Many of us, towards the end of our lives, will make use of a lasting power of attorney (LPA) so that our loved ones can make decisions in our best interests on our health and/or our finances. The system was designed to safeguard vulnerable and elderly people, so that their affairs can be protected and administered by those who are best placed to do so.
However, in some cases, the LPA system is not only letting people down but is actively being abused. I spoke to Fabian Hamilton MP, who has introduced a private members’ bill to tackle some of these abuses.
Abuse of LPA legislation
I asked him how this issue first came to his attention.
“My interest in the whole issue of LPA abuse sprang out of the predatory marriage rights issue, and that started when a (then) constituent of mine, Daphne Franks, came to see me in 2018 with a shocking tale of the way her mother had been treated.”
Unknown to her family at the time, Joan Blass had married a man who was 24 years younger than her, in secret, five months earlier. She had no capacity to consent to marriage, having been diagnosed with vascular dementia, her daughter explained. Yet the marriage was considered legal and – as, under the current system, a remarriage revokes any previous will – her husband inherited her entire estate.
Existing legislation
I asked Hamilton whether there was existing legislation on safeguarding vulnerable adults, that would prevent this type of abuse.
“There is legislation, yes. But legislation is only as good as the people who enforce it, and the problem is that it isn’t being enforced. The one body that’s supposed to regulate LPAs is the Office of the Public Guardian and they simply aren’t doing their job.
“I’ll give you an example. Someone goes into a bank with an LPA certificate. He’s not related to the person who’s been granted the LPA, but he hands it over to the bank and says ‘I want to open an account in my name, and I want you to transfer the [donor’s] balance to my account’.”
“A ruling from the Court of Protection requires a bank to question any request to transfer more than £8,000 from the donor’s to the attorney’s account. The bank is legally required to contact the Court of Protection or the Office of the Public Guardian. However, while many banks are doing this, some aren’t. So even though it is a legal requirement, nobody’s monitoring it.”
Going unchecked
Nor is it just the banks who aren’t doing the necessary checks. Daphne Franks had an LPA for her mother, but this was not checked for at the time of her marriage. According to the registrar, Joan Blass was “smiling”, so the registrar assumed she was consenting to the marriage. However, her diagnosis meant that she had no capacity to consent. Forced marriage (which includes those where one of the pair doesn’t have capacity) is a criminal offence. Following the meeting with his constituent, Hamilton raised this issue with the registrar general, who has now added information on this issue to their training.
When he looked into LPAs more closely, Hamilton discovered further abuses of the system:
“What we realised was that it was more than just about predatory marriage revoking a previous will. It was people actually giving LPA legitimately to either close relatives, or sometimes not even relatives at all if they didn’t have family; in one case, it was a lodger! In a very small number of cases, people were being horribly abused and having advantage taken of them by the person who was granted the LPA.”
Who guards the guardians?
“There are about eight million LPAs registered across the country. So even if you have 0.1% abuse, that’s an awful lot of abuse. We realised that this was actually much bigger even than the predatory marriage issue – which although widespread, is not that common. This does seem to be quite common. Possibly every MP in the country’s got a dozen or more cases going on.”
All of this comes back to the Office of the Public Guardian, according to Hamilton.
“It’s a failure of inspection and regulation, rather than a piece of legislation nobody knew anything about. And it is being exploited by a tiny number of unscrupulous individuals. The long and short of it is that the Office of the Public Guardian should be fit for purpose.”
Cross-party support for change
Hamilton believes that the online LPA database held by the Office of the Public Guardian, detailing from and to whom they have been granted, should be accessible to third parties, so that checks can easily be made. Currently only the holder of the LPA can access this record. “It’s important that anybody who needs to know is able to find out who’s got power of attorney and who the donors are.”
Currently, the private members’ bill is due to be read again on 20June, but Hamilton is going to try and see somebody from the Ministry of Justice to ask them to listen to the issues and hopefully incorporate this into whatever legislation they are planning that will cover this area of work.
“There is cross-party support for the bill. It’s not a controversial issue; it’s a safeguarding issue. Everybody supports it because who would not want to prevent the abuse of older people? Every single member of parliament will have one or more cases in their constituency.”
“The Office of the Public Guardian needs to remove its financial sustainability mission statement in favour of a mission about the safeguarding of vulnerable people.”
If you, or anyone you know has been affected by any of the issues in this article, please write to your MP.
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