DFA Law


Understanding vulnerability


Rebecca Edmonds Solicitor Wills, Trusts and Estates DFA Law


When considering vulnerability, what immediately comes to mind is a person who lacks mental capacity to manage their own aff airs, perhaps most commonly an elderly client. However, there are many layers to what may make a person vulnerable, not just their capacity or frailty. A person may become vulnerable due to their circum-


stances, such as a bereavement or divorce. T at person may be vulnerable for a period of time, while they navigate their new life. As a professional advisor, we need to take the time


to understand the person’s current circumstances and priorities, to ensure we are safeguarding their decision- making process in preparing their new will or preparing Lasting Powers of Attorney (LPAs) on their behalf. To help safeguard a person’s wishes, there are specifi c


legal tests to follow in respect of preparing these docu- ments, as well as Law Society and Solicitor’s Regulation Authority guidance concerning vulnerable clients.


A person may be vulnerable because they feel over-


whelmed. For example, they may be having to take on the responsibility for a loved one by acting as their attorney under an LPA. T ey may be having to take up their role in an emergency situation, if there has been a sudden loss of mental capacity, for example, due to a road traffi c accident. Added to this, it may be the attorney’s fi rst time of seeking legal advice about this alien concept, and as a result, they may fi nd the process daunting. From more recent enquiries, we are experiencing that


attorneys do not necessarily understand all that is required of them when they sign their declarations as part of the preparation stage of the LPA. It is only once they begin acting that the complexities of the role become apparent, and it is important for the attorney to take professional advice to understand their legal duties. Alarmingly, there is increasing coverage in the media


surrounding fi nancial abuse, to which vulnerability is closely linked. If you turn to online forums and social media groups, the level of misinformation surrounding attorney’s duties (particularly around gifting restrictions) and the rules surrounding care fees is concerning. It appears that attorneys are frequently overstepping the mark and this highlights that professional advisors overseeing the correct execution of the LPA is only the tip of the iceberg. It is the role of the advisor to educate the donor


surrounding their choice of attorney and the types of decision-making powers their attorney will have in order to safeguard against the above. It is important to signpost that an attorney should take advice regarding their role if they are unsure about the duties and obligations expected of them. In reality, it appears that many attorneys are not taking the advice they need, and mismanaging the donor’s funds. T e diffi culty is, LPAs are easy for people to create


themselves by accessing the forms online with no legal advice to guide them about the extensive powers they are conferring on their loved ones. If a person was at a vulnerable point in their lives, and


no professional advice was taken, they could be manipu- lated into making a bad choice of attorney. T e attorney is then in a position to take advantage of the vulnerable person by fi nancially exploiting them via the LPA. If you require any advice or guidance in preparing LPAs,


including advice surrounding the best choice of attorneys, or if you are an attorney and would like help navigating your role and responsibilities, then please get in touch.


Contact Rebecca Edmonds on 01604 625353 or rebecca.edmonds@dfalaw.co.uk or fi nd out more at www.dfalaw.co.uk


ALL THINGS BUSINESS | 50


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