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Lawyer Montly : Mental Incapacity & Personal Finance Are Not Good Bedfellows

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Latest figures estimate that over 130,000 people living in the community aged 65+ have suffered financial abuse at some point since turning 65*. This, it would appear, is only the tip of a largely unreported financial abuse iceberg, according to David Lockwood of Finders International.

The UK’s current demographic is providing near perfect conditions for a hot bed of financial abuse among vulnerable adults. There are currently 850,000 people in the UK living with dementia. In the next decade this could increase to over one million, and by 2051 to two million**. At the same time, nearly 300,000 people are diagnosed with cancer every year – a significant number of whom will be unable to manage their finances at some point during their illness***.

These frightening statistics do not marry up with the latest available figures from the Office of the Public Guardian that showed only 626,165 lasting power of attorneys (LPO) were registered in 2016/2017.

Melanie Christodoulou, solicitor at FurleyPage, advises that appointing a LPA should be the first port of call for anyone wanting their financial affairs to be managed by someone they wholly trust in the event that they lose capacity to do so themselves. However in the thousands of situations where there is no LPA in force, and often no next of kin it can fall on the local authority, usually after being alerted to the need by a social services team, to become ‘financial guardians’ for these vulnerable adults.

This has resulted in an all time record number of people being subject to deputyship orders – orders issued by the Court of Protection appointing a Deputy Decision Maker to manage the property and financial affairs of a person deemed not to have the capacity to do it themselves.

Figures for 2012/13 showed 45,804 deputyship orders. In 2016/17 that number has risen by 27 per cent to 58,205 (source: Office of Public Guardian), with roughly one third of these supervised by deputyship teams within local authorities in England and Wales.

The process is often complicated and requires local authorities, their deputyship teams and internal solicitors to progress lengthy applications, supported by key evidence, and then step in to manage all the financial affairs in that person’s best interest. Local authorities often act as a last resort where there is no one else willing or able to take control of an individual’s affairs.

Not surprisingly local authorities report that costs to manage all of this escalate and current arrangements of fixed fees simply don’t cover the expenditure required to deliver the service. Fixed fees for professional deputies (both Solicitors and Local authorities) were raised in 2017 following many years of stagnation, even so the levels often do not reflect the amount of work undertaken in many cases.

Former council corporate deputy and appointee, David Lockwood said: “This deputyship provision is very much needed, and as latest figure show demand is increasing at an unprecedented rate. Sadly the fees just do not cover the work undertaken in some cases.”

As local authorities struggle with budget cuts, Paul Cruickshanks, Court of Protection Costs manager at bSquared Costs Law, recommends applying to the Court of Protection to have your costs assessed by the Senior Courts Cost Office (SCCO).

He says: “The subject of applying to the SCCO for costs to be assessed and maximising their return is a recurring topic for many deputyship teams. Rule 156 states that when P’s property and affairs are being dealt with, the costs are usually payable from P’s estate. I would always recommend requesting an option to have your costs assessed. The way in which costs are to be assessed can be more straightforward than one might expect, but authority from the Court of Protection is required. You still maintain the option of taking fixed costs.”

Paul suggests the benefits of such an approach are twofold.

(1) In having your costs assessed, you are able to ensure that you are fairly remunerated for the important work you are undertaking.

(2) The SCCO has a duty to ensure that only costs reasonably incurred and proportionate in amount are payable by the protected party. By having your costs assessed, you can be sure that your client only pays what is fair and reasonable.

David Lockwood of Finders International said: “The role of deputyships, both independent and within local authorities, is vital to ensure vulnerable adults are not subjected to further financial abuse. Securing access to adequate funds to allow deputyship teams to provide this in-demand service is a direct reflection on how society looks after its must vulnerable.”

Source:

*CR/DH & Dept of Health study.

** Alzheimer’s Society.

*** according to research by the charity Macmillan.

This article has been first published in lawyer monthly.