication of abuse may be the issue of raising complaints about service delivery that may expose the abuse.

Move quickly and alert social services and the local authority monitoring officer, as well as raising complaints.

Abuse by the paid carer can be dealt with in a similar manner as complaints in care homes, albeit the complaint should be made to the care agency. Their fitness for employment will relate in part to Criminal Records Bureau (CRB) and protection of vulnerable adults (POVA) checks. However, there is no equivalent of reporting adverse incidents as there is in care homes. This makes it all the more important to ensure that clients make thorough checks about the people who care for them and arrange for some monitoring of care in the client’s own home.

Independent care provider

Day care, healthcare and personal assistants employed directly, such as under the direct-payments agreements, remain unregulated, so raise the possibility of hidden abuse. The individual will need to be confronted directly and, if necessary, the police called to investigate.

Advisers may be able to prevent abuse by considering contracts and terms of employment, as well as carrying out CRB and POVA checks and setting up supervision systems, particularly in relation to financial management. Advisers should ensure that adequate references are followed up. Direct employment of those who have left agencies and have poor track records or about whom there may be suspicions is inherently risky.

Dealing with abuse in care homes

On suspicion or detection of abuse, complain to the proprietor of the home. All care homes are required to have a published complaints procedure. Charities such as Help the Aged, Age Concern and the Alzheimer’s Society at local level may offer advocacy support and help in presenting complaints.

If the abuse occurred as a result of another resident or visitor, the home may still have some responsibility, particularly if they knew of the risk and failed to take action to avoid the abuse from happening. The home may remove, dismiss or prevent the perpetrator from being in the home. They may also decide to call the police to investigate. The vulnerable adult may also have a civil claim against the home. The types of claims depend on the nature of the abuse and are explored later.

If the internal complaints procedure does not provide the required solution, it may be necessary to report the matter to the Commission for Social Care Inspection (CSCI) and/or the Commission for Health Audit and Inspection (CHAI), also known as the Healthcare Commission. This will trigger an immediate response and reaction including interviews under caution. At the same time, contact the local social-services department, the NHS and the primary care trusts (PCT)/local health board who may place residents and commission care in the care home, or use the care agency that employs the carers.

Social-services provision

Where the care is being provided by social services, the complaint can be made using the local authority complaints procedure. Social services should provide the complainant or their representatives with details of how to complain. The complaint will be dealt with at local level but if the desired outcome is not reached, the complaint can be pursued through to the independent stage. From October 2005, this stage will be taken over by the CSCI.

The General Social Care Council, the regulatory body for the social-care workforce, was established by the Care Standards Act 2000. All those working in social care are required to undergo annual continuing professional development in order to stay on the register and to comply with professional standards. The registration process is still in its early stages so that there are opportunities to be involved in the training programme.

The regulatory authorities for care homes and domiciliary care

The Commission for Social Care and Inspection (CSCI), as well as the Commission for Health Audit and Inspection (the Healthcare Commission), are the successors to the National Care Standards Commission and were established as a regulatory body under the Care Standards Act 2000.

As an inspection and registration body they are the main organisations for ensuring that care providers meet national minimum standards. The CSCI’s regulatory mandate covers all care homes that provide personal care in the private, local and voluntary sectors. Their regulatory role also covers domiciliary care. The Healthcare Commission has a similar role in respect of care homes that provide nursing care. Both inspection bodies are, as a result of s.21 of the Health and Social Care Act (Community Health and Standards) 2003, under a duty to co-operate. Both bodies can inspect on behalf of each other so it may be possible for one inspection body to inspect the overall position, particularly in a dual-registered home, and this may give a better overall picture as to conduct and practice within the care home.

The importance of the regulatory authorities lies in the fact that they have statutory powers to require service providers to notify them of events that could be indicative of unacceptable occurrences that might amount to abuse. This includes incidents, which give rise to serious injury or death, events that adversely affect the wellbeing (this is a very widely interpreted obligation) or safety of the service user, and allegations of misconduct by the registered person or anyone who works in the home.

