The main difference between a Lasting Power of Attorney and a Deputyship centres around a person’s capacity. If a person does not have capacity, they will be unable to make a Lasting Power of Attorney, however, an application might need to be made to the Court of Protection for a deputy to be appointed to manage their financial affairs or their health and welfare.
A person will be judged to have capacity if they can communicate: the nature of a lasting power of attorney, who they would like to act as their attorney and in the case of a Property and Finance Lasting Power of Attorney, how the appointment of an attorney will enable another person to manage their finances.
If there are any doubts about a person’s capacity, an assessment will need to be completed by a medical professional or qualified social worker in order to evidence capacity.
Lasting Power of Attorney
A lasting power of attorney (LPA) allows a person, with capacity, to appoint family members, close friends and/or professionals to act as their attorneys. Replacement attorneys can also be appointed just in case an original attorney becomes unable to act for whatever reason.
There are two different types of Lasting Powers of Attorney: Property and Affairs LPA and Health and Welfare LPA.
A Property and Affairs LPA allows attorneys to manage a person’s financial affairs. This could include the management of any bills, signing cheques and could even include the sale of a person’s property to fund their care fees.
A Health and Welfare LPA allows attorneys to make health-related decisions such as where a person might live, what medication they take and could include the authority to give or refuse consent to life-sustaining treatment on behalf of the person.
If a person lacks capacity, you can apply to become someone’s deputy through the Court of Protection. This is known as a deputyship application. A person might lack capacity when they have dementia, severe learning difficulties or have suffered a brain injury. A capacity assessment will need to be completed to confirm that a person does not have capacity before you can apply to be a deputy.
There are two types of deputyship orders: a property and financial affairs deputyship and a personal welfare deputyship. These mirror the different types of LPA.
Property and Financial Affairs Deputyship
Once a deputyship order has been granted by the Court of Protection, the deputy would have the authority to make financial decisions on the person’s behalf.
Personal Welfare Deputyship
If a deputyship order has been granted by the Court of Protection, the deputy would normally have authority to make specific decisions regarding a person’s day-to-day medical treatment (which could include life-sustaining treatment), where a person lives and any matters relating to their personal care. It is important to note that these orders are increasingly rare and supporting evidence would need to be strong in order for the Court to grant this order.
If you would like more advice and guidance regarding Lasting Powers of Attorney or putting a Duputyship in place…Talk to Tollers on 01604 258558 experienced Trusts and Estates and Elderly and Vulnerable team who are on hand to sensitivity advise and guide you through the process.
More about Lasting Powers of Attorney…
More about Deputyship…
The Issues of Deputyship Management have recently been highlighted in the media. You may have seen the reports surrounding Britney Spears, and her father having control over her finances through something called a Conservatorship. Her father was granted control over her finances in 2008, after it was decided that Ms. Spears lacked the capacity to manage her own property and finances. Ms. Spears however alleged that the Conservatorship carried on for too long and that her father had abused his position. Ms. Spears has now successfully challenged her father’s Conservatorship and is once again managing her own financial affairs.
Do we have Conservatorship in this country?
In England and Wales, the equivalent of a Conservatorship is a Deputyship.
What is a Deputyship?
A Deputyship is a Court Order made by the Court of Protection. In essence, the Court of Protection will consider whether someone (“P”) has the mental capacity to manage their own finances. If, based on the evidence presented to them, they consider that the individual concerned lacks mental capacity, they will grant a Court Order appointing a Deputy to manage that person’s financial and property affairs.
When is a Deputyship needed?
If “P” has indeed lost mental capacity to manage their own finances. This could occur due to illnesses such as dementia, mental health disorders or due to “P” being in a coma. A Deputy can ensure their financial affairs are in order. A Deputy can also be appointed to make decisions relating to the health and welfare of “P”, under a separate Court order.
How do I become a Deputy?
