Feature

posted 24 Jun 2005 in Volume 10 Issue 4

Tackling abuse: Recognising, preventing and dealing with the abuse of older and vulnerable people

Solicitors for the Elderly (SFE) recently published a ‘Strategy for recognising, preventing and dealing with the abuse of older and vulnerable people’ to help SFE members safeguard clients’ interests. Now its author, and president of SFE, Anne Edis, allows ECA to publish the guidance in a two-part article starting in this issue.

“The voice of older people is rarely heard by those who have a responsibility for commissioning, regulating and inspecting services,” Gary Fitzgerald, chief executive of Action on Elder Abuse, in evidence to the Parliamentary Committee on Elder Abuse.

What do we mean by abuse?

The term elder abuse originated from the US, but has no legal status, no clear definition and would not always be recognised.

Abuse takes many forms: physical, sexual, emotional, psychological (including neglect), abandonment or isolation, and financial. Any or all of these forms of abuse may be perpetrated as the result of deliberate intent, negligence or ignorance.

Evidence submitted to the Parliamentary Health Select Committee on Elder Abuse in 2004, estimated that about five per cent of the elderly population in the community suffer verbal abuse and up to two per cent were the victims of physical of financial abuse. See www.parliament.gov.uk

Action on Elder Abuse defines abuse as: “A single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.”

No Secrets Guidance on Developing and Implementing Multi-Agency Policies and Procedures to Protect Vulnerable Adults from Abuse, the government’s Adult Protection Policy for Local Authorities in England and In Safe Hands in Wales, applies to all adults and not just elderly people. It defines abuse in terms of vulnerability as follows: “A vulnerable person is one 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 of him or herself, or unable to protect him or herself against significant harm.”

The definition has limitations because it only includes those who are or may be in need of community-care services. Violation of individual human and civil rights is a part of elder abuse and some further protection will commence in 2006 with the setting up of the Commission on Equality and Human Rights, which defines the term as follows: “... Abuse may consist of a single or repeated act. It may be physical, verbal or psychological. It may be an act or omission of an act or 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 result in significant harm and exploitation of the person subjected to it.”

The lack of a clear definition can make it harder for the individual to identify whether another person is being abused.

The risk factors for the abused

Abuse occurs for many reasons and the causes are not fully understood. The following risk factors have been identified as being associated with physical and psychological abuse:

Those abused usually have fewer social contacts than those who were not abused;
A history of poor-quality long-term relationships between the abused and the abuser;
A pattern of family violence exists. The person who abuses may have been abused as a child, not necessarily by the person being abused;
The person who abuses is dependent upon the person abused for accommodation, financial and emotional support;
The person who abuses has a history of mental-health problems, personality disorder, and drug or alcohol problems.

Identifying abuse

The prevalence of elder abuse is unknown. According to the Health Select Committee, it is estimated that in the region of 500,000 people per annum are subject to acts of admitted abuse. This is likely to be the tip of the iceberg, however, because the abuse may be hidden, ignored and generally swept under the carpet. These figures cover all types of abuse.

Abuse occurs in many settings and can be difficult to identify, particularly as there is a fine line between poor practice and abuse. Identifying these boundaries can be difficult. Advisers need to be alert to the potential and take steps to ensure prevention and, where it has happened or is happening, take steps to deal with the issues.

The difficulties in identifying and dealing with abuse are complex but include:

Fear of further abuse and the ramifications, such as dependence on the abuser and jeopardy of care;
Fear they will not be believed;
The abused person does not recognise the action as abuse;
Trauma suffered as a result of the abuse;
Embarrassment to admit abuse;
Secrecy of the perpetrator;
Cultural and language barriers;
Lack of knowledge and training by professionals involved in care, and so may fail to identify, report and act;
Lack of reporting and recording incidents of abuse by the abused and those caring for them.

The Public Guardianship Office (PGO) commissioned research by the Salomons Institute, on the role of the PGO in safeguarding vulnerable adults against financial abuse, which was published in 2003. It is useful to read to assist in identifying financial abuse www.guardianship.gov.uk/formsdocuments/publications.htm. The main types of abuse can be identified as follows.

Physical abuse

Typical examples of physical abuse would include hitting or slapping, burning, pushing, restraining or giving too much medication or the wrong medication.