The national minimum standards place requirements on the service provider that service users are to be protected from abuse. The requirements include:

Protection from physical, financial or material harm, psychological or sexual abuse, neglect, discriminatory abuse or self harm, inhumane or degrading treatment, through deliberate intent, negligence or ignorance, in accordance with written policies;
Putting robust procedures in place to respond to suspicions or evidence of abuse or neglect and passing these concerns to the registering authority in accordance with the No Secrets and In Safe Hands guidance and the Public Interest Disclosure Act 1998;
Follow-up action in relation to all allegations or incidents of abuse;
Staff who are considered to be unsuitable to work with vulnerable adults are to be referred for placement on the Protection of Vulnerable Adults (POVA) register register and this is to be recorded on the inspection reports;
Policies and practices to be in place so that physical and/or verbal aggression by service users is understood and dealt with appropriately;
Policies to be in place to protect abuse of service users’ financial affairs;
Complaints procedures are in place and made known, including a requirement that written information should be provided to all service users for referring a complaint to the registering authority at any stage should the complainant wish to do so.

Advisers need to anticipate a move into care by setting up a protective framework in relation to financial matters, checking care contracts and inspection reports, and keeping full records of assets and personal possessions at the start of occupancy. A trial period at the home is useful to see how things are run and quality of care given. Talking to other residents and their families can also be helpful as can speaking to social services about their experience with a particular home.

For a couple of years, the care home’s inspection reports may highlight problems, for example, whether or not the home has a reputation for poor practice or has reported staff to POVA for abuse. The home should undertake a Criminal Records Bureau (CRB) check, prior to employing staff.

The formal inspections are limited to two visits per year. One of these visits is on notice, which means that the inspectorate often receives a false impression about the care home. In the parliamentary ‘Report on Elder Abuse’ in March 2004, the Select Committee recommended that there should be a review of the frequency and effectiveness of inspection of establishments providing care for the elderly. Reporting poor standards and/or suspected abuse will trigger other inspections, which can be very effective in limiting abuse and getting rid of the perpetrators.

Death in a care home

All deaths in care homes have to be notified to the CSCI or Healthcare Commission. The information submitted must include details of the circumstances of death. Records of deaths may indicate trends and could potentially identify areas of abuse. GPs who are called into care homes to certify death are in a position to observe whether anything untoward has happened. Advisers who have concerns about the death of a client should consider contacting the inspection body or the GP concerned.

The Births and Deaths Registration Act 1953 imposes a requirement on the doctor who last attended the deceased to issue a medical certification of death. This has the potential to identify abuse, but Dr Harold Shipman highlighted the potential for abuse of the system of certification. A particular issue that may arise in this context is where GPs own and run care homes or their relatives own and run care homes.

Dealing with abuse in the NHS

The NHS does present risk factors for abuse particularly in wards dealing with psychiatric patients and patients suffering from dementia. These risks are often highlighted in police enquiries into the death of large numbers of patients, either in a hospital or related to GP practices, and the issue has been brought to the fore by the Shipman enquiries.

A complaint can be made using the NHS complaint’s procedure. The Patient Advice and Liaison Services, based in local hospitals in England or Community Health Councils in Wales can provide information about the NHS complaint’s procedure. In England, see the National Health Service (Complaints) Regulations 2004 SI 2004/1768. Complaints in the NHS: A Guide to Handling Complaints in Wales was published by the Welsh Assembly Government in April 2003.

Independent complaints advocacy services have been set up in every PCT to provide an advocacy service for those making a formal complaint about NHS services. These are, in the main, run through Citizens Advice Bureau but for exact details see www.dh.gov.uk/complaints/advocacyservicelists.htm

The complaint should be made in writing within six months of the incident forming the basis of the complaint, or within six months of becoming aware of the circumstances about which you want to complain. The complaint should be made no longer than one year after the incident took place. In exceptional circumstances, these time limits may be waived. The complaint will be dealt with at local NHS level and in the event that this does not provide the desired outcome, the complaint can be continued to the Healthcare Commission, which manages the independent stage of an NHS complaint. In Wales, the independent stage is managed by the Independent Review Secretariat.