In order to be appointed as a Deputy, an application has to be made to the Court of Protection. Several application forms have to be completed. Indeed, the proposed Deputy must complete application forms providing their information, and confirm that they fully understand the duty they are undertaking and the responsibilities that come with being a Deputy. The Court requires details of “P”, details of “P’s” finances and a capacity assessment which should be completed by an appropriate health professional.
What happens once I become a Deputy?
Once a Court order has been made appointing an individual as a Deputy, the Deputy then has legal authority to control “P’s” finances. Once the Court order is granted, the Deputy assumes responsibility for that individual’s finances, and so must ensure they manage everything accordingly.
The Court Order will however place restrictions on the powers available to the Deputy. The Court will not usually issue a Court Order which gives carte blanche to the Deputy to manage “P’s” affairs in whatever way they see fit. For example, the Court will usually require a further application in order to sell property belonging to “P”.
What does Deputyship Management involve?
Deputyship management includes looking after “P’s” property, paying their bills and care fees (if applicable), making sure they receive any benefits they are entitled to and ensuring they have enough income to meet their needs. Deputies also have to keep a record of all financial transactions they undertake on behalf of “P”, and each year have to complete a report and send this to the Office of the Public Guardian.
Furthermore, professional Deputies, that is Deputies who are paid for their role as Deputies, have to ensure they comply with the Office of the Public Guardian Professional Standards. Failure to adhere to the standards could mean that the Office of the Public Guardian investigates whether the Deputy is competent enough to be a Deputy, and in some circumstances may refer the matter to the Court of Protection who may remove the Deputy in question.
If you need advice on how to put a Deputyship order in place or would like to discuss a Deputyship issue…Talk to Tollers on 01604 258558, our team is on hand to answer your questions and guide you through the process. To find out more on out Deputyship Management services click here.
More information on how to become a deputy…
Despite the political dramas last week, the Government’s controversial proposal for Social Care Reform passed the House of Commons by a small majority.
Further to our article of 13th September 2021, which provided an overview of the proposed ‘Building Back Better’ reform, the new updated summary from the Government now highlights the fact that the proposed “care cap” of £86,000 does not apply to all of the fees one might be expected to pay for “care”. The summary indicates that a notional rate of £200 per week will be applied nationally for “daily living costs”, which represents rent, food and contribution to heating and bills. This would be paid by those receiving care, in addition to the care element of their fees. Only the care element will count towards the proposed “care cap”.
Further clarity is provided also in respect of the effective date of October 2023 as the summary now suggests that all those who are already receiving care prior to this date will also benefit from the new proposals. However, any fees paid prior to the effective date will not count towards the cap. Their contributions will simply be monitored from that point onwards.
This also means that anyone receiving care which they have arranged themselves in their own homes will also benefit from the new proposals. It will be a task for the Local Authorities to identify those individuals ahead of October 2023 so that their care contributions can be monitored effectively.
The updated Government summary can be found here:
Adult social care charging reform: further details – GOV.UK (www.gov.uk)
At this stage, it is too early to say what the end result may be for the proposed reform. As the bill now moves forward to public consultation in the New Year, Tollers will be watching closely and will be providing further updates to ensure that our clients are kept fully up to date as the bill progresses.
If you have any questions regarding the Social Care Reform Bill and how it may impact you or your loved ones… Talk to Tollers on 01604 258558 and speak to our highly experienced Elderly and Vulnerable Client Law team who are on hand to guide you through.
“Build Back better” is the name of the Government’s recently announced proposals for reform to health and social care. After several campaigns for reform, these proposals may be welcomed in theory, but what does this look like in practice?
The Government last week announced proposals to invest approximately £36 billion into the health and social care sector over the next 3 years. The aim is to address issues in the NHS and social care which have been both exacerbated and highlighted by the COVID-19 Pandemic.
As well as addressing specific problems, such as the NHS backlog of an anticipated £5.5million patients awaiting treatment in England (in addition to those in the wider UK), the funding is also intended to address concerns over the sustainability and fairness of social care funding.
How will this be funded?
