60-second interview: Sheree Green

What are the main challenges for advisers with vulnerable clients?

We have been very focused on the issue of capacity, since the implementation of the Mental Capacity Act 2005, and ensuring that our client has the requisite mental capacity for the specific transaction being contemplated. In doing so, we may overlook the additional risk of undue influence and the need to be confident that, as well as having the requisite capacity, our client is actually making that decision as a result of free and informed thought.

When somebody is looking to appoint an attorney under a lasting power of attorney, for example, they tend to look to their family members to fulfil that role. It is a sad fact that, statistically, where financial abuse occurs, the instigator is most likely to be the adult son or daughter of the individual.

What do you see as the key progress made since the Mental Capacity Act came into force?

One aspect that particularly impresses me is the principle of trying to support a client to make a decision for themselves. I've seen that working well in care homes, and in supported living arrangements. Obviously, it takes more time, effort and creativity on the part of staff, but the outcome for the individual service users can be a much improved quality of life.

In the recent case of Re GM, the main issue before the court was the retrospective approval of gifts made by and expenses received by two court deputies. However, running behind the scenes was an argument, which took up a lot of court time, over GM not having a choice in relation to her own clothing.

The care home management and staff were clearly aware of the importance of supporting GM to make those decisions herself, but this was an aspect of GM's life that the deputies took control over. It was useful that it was pointed out during the proceedings that the deputies had failed in their duties in that respect.

The seemingly little things that often don't form the substance of any court proceedings can really make a difference to a person's day-to-day experience when they are in the care of others.

What could be improved?

The banking guidelines recently issued by the British Bankers' Association are an incredibly welcome step in educating and supporting bank staff in dealing with financial transactions for a customer with capacity issues.

There is a real challenge, though, to provide services for customers with fluctuating capacity, who may have good days and bad days. On a good day, they are entitled to make the decision they have the capacity to make. Capacity is, after all, time specific and decision-specific. So the existence of a deputyship order or a registered lasting power of attorney should not disenfranchise a person or prevent an individual from making any decisions that they can make themselves.

For example, I'm a deputy for a lady with dementia, who has moved into residential care. She has the necessary mental capacity to manage small sums of money herself and so could operate her current account with support. But once we had registered the deputyship order, the bank would not allow her to continue using her usual current account. They have helpfully allowed me to set up a separate 'living expenses' account for which she has a card and a new pin number. So my client now has the freedom again to go into the supermarket and the bank with her care worker. I'm balancing the risks with the need to support her in retaining some control. But it's not been smooth sailing. It took several weeks for the bank to sort this out. I believe it would be useful if banks would engage further with the Office of the Public Guardian over the need to iron out these practical issues.

My experience with banks has been mixed, however. I agreed on behalf of another deputyship client that he can go into his bank five times a week to collect £10 in cash from the counter staff. The client had difficulty managing more than £10 a day, but he wants to be able to buy his cigarettes, and other sundries, and he prefers to have the freedom to go into his own bank rather than have cash released to him by his support team. His bank has been fantastic. The staff know him, and should he go in more than five times in any week, they will gently remind him to come back the following week. Over and above this, the bank staff recently contacted me to advise that they not seen my client for a while and they were concerned about his well-being.

Do you think the online LPA facility is a positive step?

On the whole I believe it is a good step, because it will raise the profile and usefulness of this important document, and increase access to powers of attorney for those unable to afford to instruct a solicitor to act on their behalf. I think it will be interesting to see how the risk issues are managed. If you meet an adviser to explore the reasons behind making a power of attorney and the choice of attorney, there are safeguards that are not available to a person sitting in front of their home computer to complete the forms.

I think it will be interesting to see how advice for both donors and attorneys, produced by the Office of the Public Guardian, is developed and brought more into the public domain.

Often attorneys get overlooked or sidelined in the process of making a lasting power of attorney. Where solicitors are involved, their role is to act for the donor generally. Who then is acting for the attorney? They are generally unlikely to seek their own independent legal advice, and yet their responsibilities and duties are significant and can be onerous. Their role is similar to a trustee.

They need to be aware and reminded that they cannot do whatever they like with the donor's property and indeed, that they cannot just do whatever the donor would do, had they retained capacity.

Is it part of adviser's role to remind clients to look beyond family?

The most important decision a donor can make is their choice of attorney. If a donor has a number of children, it makes sense to explore the benefits of a joint and several appointment(s). Even when just one child is actively involved in the day-to-day management of their parent's finances, as well as being there to offer support and wisdom, the co-attorneys can provide something of a safety net, incorporating an element of accountability.

It is also important to discuss delicate issues such as the financial acumen and stability of the proposed attorneys, and the need to consider carrying out a bankruptcy search against them. Family members might be too embarrassed to share information about their own financial difficulties, and the donor may be completely unaware of any problem.

Do you have to adopt a cynical mindset?

Not cynical, just enquiring. If you're interested in the client, you want to know why they're making the decision they're planning to make, and what's brought them to your door. This is particularly important, for example, if it's a client you've never met before or one who has recently changed solicitors.

What's your reaction to the recent 'bad press' about the Court of Protection?

I am disappointed when I see the critical headlines in the national press, but I understand why individuals can become frustrated. In response to the criticism that it's a "secret" court, my view is it is a private court. Why should details of my financial affairs be made public simply because I lack the capacity to manage them for myself, for example?

My own frustrations with the Court of Protection tend to be around waiting times - although my work falls predominantly under the property and financial affairs jurisdiction of the court. On the health and welfare side, where there is an urgent issue, the court appears to be able to respond very quickly. In all honesty, in my experience, the judiciary and the professionals work very hard in trying to reach a decision that is in the best interests of the individual.

I do appreciate the concerns over the costs involved in any Court of Protection proceedings. I think the lesson there is that it's in everybody's interest to make a lasting power of attorney (LPA), hopefully to avoid the court becoming involved. As lasting powers of attorney are now being digitalised, it is far easier than ever for someone to make an LPA.

What are the biggest lessons you've learnt over your nearly 20 years?

Not to accept a client's instructions at face value always, but to be prepared to take a little time to ask questions that tease out the rationale behind the client's decision and enable you to understand something of the wider family circumstances. Family relationships are not always as straightforward as they might appear.

This approach does take time, though, and, in practice generally, if it takes longer, it is likely to cost the client rather more in fees. Clients love fixed fees, understandably, because they offer transparency and certainty. When working with older clients or clients who potentially have mental capacity issues, you may have to go the extra mile. It is interesting to reflect on whether it is fair to charge a person more for a piece of work because, as result of any age-related or capacity-related issues, the work takes longer than usual. I have heard it said that there may be an element of vocation in working, as a professional, with certain client groups.

Sheree Green is senior associate at Anthony Collins Solicitors

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