Indicators of physical abuse

The individual may present one or more of the following:

Cuts, lacerations, puncture wounds, open wounds, bruises, welts, discolouration, black eyes, burns, fractures, broken bones and
skull fractures;
Untreated injuries in various stages of healing or not properly treated;
Poor skin condition or poor skin hygiene;
Dehydration and/or malnourished without illness-related cause;
Loss of weight;
Soiled clothing or bed;
Broken eyeglasses/frames, physical signs of being subjected to punishment or signs of being restrained;
Inappropriate use of medication, overdosing or under dosing;
An older person telling you that they have been hit, slapped, kicked or mistreated.

Psychological abuse

The client may be subjected to behaviour that is frightening, blaming, ignoring or humiliating.

Indicators of psychological abuse

Helplessness;
Hesitation to speak openly;
Implausible stories;
Confusion or disorientation;
Anger without apparent cause;
Sudden changes in behaviour;
Emotionally upset or agitated;
Unusual behaviour (sucking, biting, or rocking);
Unexplained fear;
Denial of a situation;
Extremely withdrawn and non-communicative or responsive;
An older person telling you they are being verbally or emotionally abused.

Financial

Evidence will be found to demonstrate the illegal or unauthorised use of a person’s property, money, pensions or other valuables.

Indicators of financial abuse

Signatures on cheques etc., that do not resemble the old person’s signature or signed when the older person cannot write;
Any sudden changes in bank accounts, including unexplained withdrawals of large sums of money by a person accompanying the older person;
The sudden inclusion of additional names on an older person’s bank accounts. Often these individuals will be unrelated to the elderly person;
Abrupt changes to or creation of wills;
The sudden appearance of previously uninvolved relatives claiming their rights to an old person’s affairs and possessions;
The unexplained sudden transfers of assets to a family member or someone outside the family;
Numerous unpaid bills, overdue rent, care-home bills, public-utilities bills etc., when there is someone who is supposed to be paying his bills for them;
Unusual concern by someone that an excessive amount of money is being expended on the care of the older person;
Lack of amenities such as TV, personal grooming items and appropriate clothing items that the old person should be able to afford;
The unexplained disappearance of funds or valuables such as art, silverware, jewellery;
Deliberate isolation of an older person from their friends and family, resulting in the carer alone having total control.

Sexual

For example, forcing a person to take part in any sexual activity without his or her consent, irrespective of the relationship.

Indicators of sexual abuse

Bruises around the breasts/genital area;
Unexplained venereal disease or genital infections;
Unexplained vaginal or anal bleeding;
Torn, stained or bloody underclothing;
An old person telling you that they have been sexually assaulted or raped.

Neglect

This may be demonstrated by, for example, where a person is deprived of food or clothing, comforts or essential medication.

Indicators of neglect

Dirt, faecal or urine smell, or other health and safety hazards in the old person’s living environment whether at home or in residential
or nursing care;
Rashes, sores, lice on him/her;
Older person is inadequately clothed;
Older person is malnourished or dehydrated;
The older person has untreated medical conditions;
Poor personal hygiene;
The withholding of medication or over medication;
Lack of assistance with eating and drinking;
Unsanitary and unclean conditions.

Indicators of abuse by the care giver

The older person may not be allowed to speak for themselves, or see others, without the presence of the care giver and (suspected abuser) being present;
Attitudes of indifference or anger towards the older person, or the obvious absence of assistance;
Family member or carer blames the older person (for example, accusation that the incontinence is a deliberate act);
Aggressive behaviour (threats, insults, harassment) by the care giver towards the older person;
Previous history of abuse of others;
Inappropriate display of affection by the care giver;
Flirtations, coyness, etc. These might be possible indicators of inappropriate sexual relationships;
Social isolation from the family, or isolation or restriction on the activity of the older person by the caregiver;
Conflicting accounts of incidents by family, supporters or the older person;
Inappropriate or unwarranted defensiveness by the care giver;
Indications of unusual confinement (closed off in the room; tied to furniture; changing routine activity);
Obvious absence of assistance or attendance;
Previous history of abusive behaviour.

Abuse and discrimination

Abuse can be linked to age and other forms of discrimination so do not overlook the protection offered to the client by the provisions of the Disability Discrimination Act 1995.

Abuse and human rights

Under the Human Rights Act 1998, the individual has a right to privacy, a family life, and a fair trial and hearing, but most importantly the right to life and not to be treated in an inhumane and degrading manner. The Act applies in the main to public bodies such as local authorities and the NHS.

The Health Select Committee on Elder Abuse recommended that the new Commission on Equality and Human Rights should have both promotional and enforcement powers in respect of human rights and when the Commission comes into force in 2006, practitioners should check to see if there is any available assistance within the authority of Commission that may help in their practice.

