This blog was first published by Lawskills and has been replicated in here, the original article is available on the following link

https://www.lawskills.co.uk/articles/2019/08/safeguarding-in-lpa-administration/

Safeguarding plays a vital role in LPA administration – a case study 

John Smith has a fairly complex estate and has recently had a meeting with his financial adviser, who has asked whether he has a Lasting Power of Attorney (LPA). This isn’t the first time his financial adviser has asked the question and John did recently have a work colleague whose wife lost capacity without an LPA in place; he remembers that trying to sort out all the finances and paperwork was incredibly stressful for his colleague.

So he decides that he not only needs to put an LPA in place; he needs to talk to his preferred attorneys to ensure they understand what they are taking on, and that they have access to all the information they need when the time comes.

John chooses a local law firm, and asks them to draft his LPA. He’s nervous because he’s heard that attorneys can take advantage of their powers – particularly over finances – and he wants to make sure that couldn’t happen in his case. He is concerned about losing control of his finances, and about how to make sure his attorneys follow his wishes when they make decisions.

John’s solicitor talks him through the supervision and safeguarding clauses that could be included in his LPA. They discuss the skills and approach that someone in a safeguarding or supervision role would need, and the responsibilities they would have. They also talk about who John might want to appoint as an attorney, and whether they are willing and able to make that commitment. 

What makes a good safeguarder?

• Someone who you know is trustworthy
• Someone who has good money-management skills
• Someone who is a good decision-maker
• Someone who has the ability to oversee the duties carried out by the attorney
• Someone who can step in quickly if there is an issue or even a crisis
• John decides to appoint his niece as his attorney, but in addition he would like a professional to supervise the decisions of the attorney once he has lost capacity, checking regularly that everything seems to be in order, supporting his niece if she is in need of guidance and pre-authorised to report any safeguarding concerns. The solicitor adds clauses to the LPA that allows for this option including a charging clause.

In order to avoid any doubt about over the potential conflict of confidentiality and safeguarding duties, the solicitor asks John to sign an advance consent for permission to disclose confidential information to safeguard him and his property.  John feels confident that he has an extra layer of security in place which will protect him and his finances when he is most vulnerable. 

Maintaining financial transparency

 John then wants to know how he can be sure his attorney’s actions will be transparent. His solicitor suggests Switchfoot Teams, which several of her clients use successfully. An online system, it allows attorneys and designated individuals to see what financial transactions have taken place on a real-time basis. This is a deterrent to financial abuse and ensures that all actions are transparent at all times. Accounts production can be automated and the accounts default to a chart of accounts in line with OPG deputy return, offering the best practice available from modern personal accounting.  John sets up Switchfoot Teams and invites his solicitor into his ‘Team’.

The solicitor recommends that the following clauses be added to John’s LPA:

‘I direct that my attorneys shall provide access to an online system detailing all of my financial accounts to [insert chosen safeguarder]’

‘I direct that my attorneys shall produce summary accounts including a complete transaction history to [insert chosen safeguarder] on a monthly basis.’

Initially John sets up Switchfoot Teams, providing limited access for his attorney.  In years to come, as his ability to manage his affairs decreases, the access level can be increased for his attorney when she needs to support John in his decisions and when she needs to act, providing for a smooth transition. And John can be confident that, if needed, his appointed safeguarder will be able to step in if anything goes wrong. 

Partnering with Switchfoot Teams

Switchfoot Wealth has partnered with Switchfoot Teams to provide access to the Switchfoot Teams portal which has been developed to meet the needs of attorneys, deputies and trustees.

To find out more, contact us today.

LPA safeguarding in practice – a case study part 2

 This blog was first published by Lawskills and has been replicated here, the original article is available on the following link

https://www.lawskills.co.uk/articles/2019/09/lpa-safeguarding-in-practice-a-case-study/

In our last article, we introduced you to John Smith. John had a complex estate and had decided to put a Lasting Power of Attorney in place so that someone he trusted could look after his finances and act in his best interests if he lost capacity.

Worried about the potential for financial abuse and fraud, however, John spoke both to his financial adviser and to his solicitor about how best to protect his finances. They suggested two things:

• To add a safeguarding clause that appointed a third party to oversee the activities of any attorneys; and
• To use real-time software that reflects any financial transactions and allows attorneys, safeguarders and other professionals to have an overview of John’s financial situation once he has lost capacity.

John accepted this advice and appointed his niece as his attorney, and a professional into a supervision role. He set up the software, added all his bank accounts and other financial information, and uploaded copies of his will, insurance policies and the LPA.

 John invites his niece and solicitor into his ‘Team’ with a restricted online view into his wealth portal. John arranges an annual check in with his solicitor.  Confident that he has put everything in place, John gets on with life.

Losing capacity – the attorney takes over

John has recently lost the capacity to manage his own finances, and now needs the help and support of his attorney.  After the paperwork has been managed to confirm that his attorney can now act on his behalf. John’s niece was in regular touch before he lost capacity and knows what are his financial wishes. She now has access to all his bank and savings accounts, investments and pension funds and needs to manage them correctly in order to ensure that John remains in the best possible financial position whilst also being able to meet any costs associated with his standard of living and general care.

At this point, the supervision and safeguarding clauses that John added to his LPA are actioned. The professional appointed as safeguarder now has oversight of John’s accounts and will be able to see, in real time, if there are any unusual or unexpected transactions taking place. This is particularly applicable if, for example, John’s niece lives at a distance and John has a carer coming into the home. He may give the carer his bank card to buy sundries, and his niece and his safeguarder may be completely unaware that he has done this. But, by having oversight of the accounts, they can see if that card is being abused or used fraudulently and query it immediately with John, his carer and the agency supplying the carer.

John is able to retain use over some of his accounts as there is support and oversight in the background from the attorney with real-time bank feeds updating the information.  This gives confidence to both the attorney and John and is in line with the principle of ‘least restrictive option’ if the alternative is to remove access entirely.

Easy accounts production for attorneys and third parties

Attorneys – particularly family members – are often busy people. At the time of life when they become attorneys they are usually working full-time, raising their own family and perhaps also caring for other older relatives. That means less time to keep an eye on attorneyship finances and less time to put together potentially complicated accounts.

The beauty of Switchfoot Teams – the software system John chose – is that it can produce accounts automatically, using the latest information so that accounts are completely up-to-date and accurate. This satisfies requirements from the Court of Protection and any other sources without attorneys having to spend hours poring over the figures.

So far, so good. But what happens when the appointed attorney can’t manage his or her duties any more? Find out in the final part of our case study.

Partnering with Switchfoot Teams

Switchfoot Wealth has partnered with Switchfoot Teams to provide access to the Switchfoot Teams portal which has been developed to meet the needs of attorneys, deputies and trustees.

To find out more, contact us today.