Law Commission Perceive E-Signatures As Legally Binding

Is There An Increase In Attorneys Abusing Their Clients’ Finances?

Figures released recently by the Office of the Public Guardian (England and Wales) (OPG) showed reports of concern at a higher level than ever before, and specifically, more claims than ever before about attorneys abusing their donor’s finances.  The reflex conclusion is – there is an increase in the amount of abuse, but is this necessarily the case?

There are a range of factors which may have led to the increased reporting:

  • There is more awareness than ever before of the concept of elder abuse. This is not to suggest that the increase in the OPG’s figures is all elderly abuse but there will be a correlation.
  • There is increasing awareness of what constitutes financial abuse.
  • Having this increased awareness and understanding has led to reduced tolerance.
  • There is more willingness to report such abuse. People are increasingly aware that they will not be judged for what may be perceived as ‘whistleblowing’.
  • The OPG has run a wide reaching media campaign, the increase in reports of concern may be a measure of the success of this campaign, but also means that people know to, and to whom to, report concerns.
  • There is much more awareness of the role of an attorney, of what one should expect from a person in this role – and more specifically what is not acceptable.
  • There are more Powers of Attorney (PoA) than ever before being registered so a correlation in the numbers of abuse may be no surprise, although should not be something we should either expect or accept.

This list is not exhaustive; whether abuse itself is increasing we can’t actually tell from the OPG figures in isolation, but we do appear to be getting better at recognising and reporting it, but we cannot stop there. Recognising and reporting, as valuable as they are, are reactive measures, what can we do proactively to minimise the risk of abuse arising in the first place?

At the heart lies how we conduct the client interview:

  • is the potential donor/granter aware of what a PoA truly is, the nature and extent of the deed, do they know what it means to grant ‘full powers’ to another? Do we have sufficiently comprehensive a conversation about exactly what powers, or what limit on powers, may be appropriate in the client’s circumstances?
  • Do we ensure we know what the client’s circumstances are? Do we validate the information we have been given?
  • At second, or subsequent, meeting do we formally revisit the initial views expressed by the person, to test their recall, continued understanding and willingness to enter into the PoA ‘contract’?
  • Are powers, or limits thereon, drafted with clarity? A rogue attorney will seize on and exploit ambiguity.
  • Are we sure that the client is not being, even indirectly, led by the potential attorney. Do we see the client on their own, how do we assess that the responses they give are their own view and not something they feel they should say?
  • Is the authority given to the attorneys suitable for the circumstances? Should there be more than a sole appointee, should there be a professional appointee, are there too many appointees, is joint and several authority okay in the circumstances or would joint appointment be preferable – or vice versa?
  • Do we always seek a second opinion when we have some niggling doubt about some aspect, even if we can’t put a finger on it? Do we, or should we, report these doubts to anyone? Are we willing to say no?
  • A significant factor in attorney abuse arises from attorneys’ ignorance, of them doing something they should not do, or more frequently, failing to do something they should do; not as a result of any deliberate intention but because of their negligence or lack of understanding. Do we do enough to support attorneys? How do we ensure an attorney is aware of the role and their responsibilities?

At a certain stage in life, or illness, one can see the grant of a PoA as simply the next step, the right thing to do, the expedient thing to do; advertising encourages this view, not wrongly, but it is incumbent on us to ensure we import the necessary checks and balances into the system.

Power of attorney is not, carte blanche, a licence to abuse. The vast majority of attorneys are bending over backwards, often at cost to themselves, physically, emotionally and, somewhat ironically, financially, to do a sterling job and are supporting the vulnerable person to live a high quality of life, for longer than would otherwise have been possible, and indirectly, if not directly, protecting that person from abuse.

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