If after going through the NHS complaint’s procedure, the desired outcome has not been reached, the complaint can be pursued through the health service commissioner, also known as the ombudsman.

Remedies for financial abuse by the attorney

How the adviser proceeds depends on whether the donor of the power has capacity. If the donor has capacity then they can revoke the power, notify the attorney and any financial organisation that has had notification of the power. Revocation may be very difficult if the donor is frightened of the ramifications and should be dealt with sensitively. The adviser owes a duty of confidentiality, which must not be breached. Obtain the client’s consent to proceed.

Notwithstanding the loss of mental capacity, the adviser continues to owe the donor a duty of confidentiality. However, he must always act in the client’s best interest and this would allow the adviser to do such acts to safeguard the client’s assets. This may include reporting matters to the Public Guardianship Office’s Investigation Unit for further investigation and advice as to how to proceed where financial matters are involved. An attorney acting under a registered or unregistered power may also be reported by the vulnerable adults team in social services. Where professional attorneys are involved then it may mean speaking to the ethics division of the Law Society and reporting the matter to the Law Society. It may also be advisable to report the matter to the managing partner in the firm concerned.

Section 5 of the Enduring Powers of Attorney Act 1985 enables the Court of Protection to make appropriate orders before registration, where it has reason to believe that the donor is or may be becoming mentally incapable. Although the court does not usually require medical evidence to prove incapacity, they would need to see evidence to become involved prior to registration. The completion of form CP3 medical certificate can be used. On receipt, the court can then ask the attorney to register the power. The matter can be resolved as an objection to registration can then be made.

If the attorney does not register the power, or if the power has been registered and there are subsequent problems, the court can revoke the power and appoint a receiver to act instead. The court has wide power to authorise court proceedings for recovery in the civil courts; this may involve claims of fraud, coercion, undue influence, lack of capacity and breach of fiduciary duties. The 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. It may also be appropriate for criminal charges to be brought by the police against the attorney.

Remedies for financial abuse by others

Any person who gains unauthorised access to the vulnerable adult’s finances and takes assets belonging to another can be charged with various criminal offences and the police should be called. It may be possible for the police to recover the money, as they will be crime proceeds. Alternatively, civil proceedings may have to be commenced.

It may be necessary to involve the Department of Works and Pensions (DWP), particularly if the perpetrator is an appointee or agent or third party acting under a mandate set up with a bank or other financial organisation. These should be cancelled and the organisations made aware of the position.

The DWP Fraud Investigation Unit should be contacted and their advice sought. Banks and other financial organisations also have fraud-investigations teams.

Where a receiver is suspected of abuse, the PGO investigation team will decide how best to proceed. The PGO can also act where no receiver or attorney is appointed, once they have reason to believe that the person is within their jurisdiction, that is, that the person is unable because of mental capacity to manage their own finances and affairs.

Remedies for physical and sexual abuse
Criminal proceedings

Slapping, hitting, pushing, shoving and administering any kind of physical damage to a vulnerable person amounts to assault and battery, and is therefore a matter for the police and the inspection bodies. A wide range of criminal charges can be brought against the perpetrator. In particular, common assault, sexual assault, rape, actual and grievous bodily harm, and murder or manslaughter charges. It is imperative to obtain evidence as soon as the abuse has been identified. In practice, it may be difficult to obtain a medical report from the victim’s own medical practitioner if he cares for both the perpetrator and the victim or may feel insufficiently qualified to prepare such a report. In any event, the local police surgeon is likely to be involved. If the perpetrator is convicted, the court can make an order for compensation, which unlike the civil system, is based on ability to pay and so may be low.

It may also be helpful to obtain photographs of any injuries that have been incurred as a result of neglect or abuse, particularly in cases of physical or sexual abuse.

Criminal injuries compensation

Victims of violent crimes can apply to the Criminal Injuries Compensation Authority for payment of compensation. It does not matter that a prosecution was not brought or that the perpetrator could not be held responsible if he was suffering from a mental disorder. The claim must be brought within two years of the date of the incident and any responsible person on behalf of a victim who is mentally disabled can make a claim.