The Government’s primary suggestion currently up for debate is to temporarily increase National Insurance Contributions by 1.25% from April 2022, before introducing a separate “Health & Social Care Levy” from April 2023, when NI Contributions will be adjusted down to current levels once again. The new Levy is also intended to apply for individuals over pension age.
They also propose an increased tax on dividends of 1.25%.
What does this mean for Social Care?
A cash injection of £26 billion is a great start to the social care reform many have campaigned for. However, when you dig a little deeper it appears that an alarmingly small proportion of this investment (around £5.4 billion) appears to have been specifically earmarked to support the social care sector directly.
The intention for this fund over the next 3 years is suggested to include the publicised “cap” on personal care, providing general support for the social care system and to support with funding for those with limited means.
In addition, a further policy document (a white paper) is anticipated to be prepared in the near future to further address these issues with a view to creating a better system of integration between health and social care.
The white paper is expected to consider the promotion of care which is “fair and accessible”, of “outstanding quality” and to promote the independence and choice of individuals. The current proposal acknowledges unfairness in the current system, which sees self-funders with assets paying more for care in order to subsidise those who are supported by the state.
In addition, there appears to be a drive to promote careers in social care, with better development and training opportunities, mental health support and improved recruitment. There also seems to be a drive in the new reforms for better support and advice for unpaid carers, improved availability of information and more investment in supported housing and grants for disability adaptations.
Changes to care funding in England – October 2023
Below is a summary of the current basic rules* for care funding in England, together with the Government’s new proposals.
|Level of assets||Current Rules|
|Over £23,250||Self-funder- You pay full cost for your care, whatever that may be.|
|£14,250-£23,250||Contribution – You pay all relevant income towards your care, plus a “tariff income” of £1 for every £250 you have in capital assets over £14,250.|
|Under £14,250||Supported – You pay your relevant income towards your care only. Nothing is paid from savings or capital.|
Property – Under current rules, your house is disregarded from your financial assessment in certain circumstances (for example if you, a spouse or dependant relative live there). This rule is intended to remain in some form under the new proposals.
|Level of assets||Proposed Rules|
|Over £100,000||Self-funder- You pay full cost for your care, whatever that may be.|
|£20,000-£100,000||Contribution – You pay all relevant income towards your care, but if this does not cover all of the care costs, you must contribute up to 20% of your “chargeable assets” each year.|
|Under £20,000||Supported – You pay your relevant income towards your care only. Nothing is paid from savings or capital.|
The proposals suggest that adults (of any age) who start to receive social care after October 2023 will benefit from the new changes.
From April 2022, there will also be inflation-linked increases to the amount an individual can retain from their income when paying towards care, which is currently only £24.90 per week for those in residential care facilities. (Minimum Income Guarantee / Personal Expenses Allowance)
What about the care cap?
The Government’s proposed “cap on personal care” will feature in the calculations above. Whilst this may have grabbed some attention in the headlines last week, it is worth noting that the cap will only apply to part of the services you pay for within a person’s “care fees”. In fact, “personal care may only make up a small amount of the overall cost you pay towards care. Other costs may be referred to generally as “care fees” but they actually represent “hotel” costs or “bed and board”, such as food and accommodation.
The proposed cap of £86,000 for personal care costs will only limit part of the care fees payable and may never be reached for some individuals, particularly when considering the generally limited life expectancy of individuals in care facilities.
It is unclear from the current proposal how the Government intends to monitor or regulate this to ensure that care providers do not take advantage by increasing the other costs to make up for the loss of “personal care” costs after the fee cap is reached.
Tollers await more clarity on the practical impact of the proposed reforms with anticipation.
The full plan for health and social care can be read here: Build Back Better: Our Plan for Health and Social Care – GOV.UK (www.gov.uk).
If you have concerns about a loved one’s care fees…Talk to Tollers Elderly and Vulnerable Client Unit (EVCU) on 01604 258 787, the team is on hand to guide you through as changes occur.
