Helping a loved one be protected from undue influence

Seeing a parent, spouse or other loved one becoming more vulnerable can be difficult, particularly if you are concerned about their ability to manage their finances or make decisions in the future. It can be especially worrying, if you suspect someone else is in a position where they could be taking advantage of them.

A lasting power of attorney (LPA) can provide reassurance, as it allows your loved one to appoint someone they trust to make decisions on their behalf if they later lose mental capacity.

However, you cannot make an LPA for someone else. The instructions to a solicitor to prepare an LPA must come from the person who wishes to make it, rather than from a family member on their behalf.

If you are seeing a decline in someone’s health, it is important to have a conversation early, while they still have the mental capacity to decide who they want to act for them and what safeguards they would like in place.

Recognising when a loved one may need an LPA

You may notice that a parent or other loved one is beginning to struggle with managing finances, paperwork (online or offline), or in making important decisions. They may be missing payments, finding correspondence difficult to deal with, or becoming less confident in making decisions that they previously handled without difficulty.

Perhaps they are becoming increasingly reliant on you, or others, to carry out online transactions on their behalf. This can create practical and security concerns, particularly if they are sharing passwords or allowing someone else to access their accounts.

Becoming more vulnerable does not necessarily mean that someone has lost mental capacity. If they are still able to make their own decisions, they are entitled to act as they choose – however much you may dislike or disagree with their decisions.

If you are aware that their mental health is declining, they may still have sufficient mental capacity to be able to put an LPA in place. The LPA includes a section for a certificate provider to sign, confirming that the person making the LPA understands what they are doing and is not being pressured or unduly influenced. A solicitor, GP or another appropriate person can act as the certificate provider. Where there is any uncertainty about capacity, a GP or other medical professional may be asked to provide an assessment or opinion before the LPA is completed.

What is a Lasting Power of Attorney?

An LPA is a legal document that allows a person to appoint one or more attorneys to make decisions on their behalf. There are two types:

• a property and financial affairs LPA, covering matters such as bank accounts, investments and property; and
• a health and welfare LPA, covering decisions about matters such as care, medical treatment and where someone lives.

An LPA must be made while the person has mental capacity. If mental capacity has already been lost, it is too late to make an LPA and family members may instead need to consider applying to the Court of Protection for a deputyship order.

How should you approach the conversation?

Talking to a loved one about making an LPA needs a sensitive approach. You could share the Government information on lasting powers of attorneys, and suggest meeting the family solicitor to discuss the pros and cons, to keep it neutral.

The instructions to a solicitor to prepare an LPA must come from the person who wishes to make it, rather than from a family member on their behalf. The solicitor’s role is to act independently for the person making the LPA, ensuring they understand what they are signing and are making their own decision about who to appoint.

It is also important to be alert to the possibility of undue influence from outside. In some circumstances, the person exerting pressure on a vulnerable individual to make an LPA may be the very person seeking to be appointed as their attorney. 

If a solicitor has concerns that someone is being pressured to make an LPA, they should speak to the person privately and make sure the instructions are genuinely their own. The solicitor may ask questions about their understanding of the LPA and why they have chosen particular attorneys. If the concerns cannot be resolved, the solicitor should not proceed with the LPA.

If someone is becoming increasingly vulnerable but still has mental capacity, having the conversation sooner rather than later can help ensure that they have the opportunity to make their own decision, free from pressure.

What if I have concerns that they are being influenced or exploited?

Sometimes family members may be concerned that a vulnerable person is being pressured into making decisions they would not otherwise make. These concerns should be taken seriously, particularly where there are questions about the person’s mental capacity or whether their decision is genuinely their own.

Where concerns arise before an LPA is made, taking professional advice can help ensure that the person’s wishes are properly understood and that appropriate safeguards are considered.

If there are serious concerns about coercion, abuse or exploitation, it may also be appropriate to seek advice from adult safeguarding services or other relevant authorities. Where there is suspected criminal activity or an immediate risk of harm, the police may also need to be contacted.

What if I have concerns about an attorney?

Where there are concerns about a person’s mental capacity, or where an LPA has already been made and there are concerns about an attorney’s conduct, the Office of the Public Guardian or, where appropriate, the Court of Protection may have a role where the person lacks mental capacity.

Why act now?

Without an LPA, a family member cannot simply step in and manage someone's financial affairs if they lose capacity. A deputyship application may be required, which can be more time-consuming and costly, and does not give the same opportunity for the individual to choose who will act for them.

Making an LPA while someone has sufficient mental capacity is therefore an important part of planning for the future. It allows a person to decide who they trust, set out their instructions and wishes, and put appropriate arrangements in place before they are needed.

How we can help

We can advise individuals and families on making LPAs, choosing suitable attorneys and putting appropriate safeguards in place. Where there are concerns about vulnerability, capacity or undue influence, we can also provide early advice to help ensure that the individual’s wishes remain at the centre of the process.

For advice about making an LPA or putting in place safeguards to protect a loved one,  please contact a legal adviser in our Private Client team at one of our offices – York, Selby, Malton or Pickering.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.