Compensation in the civil courts

Under the civil law of trespass to the person (which encompasses assault and battery), it is possible for the victim to sue for compensation. Trespass to the person is a wrong committed against the personal security or personal liberty of one person to another. The act must be either intentional or negligent and without the victim’s consent. It is also possible to claim compensation for any personal injury suffered.

Injunctions under the common law

Obtain a common law injunction to stop future abuse and/or stop a person entering the victim’s home. They cannot be used to exclude a person who has a right

to occupy the property and there is no power of arrest for breaching this type of injunction.

Harassment injunctions

Under the Protection from Harassment Act 1997, the police can arrest and charge a person for harassment. Harassment includes nuisance phone calls, stalking, threats, excessive noise etc, and covers any behaviour that causes ‘alarm’ or ‘distress’. Alternatively, an ‘Anti-Harassment Injunction’ may be obtained from the County or High Court. Compensation for ‘anxiety’, ‘distress’, ‘alarm’ or financial loss can be made at the same time.

Domestic injunctions

The Family Law Act 1996 enables an injunction to be granted excluding the abuser from the home and restraining conduct. Breaches can be dealt with by a fine or imprisonment. If there is cause, it is possible to obtain an interim injunction without giving notice to the abuser, pending a final hearing. Injunctions can be obtained against ‘associated persons’, defined in s.62 (3) as people who:

Are or have been married to each other;
Are or have been cohabitants (defined as a man and a woman, not married to each other but living together as husband and wife);
Have lived in the same household (other than one of them being the other’s tenant, lodger, boarder or employee). This does not therefore include those in lesbian and gay relationships and those sharing a house;
Are relatives (this is defined to include most immediate relatives);
Have agreed to marry (evidence by a written agreement, the exchange of a ring or a witnessed ceremony);
In relation to a child (they are both parents or have had parental responsibility for a child);
Are parties to the same family proceedings (other than under Part IV of the Act, but excluding the local authority).

Over medication

The over and inappropriate medication of elderly people, particularly with anti- psychotic medication, is a matter of serious concern, and may amount to abuse, if it is used as a tool for behavioural management. The administration of this type of medication poses a particular risk to elderly people and the lack of training in the administration of these drugs, particularly by unqualified staff, is worrying. The Alzheimer’s Society states that the over-prescription of neuroleptic is a common form of physical abuse that is often used to sedate the elderly with dementia in hospitals and care homes.

It has been identified that there are insufficient local-prescribing guidelines in relation to powerful painkilling drugs; a lack of rigorous review of pharmacy data on high levels of prescribing on wards/care homes caring for the elderly; absence of supervision of prescribing; and a lack of multidisciplinary assessment to determine care needs and medication.

Healthcare records may be obtained under the Data Protection Act 1998, when requested by a receiver or attorney who has a registered enduring power, or the written consent of the patient with capacity, to enable the monitoring of the client’s medication.

The Government’s National Service Framework for Older People is helpful in that it recommends that all those over 75 years who receive prescriptions for more than four drugs at any one time should have an annual review of their prescriptions. Locally, the PCTs should monitor these issues closely.

If over medication is observed then make a complaint to the management and/or the inspection body concerned and, if appropriate, the police.

Restraint

While medication is an artificial form of restraint, actual physical restraint of vulnerable people is also a serious issue. This can be by placement of furniture, physical confinement or electronic tagging, and are totally unacceptable. It may also include locking people in their rooms and ignoring their needs. The use of cot sides is an action that can only take place if informed consent has been given and/or agreement reached with the family that they should be used. Other forms of restraint considered to have the potential to be considered criminal offences include: restriction of liberty by locking someone in their room; misuse of furniture or equipment including bedrails and Buxton chairs (chairs that restrain or restrict movement by the use of integral tables); unsafe or outmoded restraint practices that risk physical injury.

Such restraints may amount to the tortuous act of negligence or trespass to the person and/or a criminal offence of assault and battery.

