Protecting older people from theft by appointing someone with powers of attorney is more necessary than ever, says John Scott Moncrieff
ONE uncomfortable truth of the modern age is that the vulnerable elderly, along with others at risk are, increasingly, falling prey not only to those close to them but even some legally-entrusted attorneys prepared to abuse their trust and legal powers.
To this pool of miscreants one must add those persons who are prepared to abuse the title of “carer” by accessing PIN numbers or by pressuring the individual who might well have become the most reliant upon them to hand over money, both in life and through a will.
Old and impressionable people can be extremely stubborn and in the often difficult situation of them being adjudged to be (or having been) suffering from mental incapacity, it can be as difficult as it is traumatic and, in all probability, expensive to try to “undo a wrong” or, possibly, a crime.
Believe me, this is not sensationalism. With many sectors of society experiencing severe financial hardship it can, for some of those positioned to exploit it, be all too tempting to abuse others financially, the vulnerable elderly in particular. In the mind of the thief, the sum involved might well just be a “loan” or even a “gift” that the account-holder might have made if in a mental position to do so. In the eyes of the law, though, as well as in those of the ultimate beneficiaries feeling cheated of an anticipated inheritance, theft is just that.
It goes without saying that the best way to avoid the possibility of financial abuse in the future is to “get it right” now by appointing persons with powers of attorney, who are answerable to the granter of the power, to his or her ultimate heirs, to each other and, of course, to the Office of the Public Guardian.
However for the reasons stated above, it has become increasingly important to think carefully and choose wisely.
In granting powers of attorney, I would strongly advise the appointment of at least two individuals and, sometimes, also a third as a possible “substitute” when the time to activate the power comes. It makes sense for the attorneys to be younger than the person entrusting them with powers that are nothing if not all-embracing. Also, attorneys should, ideally, have something of a personal feel for the granter, for example his or her idiosyncrasies and general approach to life. This “trust” element will help seal what is very much more than just a business relationship.
Unfortunately, it is not just in terms of financial abuse that these increasingly almost vital documents might fail to be as useful as originally intended. The attorneys themselves might, for example, be just as frail and incompetent as the granter now is, unable to cope with (say) electronic banking or simply lacking the time or inclination to carry out the task properly. The most inappropriate appointment made in my experience was over the granting of “welfare” powers, covering the likes of possible future medical attention and residential care provision, which had been given to the trustee department of a High Street bank. Mercifully the deed, when found, was still unsigned but sadly the new client’s health was by then at a stage that the only solution was the complex, comparatively expensive and often upsetting one of applying for the appointment of a Legal Guardian.
We enter 2014 in the knowledge that around 345,000 older people living in private British households are abused financially each year, with Age UK estimating that this figure rises to 500,000 when such abuse in care homes is included. This dilutes to 50 elderly people being deceived or financially abused in their own homes every hour by relatives, neighbours or care workers, some of whom will have been officially vetted.
It has been estimated that 76 per cent of households occupied by older people are owned, mostly outright, by the occupier. That (and the fact that, last year, it was calculated that £121 billion was the total spending power of households headed by someone over the age of 65) helps explain why a great many people are vulnerable to exploitation. Initially the predators might well pilfer comparatively trivial amounts before graduating to the self-delusional state of believing that the unwitting “donor” “would have wanted them to have rather more… in some instances a lot more.
Festive season get-togethers (so often denied to the lonely, vulnerable elderly) have given millions the recent experience of the well-worn adage that one can choose one’s friends but not one’s family. “Choice” is one thing, but “trust” is totally another.
• John Scott Moncrieff is a partner with Murray Beith Murray murraybeith.co.uk