With the likelihood of the lockdown continuing, at least, into the middle of May, we have been considering how both attorneys and deputies (as appointed by the Court of Protection) can continue to fulfil their obligations to the vulnerable people for whom they are responsible.
None of us in the UK has faced a similar situation in living memory and so it is not an exaggeration to suggest that we find ourselves in unchartered territory. Nonetheless, by thinking creatively and pragmatically, albeit by, on occasions, taking the “least bad” option, we aim to help you navigate this crisis.
The responsibilities of attorneys and deputies
If you are an attorney, you have been appointed as such under a Property and Financial Affairs Lasting Power of Attorney (LPA) or under an Enduring Power of Attorney (EPA). The person appointing you may have lost capacity to manage their own affairs and is deemed vulnerable. Likewise, if you are a deputy, you will have been appointed by the Court of Protection in order to look after the affairs of a vulnerable individual who has lost capacity.
In both cases, you will be able to make financial decisions on behalf of a vulnerable individual including:
- managing their bank and building society accounts
- claiming, receiving and using their benefits, pensions and allowances
- paying their household, care and other bills
- buying or selling their home
- saving or making and selling investments
For those attorneys granted authority to manage the personal well-being of an individual who has lost capacity, under a Health and Welfare LPA, they are able to determine:
- where the vulnerable person should live
- personal care
- day to day routine
- medical treatments
Recent Change - national crisis and lockdown
The Health Protection (Coronavirus, Restrictions) England Regulations 2020 have placed statutory restrictions on every person in England from leaving the place where they are living “without reasonable excuse”. Understandably, this has had a direct impact not only on how a vulnerable individual’s affairs and welfare can be managed on a day to day basis but also how the restrictions can be explained to someone lacking capacity without making them unduly anxious.
The challenges faced by attorneys and deputies can be summed up as follows.
Requirement to stay at home.
- Explaining to a vulnerable person that they are not allowed to leave their home without a reasonable excuse, and the consequences if they were to do so, is challenging. If they are able to process information and make certain decisions, it may be possible, with help from family members if appropriate, to explain the situation in such a way to help them make the decision not to go out.
However, if the person has limited capacity, persuading them not to leave the house becomes a more challenging task. The individual may be in danger of breaching the restrictions putting both themselves, and potentially others, at risk of contracting Covid-19. If this is a serious risk, you could consider referring the matter to the Court of Protection for an order preventing them from leaving their home although the Court is unlikely to be able to grant an order quickly enough to deal with the situation. In the short-term, a practical solution could be to ask either family members who live with the vulnerable person, or those caring for them, to persuade them not to leave their own home voluntarily or by not facilitating this.
- Cessation of previous financial and welfare arrangements.
If you regularly withdrew money on behalf of the vulnerable person in order to go shopping for them, pay their carers in person, or give them cash to enable them to settle small expenses, you may have to rethink how you will manage this aspect of their lives.
Likewise, a health & welfare attorney will have to think about alternative arrangements regarding regular visits, or trips to medical appointments or just simple pleasures like taking the vulnerable person out for lunch.
In all cases, although attorneys and deputies will, no doubt, be considering how to continue fulfilling their role during lockdown, they must remain mindful that their obligations have not changed and that they are still expected to follow the Mental Capacity Act 2005 and The Code of Practice.
The MCA 2005 and The Code of Practice
Attorneys’ and deputies’ main obligations remain unchanged. They must:
- always act in the vulnerable person’s best interests when making decisions;
- owe a fiduciary duty to the person they are responsible for and are not to profit personally from their position;
- keep the vulnerable person’s finances separate from their own;
- keep an accurate record of all the financial decisions being made and keep receipts of purchases made or expenses paid;
- look after the vulnerable person’s finances with even more care than their own.
What a Property & Affairs Attorney or Deputy should consider during lockdown
If you are used to having a more “hands on” role, you will need to think about how you can manage the vulnerable person’s affairs and financial obligations which will certainly require a pragmatic, and probably creative, approach.
- The lockdown is a good opportunity to review the vulnerable person’s finances. In this day and age, it is likely that most regular income (such as pension, benefits, etc) is paid by standing order, and outgoings (such as utility bills, telephone bills, insurance, etc) by direct debit. In the absence of such arrangements, it is worth contacting those service providers to set up automatic payment / receipt of monies to ensure continuity of services and to double check that the vulnerable person will continue to receive their income.
- As mentioned above, your obligations will not have changed as a result of the lockdown so you must continue to keep the vulnerable person’s finances separate from your own, not least to avoid any accusation that you might be benefiting from your position.
