Balancing act

With the increasing digitisation of legal services and reforms to powers of attorney on the horizon, Dan Bindman speaks to CILEX private client specialists about the challenges involved in advising elderly clients, the importance of safeguarding and the need for modernisation.

Advising elderly clients can require sensitivity and kindness as well as the steel to tackle situations where relatives push to intervene inappropriately. The line between legally protecting older people and improving public access to the powers of attorney necessary for their care is a delicate one.

It is expected there will be around one million people in the UK suffering with dementia by 2024. As more of us live well into old age, private client lawyers are adapting to the needs of an elderly client base against a backdrop of increased digitisation of legal services. The move towards digital in both will-writing and Court of Protection matters appears unstoppable.

Ultimately elderly people need care, and kindly neighbours and relatives are usually best placed to give it. Only when the individuals providing them with support cannot be trusted to manage their affairs impartially must the law step in. More often than not, CILEX practitioners report, the problem is public education as to what can and cannot be done with the money entrusted to them.

Meanwhile, the political direction of travel seems to be that the relatively small number of cases involving undue influence will have to be dealt with retrospectively, in order that the vast majority of activities concerning care of the elderly can proceed unhindered.

Chartered Legal Executives involved in this area range from those called in to deal with difficult cases – who see close up the inadequacies of current measures designed to protect the assets of older people from those unduly keen to control them – to practitioners who are more philosophical about the need for broad public access to the legal tools needed for elder care.

What all agree on is that a balance must be struck between the competing needs of access and protection.

They also agree this is a stimulating area of law in which to practise, that is fulfilling when the role is appreciated, yet frustrating when officialdom is so slow as to make life difficult for clients and practitioners.

Adapting to the pandemic

The pandemic has made practice especially difficult, because for the most part clients were especially vulnerable to Covid-19 due to their advanced age.

Using Zoom and other types of video conferencing has raised issues of privacy and influence. Chartered Legal Executive Jonathan Edwards, who works in the Shrewsbury and Telford offices of Terry Jones Solicitors, says: “It has been challenging, especially when a relative has been assisting in setting up the call. Having said that, there are also elderly clients in their 80s and even 90s who are perfectly conversant with technology.”

"According to Solicitors for the Elderly, fewer than 10% of people actually have an LPA" 

He adds: “You can take a view on it sometimes, when it’s not contentious and all the children are involved. You can usually get a sense of when people are trying their best to assist the parents with something.”

To make things easier for practitioners during the pandemic, the Land Registry said it would accept copies of lasting powers of attorney (LPA) certified by CILEX members, who in fact were omitted from section 3 of the Power of Attorney Act 1971 preventing them from being allowed to certify copy documents; an anomaly the Ministry of Justice will hopefully rectify permanently when suitable primary legislation appears.

The issue is urgent. According to Solicitors for the Elderly, which has many Chartered Legal Executives among its 1,400 lawyer members, fewer than 10% of people actually have an LPA. The Ministry of Justice and the Office of the Public Guardian (OPG) are currently devising plans to modernise LPAs following a consultation last year. These include increasing access to powers of attorney online by, for instance, integrating the process with lawyers’ case management systems, and creating an urgent track for LPAs that need to be registered quickly. Going digital will deliver a real step-change, given that the OPG received 19 million sheets of paper in 2019-20.

In terms of signing wills, soon after the pandemic was declared, Parliament amended the Wills Act 1837 to make it possible to witness their signing remotely, such as by Zoom or FaceTime. This change was extended for two years in January 2022.

Reforming wills

The Law Commission is finalising its proposals to reform the law on wills which it says will take account of the changes in technology and society that have occurred since the Victorian era, when the Wills Act 1837 was passed.

These include changing the test for capacity to incorporate modern understanding of conditions like dementia and providing statutory guidance for doctors and others assessing whether a person has the mental capacity to make a will. It has also mentioned new rules to protect people from being unduly influenced but has not yet elaborated on them.

An unfortunate effect of the pandemic, according to STEP – formerly known as the Society of Trust and Estate Practitioners – was that the number of inheritance disputes climbed during 2020, with individuals claiming to be entitled to a share, or larger share, of a deceased's estate. The cause is not known but possible reasons include financial hardship suffered by people under lockdown motivating them to seek a larger share of the inheritance and the growth in estates due to rising house prices.

Chartered Legal Executive Ian Hunt, a non-executive director of CILEX who specialises entirely in elderly clients at his boutique firm in Devon, said CILEX members were particularly well-equipped to deal with “curve-balls” like the one thrown by the pandemic, requiring extra flexibility in the course of daily practice, “because of the practical nature of our training”.

In the case of his firm, working in a converted dairy meant it was easy to move stud walls around to improve safety. When he had to visit clients at home to take instructions, being inventive was sometimes necessary.

“We would stand in clients’ gardens and talk to them through a fanlight window in their living room or something. Essentially what we wanted them to do was to show us that there was nobody else present in that room.

