Litigation
If any form of litigation is contemplated, and you do not consider that the adult has capacity to instruct you, should consult with family members to see if an appropriate individual is able to act as a litigation friend.For more information see our guidance on meeting the needs of vulnerable clientsand working with clients who may lack mental capacity.
If there is no family or no one who does not present a potential conflict of interest with the client, for example if the relative is the suspected abuser, then you should contact the Official Solicitor. The Official Solicitor can be appointed as litigation friend, if proceedings need to be taken, although note that the Official Solicitor will only agree to be appointed if there is security for any legal costs that will be incurred.
Deputyship
If the client has assets that need protecting and lacks capacity to manage their assets, an application should be made to the Court of Protection for a deputy to be appointed.
The court can give wide ranging powers to the deputy to manage the client's bank accounts, sell property, and manage other assets.
If there is a need for a court order appointing a deputy, then if no suitable individual can be found or no relative is willing to act as deputy, or you do not provide such a service, then one option would be to contact the local authority's adult care solicitor to ask whether the local authority deputyship team is willing to act as deputy.
Failing this, an application can be made for a 'panel deputy' to be appointed. A panel deputy is a member of an approved list of deputies (mostly solicitors) with specialist knowledge of the Mental Capacity Act 2005.
A list of panel deputies can be found on the GOV.UK website, and the Court of Protection has access to a panel of deputies who may be called on where there is no-one else willing or able to take on the role of deputy.
If you're applying for a deputy to be appointed, you should also consider whether it is appropriate for an application to be made for a statutory will.
Appointeeship
If a client receives a state pension and/or benefits, an application can be made to the DWP for a suitable person to be appointed as the appointee of the client's benefits if:
- the client does not have capacity to manage them any longer, or
- there are concerns that they are being mismanaged
If there is no suitable person, then the local authority may agree to be appointed as appointee of the benefits and pension.
If you have concerns that the benefits are being mismanaged, then you should consider reporting these concerns to the DWP which will investigate whether or not the current appointee is a suitable person to continue to act as appointee.
How to report these concerns will depend upon the benefit the person receives. See the government’s guidance on becoming an appointee for someone claiming benefits.
Find out how to report benefit fraud
The role of the local authority
Local authorities have statutory safeguarding duties in relation to adults in their area at risk of abuse, including financial abuse.
The statutory framework, and the precise criteria for investigation, differs depending upon whether the adult is in England (where the framework is the Care Act 2014) or Wales (where it is the Social Services and Well-being (Wales) Act 2014). However, in both cases, the local authority must either itself or through others make such enquiries as are necessary to decide whether action should be taken, and, if so, by whom.
Each local authority has adult safeguarding officers who may also be known as (vulnerable) adult protection officers, with responsibility to involve multi-agency teams and manage cases referred to them.
The precise scope of the enquiry, who leads it and its nature, and how long it takes, will depend on the particular circ*mstances. The local authority is then under a duty to decide what – if any – further action is to be taken.
There is detailed statutory guidance applying to local authorities in the discharge of their safeguarding duties for England and Wales.There will be statutory guidance under the Domestic Abuse Act 2021, which sets out local authorities responsibilities for safeguarding and supporting victims of domestic abuse. The draft guidance is currently available.
It is important that the adult's capacity to make relevant decisions, such as decisions to protect themselves against abuse, and capacity to manage their finances and assets, is assessed as soon as possible to determine which legal options are available, such as using the Court of Protection.
Abuse and neglect by legal professionals
If you suspect abuse or neglect by another legal professional, you should contact the SRA professional ethics helpline for guidance.
Criminal offences
Where you suspect an appointee is not using their powers for the benefit of the vulnerable adult then you should notify the DWP.
If you suspect a criminal offence may be taking place, contact your local authority adult safeguarding team or the police, phoning the number 101.
However, the police may ask that no action be taken while they investigate and gather evidence against the perpetrator before the perpetrator realises that the police are investigating.
The difficulty with this approach is that you may have a duty of care to apply for deputyship in the interim to protect the assets from being further dissipated by the perpetrator. If the perpetrator is a deputy or attorney, the OPG will want to launch an investigation.
Generally local authority solicitors will cooperate with the police. You should make clear that they must take interim steps to apply to the Court of Protection if there are sufficient assets to make it worthwhile appointing a deputyship. If not, they must notify the DWP where necessary to stop paying the adult's benefits to the perpetrator as the appointee.
Local authorities may also be able to assist, by considering what protective action might be needed in cases of financial abuse. This action can include applying for interim deputyship orders or a single order.
