6 Financial abuse
77. AEA identified financial abuse as the second
most frequent category of abuse, from its analysis of helpline
calls.[63] It noted:
"Of all calls to the helpline regarding financial abuse,
the misuse of unregistered powers of attorney[64]
continues to be one of the greatest concerns expressed."
Although, as the Institute of Gerontology, King's College London
stated, there is little research on financial abuse in its own
right "such evidence as there is suggests that it may be
more of a problem than is recognised; that it is more likely to
be perpetrated by more distant relatives or paid carers and that
older people living on their own and suffering from dementia are
most at risk."[65]
78. A further indicator of the high prevalence of
financial abuse is contained in the submission from the Bromley
Adult Protection Committee. whose services manager is a joint
appointment between social services and the primary care trust.
This states that the two main areas of concern are financial abuse
of older people living alone and physical abuse of older people
in care settings.[66]
79. The Oxfordshire Social and Health Care Directorate
reported to us data relating to "concerns, disclosures or
allegations" reported to its Vulnerable Adult Protection
Worker for the period 1 January to 30 September 2003. These figures
were disturbing: financial abuse was identified in 88% of reported
cases of multiple abuse by family members but in only 8% of such
cases by paid staff.[67]
80. Measures which may well serve to strengthen the
protection of older people in cases of financial abuse are contained
in the Mental Incapacity Bill, which has been published in draft,
and has been subject to pre-legislative scrutiny by a Joint Committee
of the Lords and Commons.
81. The draft bill contains proposals to reform the
decision-making process for those aged 16 and over who are unable
to make decisions for themselves. Proposals in the draft bill
would extend the present enduring powers of attorney to a new
lasting power of attorney, which will include decisions on welfare
and healthcare as well as financial management. The Joint Committee
received disturbing evidence indicating serious abuse of financial
powers under the present enduring powers of attorney which it
was determined the bill must strive to curb. Stricter safeguards
would be needed and those who acted under these powers would need
clear guidance on what is involved and be required to keep adequate
records of financial transactions. The draft Bill also proposes
the introduction of a new Court of Protection: a more accessible
single jurisdiction with powers and authority akin to those of
the High Court.
82. We recommend that the prevention, detection and
remedying of financial abuse should be included as specific areas
of policy development by adult protection committees.
83. We endorse the recommendations of the Joint Committee
on the Draft Mental Incapacity Bill[68]
relating to Lasting Powers of Attorney (LPA). The Joint Committee
recommend:
· that
the Bill should make clear whether it is intended that personal
welfare decisions, excluding those relating to medical treatment,
may be taken when a donor retains capacity. Further, clarification
of the extent and limitation of the powers, as well as adequate
guidance and training for donees, are also strongly recommended;
· that,
whilst individuals should have freedom to choose their donee(s)
when making an LPA, further guidance should be provided to warn
donors of the potential for conflict. Furthermore, an additional
safeguard should be included in Codes of Practice as a mechanism
by which the Court of Protection or the Public Guardian could
monitor the use of LPAs with a view to preventing the abuse and
exploitation of a donee's powers;
· an express
duty of care should be incorporated into the draft Bill in respect
of donees acting under an LPA (and for Court Appointed Deputies).
A greater degree of accountability should be required from those
groups in order to limit the potential for abuse of their powers
and effective methods should be explored to achieve that end.
In particular, specific requirements in the form of a standard
of conduct should be included in the Codes of Practice, aimed
at those exercising formal powers under the draft Bill;
· donees
should be placed under an obligation to notify both the donor
and the Public Guardian that the donor is, or is becoming incapacitated,
thereby putting this information on the public record and opening
it up to challenge. Guidance should be provided to assist financial
institutions to deal with the operational realities of LPAs; and
· the
additional safeguard of requiring two additional persons to witness
the certification of capacity should be included where there are
no named persons for notification of the registration of an LPA.[69]
84. We further recommend that the regulatory bodies
of health and social care increase their surveillance of financial
systems including the use of powers of attorney and, in care homes,
the use of residents' personal allowances.
63 Ev 15 Back
64
Unregistered powers of attorney - provides for an appointed attorney(ies)
to manage the affairs of the donor, but does not have the same
level of protection against abuse of that power that a registered
power of attorney enjoys. Abuse of a registered power of attorney
can be brought to the attention of the Court of Protection. Back
65
Ev 150 Back
66
Ev 170 Back
67
Ev 187 Back
68
Joint Committee on the Draft Mental Incapacity Bill, Session 2002-03,
Draft Mental Incapacity Bill, HC1083-1 Back
69
Joint Committee on the Draft Mental Incapacity Bill, Session 2002-03,
Draft Mental Incapacity Bill, HC1083-1, paras 144, 150,
154, 157,159 Back
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