A general overview of the perpetrator of abuse

The abuser can be an informal carer such as a relative, friend, neighbour or a person acting in a paid capacity, such as professionals involved in care in the person’s own home, in a care home or day centre, or by the person’s professional adviser. Abuse may have occurred due to neglect, an omission to act or as a deliberate and premeditated act.

Sometimes it may be the result of desperation due to lack of support from other relatives, the NHS and/or Social Services, for example, where the caring role places undue pressure upon the carer who takes out their frustration on the cared for person. The deliberate abuser is one who sets out deliberately to abuse the vulnerable adult and may have access to information that opens up opportunities for abuse, such as bank accounts, correspondence and other personal information.

Abusers can include attorneys and receivers. The Court of Protection identifies 10-15 per cent of registered enduring powers of attorney (EPA) are used as vehicles of abuse. Master Lush on the BBC programme ‘Real Lives’ in 2004 suggested that in the region of 100,000 unregistered EPAs may be used to perpetrate financial abuse. The difficulty in identifying this kind of abuse arises because there is no direct supervision or accountability of attorneys, and there is no record of how many unregistered EPAs exist. The Court of Protection identifies some abuse by receivers and deals appropriately. Once the Mental Capacity Act 2005 is in force (Spring 2007), EPAs will no longer be able to be granted and will be replaced by a lasting power of attorney, which will need to be registered with the court prior to use and contain a certificate of capacity and no undue influence or fraud used to grant the power. EPAs made before the introduction of the Act will still be valid.

Professional-conduct issues for legal advisers

From a professional standpoint, it is important to recognise the following issues in relation to abuse:

Abuse is often ‘hidden’;
Abuse may start off by being unintentional – for instance, financial abuse by a pressured attorney;
There may be a potential for abuse;
Clients do not like or indeed may be unwilling to admit abuse by others in relation to financial abuse in particular – being sold a driveway, double glazing, roof repairs or an unsuitable item are typical examples;
People do not like airing the family dirty linen in public and will rectify this by internal management – for example, wills /gifts.

Where the vulnerable person is your client, it is important to handle the matter with care and sensitivity. Although clear civil or criminal remedies may be available, the client may not wish to pursue a certain course of action. If appropriate look for additional help and support from the NHS and Social Services department. All local authorities have vulnerable adults’ procedures in place to deal with abuse in accordance with the No Secrets and In Safe Hands guidance. All local authorities should have appointed adult protection officers.

Advisers are in a position, particularly in relation to financial abuse, to build in protection for the client when advising and drafting documents. The advice given must to be tailor-made to each client’s circumstances and needs.

The solicitor’s professional role

Practitioners must remember that they have to have regard to the Professional Conduct Rules. In particular, they must:

Identify who the client is and so who they owe their duty of care to, and act in their best interest (Rule 1.1 Guidance to the Professional Conduct of Solicitors 8th edition). That duty of care increases in cases where a professional is the attorney or receiver. The client will usually be the donor in the case of an EPA and the patient in Court of Protection cases (Rule 24.03), unless they are already separately represented. If the attorney or the receiver is abusing the client or you suspect abuse, you should notify the PGO, which may refer the matter to their investigation team. Your duty of care is not to the attorney or receiver. At all times, the attorney/receiver owes a duty of care to act in the best interests of the donor/patient;
Consider, ascertain and record whether the client has the necessary capacity to give instructions and undertake the specific transaction. This can sometimes be dealt with by identifying the reverse side of the coin – Client X is not incapable of making this decision;
Making a will – Banks v Goodfellow [1870] LR 5 QB 549;
Revoking a will – Re Sabatini 1970 114 SJ 35;
Making an Enduring Power of Attorney – Re K,Re F [1988] 1 All ER 358;
Making a gift – Re: Beaney (1978) 2 All ER 595;
Contracting a marriage – In the Estate of Park deceased [1954] P 89 CA : Sheffield City Council v E and Another, Times Law Reports,
Jan 5 2005
Conducting legal proceedings – Masterman Lister v Jewell [2003] 3 All ER 162;
Consenting to medical treatment – Re C (adult refusal of treatment) [1994] 1 All ER 819;
Managing Property and Affairs – White v Fell [1987] Unreported but also see Masterman Lister v Jewell;
Consider whether the client is making the decision freely and of their own volition and that they are not being subjected to pressure or undue influence. Undue influence is an increasingly significant issue and is being identified more and more by the Courts. See Thomas Henry Vale v (1) Terence Armstrong and (2) Jason Armstrong 2004. This is an issue to be considered when advising on gifts, declaration of trusts, wills, and EPAs in particular.