* Please note that this is a general overview relevant at the time of publication. As there will inevitably be some exceptions and disregards in income and capital not detailed here, you should consider seeking advice in relation to your individual circumstances.
The Alzheimer’s Society’s Dementia Action Week is taking place this year between 17th-23rd May 2021. It is an opportunity for individuals, organisations and other charities to show their support for people living with Dementia and to raise awareness of the condition. Alzheimer’s Society indicate that statistically, as many as one in three people born in the UK will eventually develop Dementia.
According to the Alzheimer’s Society, one quarter of all COVID deaths in the UK are made up of individuals with Dementia. They indicate that the Coronavirus crisis has highlighted issues with the social care sector which need to be addressed. This year, Alzheimer’s Society are leading Dementia Action Week with a focus on campaigning for reform of the social care system, which the Alzheimer’s Society considers difficult to access, unfair and costly.
Tollers is a volunteer Dementia Champion with Alzheimer’s Society. We delivers Dementia Friends information sessions in the community and “virtually” online. These sessions are FREE and aim to dispel myths and to improve the awareness and understanding of Dementia.
Tollers’ EVCU team are already Dementia Friends. Becoming a Dementia Friend is simple, easy and informative. You can do your part to make your community that little bit more Dementia Friendly. For more details, you can visit the Dementia Friends website: https://www.dementiafriends.org.uk
If you would like to show your support for Dementia Action Week, why not arrange a Dementia Friends information session with your colleagues, friends or family? Perhaps you would prefer to get involved with a fundraising event? You could even Talk to Tollers if you are considering leaving a legacy or gift to the charity in your Will.
For general information and dementia support, or for ideas on how you can get involved with Dementia Action Week, visit the Alzheimer’s Society website: Dementia Action Week | Alzheimer’s Society (alzheimers.org.uk)
Find out more about Tollers Elderly and Vulnerable Client unit here: Elderly And Vulnerable Clients | Tollers Solicitors – Talk to Tollers
With the further easing of lockdown restrictions this week, the nation begins its return to a new form of normality. In the wake of the Coronavirus Pandemic, the World will undoubtedly be asking itself: “What could we have done to be more prepared”?
For those individuals that have been shielding throughout the lockdown such as the elderly, those with underlying medical conditions and those in residential communities and homes for older people, there is a simple step which you can take to protect yourself in the event of future crises.
A Lasting Power of Attorney (LPA) would allow you to choose people that you trust to manage your affairs and make decisions for you if you were unable to make them for yourself. Most people consider these documents to be effective when loved ones lose what is known as “mental capacity”. However, there is a more practical side to the Lasting Power of Attorney for finances.
The financial Lasting Power of Attorney (LPA) can be used even while you still have your mental faculties. With your consent, your loved ones are able to pay bills for you, do your shopping, visit the bank and move your money around on your behalf. That means that if you are shielding at home during a lockdown, or if you are simply away on holiday or have a stay in hospital, your trusted Attorneys can continue to manage your finances for you.
Lasting Powers of Attorney (LPA) do not run out: they last throughout your lifetime and do not need to be renewed. This is the best form of protection for you, your Attorney and your finances. You should NEVER pass over your bank card and number as this is not secure and your loved one could end up getting in trouble for using it in this way.
An LPA must be made while you have mental capacity and can understand it fully. As none of us know what may be around the corner, it is best not to delay in starting this process. The documents have to be registered before they can be used, and this process can take around 3 months. It is therefore important to get these affairs in order sooner rather than later.
Don’t get caught short…talk to Tollers Elderly and Vulnerable Client team on 01604 258787 to request a factsheet, discuss your requirements further or visit our website: https://www.tollers.co.uk/elderly-and-vulnerable-clients/lasting-power-of-attorney/ for more information.
The Coronavirus Act 2020 received Royal Assent on 25th March 2020. It brings with it some temporary but important updates to the Care Act 2014, Mental Health Act 1983 and to NHS Continuing Healthcare.
