Over the past 12 months, books and articles on how to live a good life past 65 years seem to have exploded.
From the Financial Times, Life Begins At Sixty – the rise of the ‘young-old’ society to Extra Time – life lessons for an ageing world by Camilla Cavendish, it seems we have suddenly woken up to the wonderful fact that 60 is no longer old and many of us who reach that age can expect another three decades of life to follow.
But we know that for some, old age is not always golden, despite the great leaps in medicine and overall improvements in lifestyle. In Being Mortal, Atul Gawande writes:
“There is no escaping the tragedy of life, which is we are all ageing from the day we are born.”
What many now fear the most is not disease of the body, but disease of the mind. Dementia diagnoses have more than doubled since 2005 according to the NHS. In 2005, 213,000 people had been diagnosed. By March 2018, 535,000 were registered as living with dementia.
Ageing and the increase of diseases of the mind has resulted in many more Lasting Power of Attorneys (LPAs). According to data obtained from the Family Court by law firm Wilsons, the number of registered LPAs rose to almost 900,000 in 2019, a 192% increase on the 273,583 new LPAs in 2013.
Increases lead to a risk of abuse
Research from law firm Nockolds found a significant increase (71%) in the number of Court actions related to LPA misuse from 2016/17 to 2017/18. Most of these relate to improper gifts and not acting in the vulnerable person’s best interests. In addition, the Office of the Public Guardian (OPG) launched 1,186 safeguarding investigations in 2017/18, up 50% from the previous year.
However, lawyers say these figures represent the tip of the iceberg.
Peter King, partner at Nockolds, told FT Advisor:
“While action by the OPG may be increasing, misconduct is notoriously difficult to detect, so these numbers likely represent the tip of the iceberg.
“Many LPAs are now created without any professional advice. Unfortunately, the system is open to abuse, and with most banking now conducted online, there is little to no oversight of the transactions that take place.”
In 2018, Ann Stanyer investigated the scale of elder abuse associated with LPAs and found that in 2016, there were 1,378 safeguarding records made for people 75 or older. However, she stated that because the records are incomplete, the details of the abuse and action taken is not clear. Without such data being available, it was difficult to prevent elder abuse in connection with LPAs.
Digitalisation not the answer – yet
In 2017 the Financial Conduct Authority (FCA) proposed an ‘end-to-end digital system for LPAs which would remove the requirement of a ‘wet-signature’. However, Solicitors were quick to point out that such a development could significantly increase instances of financial abuse and fraud. Unscrupulous family members could easily register an LPA without any proof the donor understood the details and consequences of what they were entering into.
But digitalisation of a different kind can play a part in preventing abuse. For example, Blockchain technology, already providing benefits to contract, IP, and property law could deliver a method of LPA storage completely protected from any chance of tampering.
Suggestions for improving LPA protection
In her article, Ann Stanyer provided several improvements that could see abuse around LPAs reduced. These include:
- Bringing back mandatory notices of LPAs to close relatives, so they have a chance to object to an attorney they do not believe is suitable.
- Reinstate certificate provider qualifications and ensure only Solicitors or healthcare professionals can provide the certificate.
- Introduce a surety bond arrangement and accounting controls for attorneys and LPAs. The latter can be triggered by the OPG being notified that an LPA is active when an attorney becomes registered on the donor’s bank accounts.
Does America have it right?
In 2017, the Elder Abuse Prevention and Prosecution Act (EAPPA) was passed by Congress. The goal of the EAPPA is to address financial abuse and exploitation of elders on a national scale. Its scope is very broad and includes a crackdown on scams which deliberately exploit elderly people. However, it also introduces a training program for investigators of elder abuse, a requirement for data collection, and a strong program for prevention.
The introduction of tougher laws and data gathering powers are required to stem the tide of LPA abuse, which is set to increase further in the years to come given the fact a large section of the population understands the need for an LPA.
Unfortunately, the government does not seem to be in any hurry to act.
