Increased risk of financial abuse during lockdown
Lockdown has been stressful for most of us, even more so for elderly and vulnerable people – who are at increased risk of financial abuse at a time when they are even more reliant on the support of others. Heledd Wyn, Director and Head of Long Term & Elderly care explains how you can help.
With lockdown almost behind us and ‘the new normal’ beckoning, what lessons have we learned? We will all have had personal journeys, from bread baking to our first experience of ‘properly’ getting out of the house. I, for one, have walked a great deal around Bristol, and yes, I have baked bread.
However, what about those who have not been able to ‘enjoy’ lockdown because they are vulnerable and perhaps confined to their home or a care home? At the start of lockdown, we saw a great surge in Good Samaritans coming forward to support others. An early example was a Facebook post by Becky Wass from Cornwall, who wanted to help vulnerable and elderly neighbours by taking on some basic tasks that they may have struggled with if self-isolating or shielding. This took the form of a postcard that could be printed with the details of a friendly neighbour willing to help.
It was a lovely idea, but it got me thinking that this might also prevent unscrupulous types using this as an opportunity to take advantage of these vulnerable individuals through various scams. A quick Google search of ‘financial abuse’ and ‘COVID-19’ throws up several websites that give advice on how to spot potential financial abuse, and these have all been updated to take into account the particular additional difficulties faced in recent months. I think this is quite telling.
Financial abuse can take a number of forms, from unintentionally mishandling finances to fraud. One group of people who are particularly at risk of financial abuse are the elderly. Almost anyone can commit financial abuse, including close family members such as spouses, children or grandchildren, carers, and those in a position of trust and responsibility. The abuser may be formally appointed as an attorney or deputy (by a court order), or sometime the assistance is on a more informal basis, such as doing odd jobs for the vulnerable person.
Whenever there are personal (financial or social) pressures combined with other factors such as old age, disability or ill health, this may make someone more vulnerable to potential financial abuse by someone that they trust. With those people self-isolating at home becoming even more vulnerable to scams, especially if they have little or no contact with other people, what, if anything, can solicitors do to protect their elderly clients from financial abuse?
While every situation and individual client is, of course, unique, there are some common warning signs to look out for if you suspect someone is a victim of financial abuse. Here are some of the common signs.
- Has your client mentioned that someone is helping them with their finances because they have access to their bank card? It can be very easy to take a bit too much money from a cashpoint. This might have been a ‘knee-jerk’ reaction to self-isolation, if sorting out a formal power of attorney seems too time-consuming for the client.
- Has your client started behaving differently? Are they more anxious or have they lost confidence? Is this change related to the lockdown, or could there be more to it than that?
- Signatures can become frailer and potentially easier to forge when we get older or more vulnerable. Forging a signature could be used to make a claim for certain benefits, falsify a cheque, or even a will and other important paperwork (including a power of attorney application itself). How have documents been signed, if your client is self-isolating?
- Have ‘long-lost’ family or new friends suddenly come (back) on the scene? Are they becoming more invested in the relationship with your client? Are these people now going to be included in your client’s will or perhaps by way of a deed of gift? How has this relationship been resurrected and since developed? Reconnecting because of lockdown is a blessing for many, but for others it might be seen as an opportunity to take advantage.
- Is it possible to check that documents have been signed by your client without undue influence or coercion from a third party? Has your client asked you to alter their will, or told you that they now want to help someone who has been very kind to them during this time?
Inevitably, there has been a lack of social interaction during the pandemic, but an increase in video / phone calls means that a lot of conversations have been happening behind closed doors. Are you sure that the reasons for the change of heart are voluntary, or are they perhaps out of a sense of guilt or loyalty because of kindness during lockdown? This could lead to a challenge to the will and a claim of undue influence by disappointed beneficiaries.
Powers of attorney
Setting up a lasting power of attorney (LPA) is a recommended course of action for assisting those who may no longer be able to manage their own affairs. While the majority of attorneys do act properly and in accordance with the terms of the Mental Capacity Act 2005 and its Code of Practice, unfortunately, there is scope for an attorney to be the proponent of financial abuse.
This may be unintentional. We are all familiar with the Gladys Meek case  EWCOP 1, in which her nieces felt they had, in the words of the judge, a “licence to loot” her funds for their own needs. In Re SF  EWCOP 68, a son charged his mother £400 every time he visited her. In the words of Senior Judge Lush, “One would be hard pressed to find a more callous and calculating attorney, who has so flagrantly abused his position of trust”.
During 2018-19, the Office of the Public Guardian (OPG) investigated 2,883 allegations of abuse, compared to 1,871 in the previous year. However, as “at 31 March 2019, we [OPG] had 3,906,536 registered powers of attorney and deputyship orders … the number of investigations … carried out was only 0.07% of the total”.
This might mean that the number of financial cases is low, or that there are many more going under the radar.
Contemplating the fact that an appointed financial attorney could be abusing their position can cause real distress to the donor, as well as those close to them. This can be particularly hard given that it often a close relative or a trusted friend and someone that the donor relies on for support. The donor may feel guilt and worry that a support network will be taken away. This makes having a conversation or even approaching the subject seem impossible for many. This is even more important now we have seen how quickly vulnerable people can become isolated through lockdown, and how much they may rely on others.
As a first step, it can be useful to help organise your own thoughts by writing down your concerns and what behaviours or events have led you to believe something isn’t right with a client. Once you have considered whether these concerns amount to potential financial abuse, then you should consider contacting your local adult social care safeguarding team, OPG and the police. You may want to consider making an application to the Court of Protection for the revocation of any power of attorney, or a review of a deputy’s actions.
This should assist with preventing further financial abuse, but what happens to any money that has been misappropriated? If the money has been spent, it can be very difficult to recover, and this can mean that the abused person is left in a very difficult financial position. If there is a deputyship order in place, there will be a bond that can be called in. Historically, however, there has not been any such product available for attorneys.
For nearly 40 years, surety bonds have played an important part in completing the circle of care for vulnerable people under deputyships, with millions of pounds being claimed. A new bond has been launched to protect donors under an LPA.
Financial abuse under LPAs has been well documented for many years and, up until now, there has been no bond to replace financial assets. Products such as this may highlight the risk of financial abuse and will hopefully make a significant difference to the way in which potential financial abuse is spotted and treated.
Often, if something does not seem right, there is no harm in asking questions. There may be nothing untoward happening, but it is good thing to check it out, and there are plenty of organisations that are there to support you – from OPG to the local authority. Awareness of financial abuse and how it can be reported may make all the difference to the victim.
Specialist legal advice
If you have concerns about someone you believe is at risk of financial abuse, or you are concerned for your own safety, our team of specialist solicitors are on hand to help. Please contact our friendly team by calling 0117 906 9400 or email email@example.com. All enquiries will be treated as confidential.
This article first appeared in the August 2020 edition of PS, the magazine of the Law Society’s Private Client Section, the membership group to help practitioners working in wills and probate, estate and tax planning, trusts and mental capacity to be good at what they do, SRA compliant and progress their careers.