Remedies for psychological abuse

Due to its nature, psychological abuse can be difficult to detect. It may be possible to obtain an injunction if it amounts to harassment and for criminal proceedings to be brought. See above under ‘harassment injunctions’.

Remedies for neglect

Most of the interventions likely to occur within the abuse of neglect will involve the local authorities and the NHS.

Service provision by social services

Section 47 of the NHS and Community Care Act 1990 requires local authorities to carry out assessments for people who may be in need of community-care services. Vulnerable neglected adults should be entitled to an assessment. It is unlikely that the neglected person will ask for an assessment and will rely heavily on ‘whistle blowers’ to notify possible neglect. Service provision may be made where the individual qualifies under the local authority’s eligibility criteria. The individual will be means-tested to contribute towards the cost of the service.

Removal order under the National Assistance Act 1948

Section 47 of the National Assistance Act 1948 can be useful in extreme cases to remove a person from their home to a hospital or other specified place, in order to provide necessary care and attention. The person would have to be suffering from a grave chronic disease, be elderly, infirm or physically incapacitated and living in unsanitary conditions. The person must be unable to devote to himself, and is not receiving from anyone else, proper care and attention. The removal must be in the interest of the person or to prevent injury to the health of, or serious nuisance to other people. Application is made by social services with medical support to the Magistrates Court. The order can last up to three months and is renewable with no right of appeal so this section is rarely used. In urgent situations, under the National Assistance (Amendment) Act 1951, it is possible to obtain immediate removal without giving notice to any person involved, which lasts only three weeks. However, it can be very difficult to get this kind of order and they are rarely sought by the local authorities. Conditions will need to be extreme and, if possible, other means will need to be pursued as well.

The common-law doctrine of necessity and the inherent jurisdiction of the court

Under common law, the doctrine of ‘necessity’ provides a defence to conduct that would otherwise be tortuous, and can be used as a defence when making decisions in the best interests of the vulnerable person. This is extended further by the inherent power of the Family Division of the High Court to grant declaratory relief, where a person is incapable of making their own medical and welfare decision, where the choice is determined as being in their best interests (See Re F (Adult Patient) sub nom Re F (Adult: Courts Jurisdiction) (2000) 3 WLR 1740). Once the Mental Capacity Act 2005 is in force, the Court of Protection will be able to make welfare and medical declarations on behalf of those without capacity instead of applying to the High Court.

Entry and inspection of premises by approved social worker

Under Section 115 of the Mental Health Act 1983, an approved social worker can enter and inspect any premises occupied by a mentally disordered person, if there is cause to believe that the person is not receiving proper care. But this doesn’t allow forced entry.

Place of safety orders under the Mental Health Act 1983

Section 135 of the Mental Health Act 1983 enables a mentally disordered person to be removed from specific premises or from a public place to a place of safety. This can be a hospital, care home or even a police cell. The Approved Social Worker (ASW) makes an application to the magistrate for a warrant to be issued, authorising a police constable to gain entry, which can be forced, and remove the person to a place of safety for up to 72 hours. The person must reasonably be believed by the ASW to be suffering from a mental disorder and who has been or is being neglected or ill-treated. This section can also be used to protect the mentally incapacitated victim of violence. The ASW may further seek to section the person to compulsorily detain the person in hospital under the other sections of the Act. Such orders will only be made in the event the person is unwilling to receive help and is mentally disordered.

Section 136 of the 1983 Act enables a police constable to remove a person to a place of safety, if he finds that person in a public place, and he or she appears to be suffering from a mental disorder, and it is in the interest of that person or for the protection of others for removal. Detention can be up to 72 hours, during which time an assessment would take place.

The Act also enables, under section 7, for a guardianship order to be made. This requires, among other things, that the person reside at a particular place and that he attends at a place or a time specified for the purpose of medical treatment. To obtain guardianship, the individual must be suffering from a mental disorder, of a nature or degree that warrants the order and it is necessary for the welfare of the person or the protection of others, so it could be used for the protection of the abused carer. The guardianship lasts for six months and there is the right of appeal to the Mental Health Review Tribunal.