“Secondly, if they were struggling with hearing, I'd ring them up from my mobile phone and talk them through the documents. In terms of signing them, we went in with a clipboard and mask and gloves and everything else.

“Or we went into people's conservatories. In another case, we stood in the driveway while she sat in the garage and signed. On each occasion, if it was anything out of the ordinary, we photographed it to show how the signing was set up.”

For the most part, he reports, “elderly clients did not cope particularly well with the transition to not seeing people [face to face]. One of the biggest challenges was getting elderly clients access to their money remotely. If powers of attorney [were not] in place, they were trusting people with their bank cards in order to do their shopping for them. I think there was a great potential for possible abuse”.

Undue influence

Mr Hunt deals regularly with cases of undue influence and is frequently referred difficult cases involving elder abuse by his local social services. He reports that the OPG has greatly increased the number of investigations into potential abuse. His response to the recent Law Commission reform proposals was that removing the wet signature from an application “would increase the amount of potential abuse”.

Lots of cases involve “well-meaning neighbours”

A lot of cases, he says, involve “well-meaning neighbours” who discover the elderly people next door have a lot of money.

“The next thing [you hear] is ‘oh look, the neighbours have got the power of attorney and they've got a new car and they've been on holiday’.”

He is not the only CILEX practitioner who is wary of interfering neighbours and relatives. Kim Boylett, who has her own firm, Boyletts Law in Hertfordshire, says the pandemic often gave rise to issues.

Sometimes the problem was not so much abuse as ignorance of what was acceptable. Sometimes, children would take something from their parent’s house and say ‘well, I would have inherited that anyway and my dad didn’t need it’.

She says: “They just absolutely do not understand why that’s not right and that it’s not their money. Even if their loved one is sitting in a care home with no capacity, it’s their money until they die and can only be used to enhance that person’s life.”

At the other extreme, she describes an elderly lady who came to see her with her daughter and son-in-law. They sat around and had a pleasant conversation. “But when I asked to speak with mum on her own, they became angry.

“The client said to me: ‘I do not want this LPA, but please don’t tell them I said that. Tell them I didn’t pass the capacity test. If my daughter becomes my attorney she will sit me in the corner of the room, not at the dining table with the family. But I can’t fall out with her because I’m dependent on her to get out and about.’ It breaks your heart sometimes.”

Ms Boylett said it was vital that people have powers of attorney and “the legal world needs to progress to the technical and digital age”. Not, however, to the detriment of elderly people, she stressed, “because we must always keep those safeguards, as frustrating and time-consuming as they are”.

Layering safeguards

The need for a balance between safeguards and simple, low-cost access for people to put powers of attorney in place justifies a certain amount of risk, suggests David Isbister, an experienced Chartered Legal Executive at central London firm Belvederes. But there’s a good argument for layering the safeguards to match the risk involved.

He asks: “How do you protect the vulnerable while making the whole process a lot easier for everyone else? If you look at wills, challenging wills on the grounds of undue influence, knowledge and approval and capacity is a growing area.

“Unless you make it a regulated activity – and the government [has made it clear it] will never do that – the simple answer is you’re not going to get the protection some people want, unfortunately. Because there will always be people out there that will abuse a system to take advantage of the vulnerable.

“So it’s simply a case of making the process easier and just deal with the problems as and when they arise, which is not very good for the vulnerable person who is being taken advantage of.”

"There will always be people out there that will abuse a system to take advantage of the vulnerable" 

His solution is public education about LPAs to clarify the duties of attorneys. Meanwhile, it should be possible for the donor giving a power of attorney to restrict it at the start. “So, for example, ‘my attorney cannot sell my property, check that box. If they want to sell my property, they have to apply to the Court of Protection for a deputy. Yes, it comes at a cost and a delay, but it does afford a level of protection for the client. So there could be a standard protective restrictions tick box.”

He sums up the idea: “The ability to access up to £3,000, facilitated online with a £50 fee. The ability to withdraw up to £10,000 limited to lawyers for £150, or the ability for full access to all finances including sale of the property, but you must use a professional deputy or lawyer as attorney.”

Chartered Legal Executive Claire King, head of Court of Protection and a legal director at Clarion in Leeds, wholeheartedly agrees that LPAs need modernising, and that while the certificate provider requirement should be tightened up, they should nevertheless “be much easier to complete and much more accessible in terms of being able to do them online... because the people who need them often don’t have them because they are just too complex to put in place”.

However, she warns: “A determined child will always find a way around most safeguards and a lengthy document isn’t going to put someone off.”

In general, it is a great idea to layer the protection depending on the level of financial support needed by carers, she suggests. But it might be unworkable in practice because the Court of Protection is “so drastically underfunded” that it can take six months or more to get an order. If money cannot be freed up from a property sale in time, it might threaten a residential care slot.

Time is often of the essence when older people are concerned. “The most important thing is their care needs are met. If capital is tied up in the property for whatever reason, and it cannot be sold for months on end, potentially that person isn’t going to be able to stay in their care placement, or they might need additional care that they can’t access because they don’t have the funds.”