How to protect the elderly from financial abuse

Whoever is appointed as the donee must act exclusively in your clients' best interests. That includes first taking all practicable steps to help clients make a decision for themselves before taking it on their behalf.

If the client cannot make a decision, the donee must have regard to, among other things, how the client has managed their finances in the past. 

If there is no history of the donor spending money in a certain way, the donee must seek the Court of Protection’s permission to do so.

If there is evidence that someone has abused their position as a donee, the Office of the Public Guardian (OPG) can refer the case to the Court of Protection for further consideration. 

Creating a will

As well as being the best way to ensure that your clients' wishes and intentions regarding their assets are implemented after they die, creating a will while there is no concern about their mental capacity can protect your clients against attempts by family members or others to pressure them into making them beneficiaries of your clients' estate.

There are a number of difficulties if there are questions about a person’s mental capacity at the time the will was created. It must be shown that an individual lacked capacity to make a will, or “testamentary capacity” if their will is to be declared invalid on the grounds of lack of capacity.

This was illustrated in the 2017 case of Ashman v Thomas. Mrs Thomas’s brother claimed that he was the executor and principal beneficiary of her one of the three wills she had purportedly made.

The local authority had applied to the Court of Protection to be appointed as deputy of Mrs Thomas’ property and financial affairs due to “concerns of neglect and financial abuse” carried out by her brother, but she died before these proceedings could be resolved.

Mrs Thomas’s son challenged the validity of the will relied upon by her brother and introduced evidence suggesting that Mrs Thomas had been confused and possibly suffering the onset of dementia.

Despite this evidence, the Judge held that "merely showing that a testator suffered from confusion or some level of dementia is insufficient to render that person incapable of making a will".

There is a need for local authorities to take a more muscular approach to their adult safeguarding powers under the legal framework in the Care Act 2014. 

The Court did however find that the will failed for want of knowledge or approval by Mrs Thomas and she therefore died intestate.