Criminal proceedings for neglect

Section 127 of the 1983 Act makes it a criminal offence to ill treat or willfully neglect a patient receiving treatment, subject to a guardianship order or subject to after-care under supervision for a mental disorder in hospital or mental-nursing care home by staff. The Mental Capacity Act 2005 Act, in force in Spring 2007, and its associated Code of Practice will help in this respect too, as criminal penalties will apply to willful abuse and neglect.

Problems of legal remedies
The cost of legal remedies

Using the civil-court system can incur expense and this deters many people from using this method of intervention. Those on a low income, with little or no savings, may qualify for legal support through legal aid but one still needs to establish that there is a viable cause of action. An application for Legal Aid and subsequent action can be made on behalf of someone who lacks capacity. Many firms of solicitors have given up undertaking legal-aid work due to the low levels of pay. Others may act on a contingency-fee basis for personal-injury cases.

Court action can take quite a long time to get to a full hearing

One would need to seriously consider the effect of this on the vulnerable adult and their life expectancy.

Evidence must be established

It is imperative that sufficient evidence is obtained as soon as possible after the event of abuse. This may take the form of medical reports, photographic evidence, written records and statements from parties involved. Where a criminal act of abuse has occurred, consider involving the police.

Although a victim without capacity may pose evidential problems, it doesn’t preclude them from having the protection of the law. An expert witness may be able to give evidence of physical or sexual abuse; eyewitness accounts may be able to provide corroborative evidence; and the vulnerable person may also give evidence.

In determining whether the person is competent to give evidence, the judge has to ascertain if he or she understands what telling the truth is, as well as being able to recall the facts. This may involve calling an expert witness, such as a psychologist. If the person suffers from dementia, but has lucid periods, it may be worthwhile obtaining written evidence in the form of an affidavit during a period of capacity, supported by medical evidence as to capacity to make the statement.

What does the client want the outcome to be?

It’s easy to assume, but it’s not always the case, that the client wants intervention of some sort. Obviously, they will want the abuse to stop, but there may be repercussions. Counselling services may be needed. The client may also decide to deal with matters within the family by amending wills and gifts to rectify the position.

Is the perpetrator worth pursuing?

If compensation is the redress desired, does the perpetrator have any financial means to pay any court order made? In civil cases, mentally-disordered persons are liable to the same extent as sane persons, provided they have the state of mind required for liability in the particular tort (Morris v Marsden (1952) 1 All ER). Even if the perpetrator is unaware that he may be committing a wrongful act, he may still be liable. However, if his acts are purely involuntary and automatic it cannot be litigated.

In criminal cases, the decision to prosecute a mentally-disordered person depends if it is in the public interest. In such cases, the court has wider sentencing powers.

Changing the culture

Abuse can be reduced by changing the culture: by raising awareness of the way in which vulnerable adults should be treated in the community and the standards of care to which they should be entitled.

Media coverage makes big inroads, such as the recent TV play, ‘DAD’ shown as part of Comic Relief. Changes in the regulation of cold selling and door-to-door sales are another way forward. Awareness of fraud by ‘prize offer’ schemes also helps to limit fraud. Contact Local Trading Standards Offices to limit these activities and to put in place ‘STOP Orders’.

Advisers may be in a position generally to prevent abuse by offering awareness training to social workers, paid carers and care homes or get involved with the development of local vulnerable adults codes of practice. Report poor practice and abuse and encourage the family and /or the client to report adverse treatment.

Information for an attorney acting under an enduring power

What the enduring power allows you to do

An enduring power of attorney made by a person (the donor) gives you power to deal with his/her financial affairs. You must only do such things as the power allows. It does not give you power to make decisions such as where the donor should live or medical treatment he/she should have.

If you have been appointed with another person, it may be that you have to deal with all matters jointly (a joint appointment) or it could be that you can act jointly or independently (joint and several appointment).

Can you use it immediately?

If there is a condition on the power that prevents you from using the power until the donor is becoming or has become mentally incapable of managing his/her financial affairs then you will need to register the power with the Court of Protection before being able to use it. If there are no conditions or restrictions, you may use the power immediately, but you should only do what the donor wants you to do and always act in his/her best interest.