NHS Continuing Healthcare
The National Framework sets down guidance for the completion of assessments for continuing healthcare. Continuing healthcare or “CHC” as it is more commonly known, enables a person to receive free care, fully funded by the NHS in certain circumstances.
Under the Coronavirus Act, all CHC assessments have been put on hold. This is due to the reduced capacity and higher demands placed on the NHS at this time.
As a result, new or extended support packages provided during the Coronavirus crisis will be funded under CHC until a full assessment can be made. This allows people who are potentially eligible under the scheme to be discharged from hospital with maximum efficiency and minimal administration.
Mental Health Act (1983)
Detention under Sections 2 and 3 of the Mental Health Act has been made more flexible under the Coronavirus Act. As a result, detention can now be made on the advice of one doctor, as opposed to two. This amendment was made in response to the increased demand on Doctors during the COVID-19 pandemic.
This amendment has been made to ensure that those most in need of support at this time can continue to access services for treatment.
Local Authorities have a huge number of statutory duties under the Care Act 2014. In response to the Coronavirus outbreak, the Coronavirus Act seeks to lift some of these restrictions to ensure greater flexibility for the Local Authority to prioritise help for those most in need.
Local Authorities are now able to choose the people and the needs they ought to prioritise during the COVID-19 restrictions and they are currently not duty-bound to meet all needs as they would ordinarily have been under the Care Act 2014. They have the power to decide whether to undertake an assessment of a person’s care and needs and whether to undertake financial assessments during this crisis.
Most Local Authorities will be seeking to prioritise those needs assessments which are absolutely critical at this time.
Registration of Deaths
The Coronavirus Act has made the registration of deaths more efficient and straightforward, in order to meet potential for high demand whilst reducing face-to-face contact for registrars and people alike.
As a result, deaths may now be registered over the phone or “by other means” as determined by the Local Authority.
In addition, Funeral Directors are now being permitted to register the death of a person for whom they are instructed to carry out the funeral. This is an extension of the usual categories of people who are able to register a death.
If you would like more information on the impact of Coronavirus and how this affects you, Talk to Tollers Elderly and Vulnerable Client team on 01604 258558 and they will be happy to assist you.
Lasting Powers of Attorney (“LPAs”) can be extremely useful, if not invaluable documents when made and used correctly. They allow you to choose ‘the who’, ‘the when’ and ‘the how’ in relation to decision-making for you in the event that you become unable to do so for yourself in the future. They can also allow your Attorneys to assist you if you are unable to get out and about, as they can access banks, pay bills and support with shopping even while you have capacity.
With greater access to information, there is now a prevalence of Wills and LPAs being completed at home or by unqualified or non-legal professionals. There is always a temptation to cut corners and save costs wherever possible, but if this is at the expense of the usefulness of such an important document, is it really worth it?
When it comes to legal documents, the answer is usually no and the advice is to leave it to the experts wherever possible. Even if you feel confident and familiar with the forms, you may not appreciate the extent of the decisions you make within the document, which could reach far further than you anticipate.
A recent study by Solicitors for the Elderly (“SFE”) looked at the completion of online LPAs by members of the public. As part of the study, people were given the opportunity to discuss their newly created LPAs with a Solicitor after creation. All participants reported after the meeting with the Solicitor that they would make changes to their LPAs after receiving proper advice.
A common area for confusion is where Attorneys are appointed jointly for some decisions. A joint appointment of Attorneys means that all Attorneys are required to act together for all decisions. As a result, if any one Attorney loses capacity, passes away or renounces their role, the document would cease to be effective for all remaining Attorneys.
Another issue we often find is a simple misunderstanding of when replacement Attorneys can exercise their powers. They are not permitted to step in unless your original Attorney(s) is/are permanently unable to act. A replacement Attorney therefore does not step in where an original Attorney is on holiday, for example.
These are just some of the issues which need to be fully discussed and explored to ensure that you have provisions in place to protect you if the document needs to be used.
