Balancing risk with control

What are the main challenges for advisers with vulnerable clients?

We have been very focused on the issue of capacity, since the implementation of the Mental Capacity Act 2005, and ensuring that our client has the requisite mental capacity for the specific transaction being contemplated. In doing so, we may overlook the additional risk of undue influence and the need to be confident that, as well as having the requisite capacity, our client is actually making that decision as a result of free and informed thought.

When somebody is looking to appoint an attorney under a lasting power of attorney, for example, they tend to look to their family members to fulfil that role. It is a sad fact that, statistically, where financial abuse occurs, the instigator is most likely to be the adult son or daughter of the individual.

What do you see as the key progress made since the Mental Capacity Act came into force?

One aspect that particularly impresses me is the principle of trying to support a client to make a decision for themselves. I’ve seen that working well in care homes, and in supported living arrangements. Obviously, it takes more time, effort and creativity on the part of staff, but the outcome for the individual service users can be a much improved quality of life.

In the recent case of Re GM, the main issue before the court was the retrospective approval of gifts made by and expenses received by two court deputies. However, running behind the scenes was an argument, which took up a lot of court time, over GM not having a choice in relation to her own clothing.

The care home management and staff were clearly aware of the importance of supporting GM to make those decisions herself, but this was an aspect of GM’s life that the deputies took control over. It was useful that it was pointed out during the proceedings that the deputies had failed in their duties in that respect.

The seemingly little things that often don’t form the substance of any court proceedings can really make a difference to a person’s day-to-day experience when they are in the care of others.

What could be improved?

The banking guidelines recently issued by the British Banker’s Association [and others] are an incredibly welcome step in educating and supporting bank staff in dealing with financial transactions for a customer with capacity issues.

There is a real challenge, though, to provide services for customers with fluctuating capacity, who may have good days and bad days. On a good day, they are entitled to make the decision they have the capacity to make. Capacity is, after all, time-specific and decision-specific. So the existence of a deputyship order or a registered lasting power of attorney should not disenfranchise a person or prevent an individual from making any decisions that they can make themselves.

Do you think the online LPA facility is a positive step?

On the whole I believe it is a good step, because it will raise the profile and usefulness of this important document, and increase access to powers of attorney for those unable to afford to instruct a solicitor to act on their behalf. I think it will be interesting to see how the risk issues are managed. If you meet an adviser to explore the reasons behind making a power of attorney and the choice of attorney, there are safeguards that are not available to a person sitting in front of their home computer to complete the forms.

I think it will be interesting to see how advice for both donors and attorneys, produced by the Office of the Public Guardian, is developed and brought more into the public domain.

Often attorneys get overlooked or sidelined in the process of making a lasting power of attorney. Where solicitors are involved, their role is to act for the donor generally. Who then is acting for the attorney? They are generally unlikely to seek their own independent legal advice, and yet their responsibilities and duties are significant and can be onerous. Their role is similar to a trustee.

They need to be aware and reminded that they cannot do whatever they like with the donor’s property and indeed, that they cannot just do whatever the donor would do, had they retained capacity.

Sheree Green is senior associate at Anthony Collins Solicitors.

This piece first appeared in Private Client Adviser on 18 June 2013. A copy of this article can also be found on their website – please click here to view.