What is in the donor’s best interests?

Decisions as to what is or is not in a person’s best interest is not always easy and you must consider all the relevant circumstances and, in particular, consider:

The likelihood of the donor recovering in the foreseeable future and being able to make the decision;
Involving the donor in the decisions so far as practical;
The donor’s past and present wishes and feelings;
The donor’s beliefs and values that would be likely to influence his/her decision if he/she had capacity;
Other factors that the donor would be likely to consider if he/she were able to do so;
If practicable and appropriate, consult with carers, relatives and/or friends or others who have an interest in his/her welfare.

The limits of the power

The donor may have included restrictions or conditions in the power, which limit you from making gifts. If this is not the case, you may make gifts if:

It is seasonal, such as a Christmas present;
It is for a birth or a birthday present;
It is a wedding present or an anniversary present, provided it is for a friend or relative (including yourself).

Gifts can also be made to a charity if the donor has made gifts to the charity in the past or, if not, in the circumstances, might be expected to make gifts to the charity.

In all cases, however, the size of the gift must be reasonable in the circumstances and in relation to the size of the total value of the donor’s assets. You should be cautious as the donor may need the asset in the future.

If you have any doubt or wish to make gifts not covered by the above, and the power has been registered, you should seek advice from the EPA team at the Public Guardianship Office, or from your solicitors or other professional advisors.

Operating a bank account

Banks and building societies have different ways of dealing with attorney accounts. Some will allow you to continue to operate the donor’s account while others will wish a new account to be opened. In the case of a spouse then a joint account may remain as such and operated as normal. If you operate the donor’s account you should sign your usual signature and then add underneath your signature ‘as attorney’. If you have to open a new account it should be opened in your name ‘as attorney for’ followed by the name of the donor. You will then only have to sign your usual signature to deal with the account.

You should not open an account in your name without identifying that it is an attorney account as this may cause problems with your own tax affairs.

Keeping accounts

The power may include a condition that you prepare and produce accounts every year to be checked by someone, such as a solicitor or an accountant. Even if the power does not say this, you have a duty to keep accounts. It is sensible to keep bank statements and retain all receipts in one place. This is because the Court of Protection can ask you to account for your dealings with the donor’s money. This can occur if the power is registered or should be registered.

Registration

If you believe that the donor is or is becoming mentally incapable of managing their financial affairs you must register the power with the Court of Protection.

While the power is being registered you can only use the money to maintain the donor or to prevent a loss to their finances. If you fail to register the power at this time then you may be personally liable for any loss to the donor’s finances.

You can find details of how to register the power by contacting the Public Guardianship Office or contacting the solicitor who drafted the power.

EPA Helpline: 020 7664 7327 or 0845 330 2963 (UK only). Customer Service Unit (for forms and booklets): 020 7664 7300

EPA Team, Public Guardianship Office, Archway Tower, 2 Junction Rd, London N19 5SZ

Books, journals and guidance

The Guide to the Professional Conduct of Solicitors, 8th edition
Assessment of Mental Capacity: A Guide for Doctors and Lawyers, 2nd edition (BMJ Books www.bmjbooks.com)
The Elderly Client Handbook, 3rd edition (The Law Society)
Coldrick on Care Home Fees 3rd edition (www.ark-group.com)
Court of Protection Practice Heywood and Massey
A Practitioner’s Guide to the Court of Protection by Martin Terrell, 2nd edition (LexisNexisTolley)
The Probate Practitioner’s Handbook (The Law Society)
The Law Society Guidelines on Enduring Powers of Attorney and Making Gifts
No Secrets, Local Authority Circular LAC (2000) 7

Websites

www.solicitorsfortheelderly.com
www.dca.gov.uk
www.doh.gov.uk
www.lawsociety.org.uk

This article has been prepared by Anne Edis, president of Solicitors for the Elderly, for the benefit of members, the legal profession, and those interested in safeguarding the interests of vulnerable adults.