Rosamund Pike recently won a Golden Globe for her portrayal of a Court Appointed Guardian and ruthless con artist, who systematically defrauds the elderly people in her care of their money.
But while her character and the storyline of I Care A Lot are fictional and based in the USA, the Netflix film raises important questions about what protection English law provides to safeguard elderly and vulnerable people from financial abuse and what you can do to protect yourself and your loved ones.
Lasting Power of Attorney
The best way to protect your finances is to make Lasting Powers of Attorney (LPA), which gives you the opportunity to nominate people you trust to make decisions about your property and financial affairs or your health and welfare should you no longer be able to make those decisions for yourself.
LPAs are not just for elderly people, as life can change in a heartbeat – even if you are in good health. For example, an accident resulting in a serious brain injury could severely impair your mental capacity and your ability to manage your finances and your health and welfare.
The exact definition of mental capacity is defined in the Mental Capacity Act 2005 Section 2 (1). It refers to ‘any impairment of, or disturbance in, the functioning of the mind or brain’. This commonly applies to someone living with dementia or suffering from brain damage, but it could equally apply to people with a very serious mental illness or a drug/alcohol addiction.
If you are deemed to have lost mental capacity – either through dementia, injury or severe mental health issues – and there is no valid Lasting Power of Attorney or Enduring Power of Attorney (EPA) in place, then an application to the Court of Protection can be made for a trusted person (perhaps a family member, friend or professional) to manage your affairs. In I Care A Lot, Rosamund Pike’s character Marla Grayson is a Court Appointed Guardian for a number of elderly people in her care – this is the equivalent role in the US, chosen by the State.
Court Appointed Deputy
The Court of Protection was created to look after the interests of people who are unable to make decisions themselves, and there are measures in place to ensure that Deputies act in the best interests of their client.
Firstly, as part of the application process, an appropriately qualified person must complete a Mental Capacity Assessment which is then submitted to the Court. This ensures the person who is the subject of the Court of Protection application is, indeed, in need of support and not being coerced by someone else to give up control of their finances. If the Assessment shows the person lacks capacity, then Court of Protection will issue the Court Order and assign the Deputies’ powers.
Once a Court Order has been made, the Office of the Public Guardian supervises the Deputy to ensure they are doing what they should be doing. The Office of the Public Guardian requires all Deputies to complete an annual report and keep accurate financial records, including receipts, which account for every penny of the money and assets they have been charged with managing.
If a dishonest Deputy slips through the net and a person’s money is stolen, a security bond is in place to give them their money back. The security bond can also be used to refund money lost by a Deputy due to a poor financial decision.
For the duration of their position, a Deputy remains answerable to the Court of Protection. So should their behaviour be called into question, they can be removed as a Deputy and they could also be prosecuted by the Crown Prosecution Service if they have acted illegally.
In summary, the law in England and Wales has measures in place to safeguard vulnerable people from financial abuse and if it does happen, the money can be refunded and justice served against a Deputy who doesn’t ‘care a lot’.
The most effective way to stop financial abuse, though, is to be proactive with your financial affairs and make an LPA to ensure your money is left in the hands of people you trust implicitly, should something happen to you.
For further information on LPAs or EPAs, you can contact resident specialist Christina Polychronakis or for further information about Court of Protection Deputy applications, please contact Hannah Smith on both the details shown below.