- However, there may be situations where you are unable to keep finances separate. For example, it might be easier for you to use your own money in the short term to cover immediate expenses, particularly if you cannot access the vulnerable person’s funds remotely. If this happens, you must keep a clear record of these transactions as the Office of the Public Guardian (OPG) is likely to question them when you subsequently reimburse yourself from the vulnerable person’s estate.
- There may be circumstances where you may feel justified in using the vulnerable person’s funds for your personal expenses in the short term, particularly if you are facing financial hardship as a result of the lockdown. If this is the case, you must seek permission of the Court of Protection first as the law does NOT allow you to use a vulnerable person’s money for your personal benefit. This amounts to a breach of your fiduciary duty.
- In brief, despite the national crisis we are facing, it is important that you do not consider the vulnerable person’s finances as an extension of your own, however difficult your financial circumstances.
Property & Affairs Attorneys and Deputies: frequently asked questions
- Q. I regularly shop for a vulnerable person and drop it off in person. What can I do now?
- A. If you are already registered with the bank as the authorised signatory, switch to online shopping using the vulnerable person’s funds and get the goods delivered directly to them. Keep receipts as you do when you normally go the supermarket for them.
If you are not an authorised signatory, you may have to use your own funds to pay for the goods. However, keep your shopping transaction separate from that of the vulnerable person’s and keep a receipt of the amount you have spent on the vulnerable person’s shopping so you can claim it later.
- Q. How do I pay the carers?
- A. Under normal circumstances, it is likely that you would normally pay the care agency or care home directly. However, where carers visit a vulnerable person at home and expect to be paid in person after every shift, you will need to arrange to pay them by bank transfer. If you do not bank online, you may have to use your own funds but ask for a receipt so that you can claim the amount back.
- Q. How can I make sure the vulnerable person has sufficient cash in case of emergency or to pay for necessities?
- A. Although not ideal, consider an arrangement with the vulnerable person’s regular carer or neighbour (or someone trustworthy) to whom you can transfer funds to enable them to make small payments and / or shop for necessities. Make sure you record this financial decision and they give you receipts to ensure the funds are being used for the benefit of the vulnerable person. Do not take up offers of help from anyone you do not know or do not trust.
What a Health & Welfare Attorney or Deputy should consider during lockdown
You can discuss the vulnerable person’s welfare with their carers or the care home by telephone without needing to see them in person. Clearly this is no substitute for checking on someone in person. However, social distancing measures have made this difficult and many care homes are restricting visitors.
Health & Welfare Attorneys and Deputies: frequently asked questions
- Q: How can I check on a vulnerable person for whom I am responsible to ensure they are OK?
- A: If they are in a care home, ask the care home manager to provide regular updates and arrange for regular video calls to assure yourself that they are being well looked after. Arrange to have regular catch ups remotely with the care home regarding care, medication, etc if a care plan is not already in place.
- Q. How can I ensure the vulnerable person will be properly cared for
- A. If the vulnerable person is in their own home, keep in touch with the carers and check that they are still looking after them and they are following the national guidelines and equipped to provide care in the current situation. You could also ask them to arrange for a video call so you can see and speak to the vulnerable person directly.
As a cautionary note, it is worth having a back-up plan in case the carers are withdrawn in the event of the agency going out of business as a result of cash flow problems caused by the current economic situation.
- Q. Can I take a vulnerable person to their medical appointments?
- A. Although social visits are not allowed under the new Regulations, essential trips are allowed. A trip to a hospital or surgery with a vulnerable is likely to be seen as being essential and reasonable.
Finally, BE VIGILANT
Although we are all facing a situation that none of us has ever experienced before, placing considerable strain on both our personal and professional lives, it remains critical that, as someone responsible for an individual classified as vulnerable, you exercise extra vigilance to ensure they do not fall victim to financial abuse or neglect.
There are many reports of unscrupulous people taking advantage of the situation by, for example, volunteering to go shopping for individuals and disappearing with the money. It is important that you only put arrangements in place with people you trust. You must also carry out regular checks of the vulnerable person’s bank statements to detect any unusual transactions as accessing bank and building society accounts is fertile territory for scammers. Contact the bank immediately if you suspect any transaction may be fraudulent. Beware of anyone contacting either the vulnerable person - or you - about changing an existing financial arrangement with, for example, the care home or utility providers. Verify and make sure the source of communication is legitimate.
As an attorney or deputy, the role you fulfil in looking after a vulnerable individual is vital. You are responsible for making decisions on behalf of someone who cannot make them for themselves and it is not a role that you can delegate to anyone else. Given the economic hardship that many may face in the current crisis, there is a danger that your priorities may get distorted. Nonetheless, although some flexibility will be tolerated during the lockdown, you must not lose sight of the fact your duties are such that there is no room for manoeuvre and you must comply with your legal obligations.