One way in which this can be done is simply by carrying out a risk/ benefit analysis at the outset so that the client understands the risks of what they are doing and the benefits and the consequences of the steps they are taking. This is a very simple analysis and does not require the adviser to take very sophisticated steps, but it can prevent problems.

Preventing financial abuse by an attorney

All advisers should be careful and discriminating when recommending an EPA be created. Regard should be had to the Law Society’s Guidelines to Solicitors on the making of EPAs (1999) and the Gifts of Property: Implications for Future Liability to Pay for Long Term Care (2000).

Advisers are reminded that they should always remember that the donor is their client whether capable or incapable to make the decision (unless the attorney is seeking separate representation).

EPA or receiver?

Advisers are reminded that in some cases it may be better to appoint a receiver because of the supervision given by the Court of Protection. This may be particularly relevant where the client comes from a family with a history of dysfunction or exploitation.

Check capacity and undue influence

Many registered EPAs are registered within three months of their creation, which suggests that capacity may already be in question. Advisers need to be careful about preparing EPAs, particularly if they receive instructions from a third party or where they are acting for a donor who has previously been unknown to them. Third-party instructions must be confirmed by the donor and ideally see the donor for the execution of the power. Always see the client alone for at least part of the interview to identify capacity and, more importantly, that an EPA is what the client wants and is being made free from the influence of others. If the client is unknown to you, or you have not seen them for a long while, take some time talking about wider issues to be sure the client has the necessary capacity and they are not acting under the undue influence of another. If in doubt, it may be better to apply for receivership or involve medical practitioners to assist with ascertaining capacity.

Insert restrictions and conditions in the power

Consider, when drafting the power, building in protection by way of consents, approvals and audit so that there is some accountability and some supervision. Letters of wishes setting out a framework for the attorney may also help to prevent abuse.

Audit accounts

Provide a condition in the power to have the accounts audited. If accounts are not rendered in accordance with the condition, then an application can be made for cancellation of the power on the grounds of the attorney’s unsuitability. Auditing accounts is a service that your firm could undertake.

Check suitability of the attorney

It may be appropriate for the probity of the attorney to be investigated with enquiries made about whether the attorney has the requisite skills to manage the affairs. The appointment of a sole attorney provides more scope for abuse than a joint or several appointments, yet joint and several appointments also provide a greater opportunity for exploitation than joint appointments. However, both carry risks. Where solicitors or their staff are attorneys build in supervision and audit.

Provide information on the limitation of the power

The donor and the attorney should be given information, ideally in writing, about the limits of the power, in particular, that they are not authorised to make medical and welfare decisions under the power and have limited power to make gifts and financial provision for others.

The Public Guardianship Office publishes a very helpful booklet on enduring powers of attorney and the Department of Constitutional Affairs produces a series of leaflets on Making Decisions for People who have Difficulty Making Decisions for Themselves. Solicitors for the Elderly have a fact sheet that explains the limitation of EPAs and is available on the SFE website (www.solicitorsfortheelderly.com).

Record and track use

The use of unregistered powers should be discouraged and the circumstances in which an EPA is to be used should be set out and placed with the adviser so that they know when it is to be appropriately used. Alternatively, these instructions can be placed within the instrument itself.

Only provide certified copies when the power is to be used and keep a record and track of where they are to prevent potential misuse.

Advise to register the power on the onset of mental incapacity

Some advisers fail to inform the attorney that they are under a duty to register the EPA when the donor is becoming or has become mentally incapable of managing his/her finances and affairs. The registration puts the mentally incapacitated donor under the jurisdiction and protection of the Court of Protection. The attorney acting under an unregistered EPA when it should be registered is in breach of his duty to the donor and may be personally liable for his acts.

Preventing abuse by the professional attorney

Develop a firm-wide policy of monitoring and auditing files on a regular basis, by someone who is not involved with the case, where a partner or member of staff is the attorney or receiver and is handling the monies belonging to the client. Use your accounts department to draw up cheques and present audited accounts.

Discourage, where possible, a single member of staff or an unqualified member of staff from being a sole attorney – use joint or joint and several appointments instead.

Take a robust view and make clear that in the event of anyone being found to have abused their power and taken advantage of their position as an attorney that the matter will be referred to the police and the Law Society and that disciplinary proceedings will result.

This article was 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. She may be contacted at a edisanne@aol.com