Further, in a recent analysis, the Office of the Public Guardian (“OPG”), which is responsible for the registration of Powers of Attorney, reported that 1 in 5 LPAs contained errors. When LPAs are submitted with errors, or unworkable details, the OPG will return the document for correction, which could include having it re-signed by all parties involved. This can cause unnecessary delays and could result in a second payment of the registration fee, if documents are not returned swiftly to the OPG.
There are also issues which may not be flagged immediately on registration, which could cause a problem later down the line. Of particular importance is the drafting of the guidance and instruction sections of the LPA. These sections allow the LPA to reflect your specific wishes for its use and can enable the document to be tailored to your needs. If not properly drafted, you could find that your wishes are misinterpreted, un-workable and cut from the LPA or that they simply go too far to restrict the powers of your Attorneys. As a result, you could find that your documents are not fit for purpose.
Tollers can relieve you of the burden and the stress of what can prove to be an overwhelming process. We can take care of the whole process from start to finish for a fixed fee so that you can have total peace of mind knowing that if/when the time comes, your documents will function as you intended.
Our team are continuing to accept new instructions and to process applications for Lasting Powers of Attorney during the Coronavirus restrictions. For more information… Talk to Tollers on 01604 258558 and the team will be happy to assist you. Meet our team here: Our Wills, Trusts and Estates Team
Over recent weeks, Tollers has taken robust measures to protect our staff whilst allowing them to continue to provide our clients with professional advice from their homes. Our staff remain contactable at all times by telephone or by e-mail.
Face to face appointments with our clients have been suspended until further notice unless they are absolutely critical and even then they are only able to proceed provided that none of the prospective participants are at risk or displaying any symptoms.
In order to continue to service our clients during this difficult time, Tollers’ Trusts and Estates Team have put together a faster process to provide Wills and Lasting Powers of Attorney with a professional and efficient turnaround.
All you need is the ability to communicate with us via video link, whether that be using WhatsApp, Skype or Zoom, and a third party (friend or neighbour) who can witness your signature.
Making a Will with Tollers during the COVID-19 restrictions is easy: –
- Contact our offices by phone or e-mail to arrange an initial discussion.
- Provide your instructions to one of our experts by video call. This will include full names and addresses for those you wish to include in your Will.
- A draft Will is then sent out to you for approval with our terms of business.
- Once approved, a Will can be sent to you with instructions for completion at home. Guidance can be provided by phone or video call if required during your Will signing and you will need at least two independent people to witness you signing.
- Once completed, the Wills can be returned to Tollers for safe storage and a copy of the documents will be provided for your records.
All of our Wills are prepared for fixed fees from £225 for a single Will and £360 for mirror Wills. All Tollers Wills include free registration on the Certainty National Wills Register and ongoing storage of your original Will with Tollers.
Our Lasting Power of Attorney process is equally stress-free: –
- Contact our offices by phone or e-mail to arrange an initial discussion.
- Provide your instructions to one of our experts by video call. This will include full names, dates of birth and addresses for those you wish to act as Attorneys.
- Terms of business will be sent to you for signature and return.
- Your Lasting Powers of Attorney will be sent to you with instructions for completion at home. You will need to arrange a third party witness and another video call with us to complete the documents.
- Once signed, your documents can be returned to Tollers for further action and registration.
Our Lasting Powers of Attorney are prepared for fixed fees, depending on the number of documents you wish to make. A member of the team will be happy to provide you with a quote based on your requirements.
To find out more about our comprehensive services click here https://www.tollers.co.uk/wills-trusts-and-estates/ and to arrange an initial telephone or video consultation, please Talk to Tollers on 01604 258 502 or e-mail firstname.lastname@example.org.
Our specialist Elderly and Vulnerable Client Unit (EVCU) team have a proven track record when it comes to recovering assets lost to financial abuse for our vulnerable and incapacitated clients.
The EVCU team undertakes forensic accounting to identify mismanaged and misappropriated funds and works closely with the dispute resolution department to recover assets where possible. We also work with the Police and Social Services to safeguard our clients and their assets and to bring perpetrators of financial abuse to justice.
Sadly, in many cases of financial abuse of a vulnerable person, the perpetrator of the abuse is more often than not a close relative of the victim. This can make criminal prosecution difficult to pursue. When it comes to restoring the estate itself, it is quite often the case that the victim’s assets have been considerably depleted, often to extinction, before our involvement and that the perpetrator has completely dissipated the assets, making our chances of recovery lesser still.
Our latest success story however involves some form of justice for an elderly gentleman, D.
A Deputy Order was granted in our favour and we met with social services to collect documents and share the background of the matter so far. We obtained historic bank statements dating back several years in order to check for financial abuse. This is standard practice for our experienced team, but we had also received an indication from social services that some abuse may have occurred.
From the history of statements, we could see a clear pattern in use of D’s card, such as where D liked to shop, how often and his method of payment. Familiar activity could be seen for D over a period of months and years. It was therefore noticeable when a change in use had occurred on the account several years prior to our involvement.
Overnight, D’s activity changed from small, weekly grocery shops at a regular local convenience store, to daily ATM withdrawals of the maximum amount, online transactions and gaming and betting stores. D’s account balance was drained rapidly and transfers then started to be made via ATM to top up the account from his savings. It was immediately apparent that there had been some fraudulent activity on the account, both before and after D’s admission to care.
We undertook detailed forensic accounting, reviewing all statements and itemising suspicious transactions and changes in use. We cross referenced dates with medical evidence, capacity assessments and D’s admission into care and quickly built up a picture of the financial abuse which had occurred.
We were able to establish that D’s son had taken up occupation in D’s London property as D started to have memory problems. D’s son proceeded to make use of his father’s bank card thereafter and after D entered care, he continued to do so. D’s son also allowed several other people to occupy his father’s property and allowed it to fall into disrepair with damage as it was seemingly used as a drug den. This continued for several years prior to our involvement.
Our EVCU team worked closely with our dispute resolution department in order to achieve a successful repossession and eviction of the occupants of the property and it was later sold.
In relation to the cash assets lost however, given the lack of residence and assets of the son and in light of the drug and gambling habits evident from the misuse of our client’s account, recovery of assets from the son would not be a viable option.
Banks Beware Fraud and Financial Abuse of Older People
In this case we had no alternative but to pursue the bank itself, due to the volume of evidence of fraudulent activity and the failing of D’s bank to provide adequate checks and safeguards on his account to protect him from fraud.
We started with a letter of complaint to the bank to highlight the fraud and the issues which were apparent from the statements. The bank refused to investigate the matter and claimed that the complaint was out of time. This was because our client fell ill and lost capacity to investigate and complain himself and was left unrepresented for several years before a Deputy was appointed. This was clear discrimination and unfairly prejudiced D’s already vulnerable position.
We, therefore, moved matters onto the Financial Ombudsman Service, which investigated our complaint against the bank further. The Ombudsman found the evidence to be overwhelming and upheld our complaint. The bank was asked to award our client almost £70,000 to account for funds lost due to fraud and to go some way to restoring his estate. Inadequate reviews of the account and its activity proved a very costly exercise for the bank in this instance.
Tollers commented “This outcome, whilst just and right for D, does raise several questions, such as what level of protection should banks be offering to people? How should this be applied and to whose accounts? Where do we draw the line?”
“In this case, there was a very obvious change in use of the account from one day to the next and tens of thousands of pounds were removed in a matter of weeks. It would be difficult for anyone, particularly a large high street bank such as this, to establish that this was not a clear and obvious abuse of the account by a third party. This case is not however unique in its facts, in the experience of our EVCU team.”
“This decision seems to prove that banks do have a duty to go some way to protect people from financial abuse and fraud and that they should consider having greater supervision of the accounts they hold. With an ever-growing elderly population and a prevalence of conditions such as dementia, it seems to me that banks should now be sitting up and taking responsibility to educate themselves as the gatekeepers to our assets, in order to protect those in need and to prevent their own liability.”