Vulnerable people and Capacity issues

In this article we aim to explain why an individual may be vulnerable to harm or abuse, what to look out for and action you can look to take.

Are you aware of someone you know who may be a vulnerable person or have capacity issues? They may be a family member, friend or work colleague or someone you advise due to the nature of your work. Do you know what makes a person vulnerable?

Even if you don’t think you know a vulnerable person or a person who may have capacity issues, read our blog to understand who a vulnerable person is and the warning signs to watch out which may flag that they are being neglected or even worse, abused in some way.

A ‘vulnerable adult’ “is or may be in need of community care services by reason of mental or other disability, age or illness; and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation” (1997 Consultation Paper Who decides? – Lord Chancellor’s Department)

‘Mental capacity’ means a person’s ability to make their own choices and decisions. Under UK law, a person’s capacity is judged according to the specific decision to be made, so a person may have sufficient capacity to make simple decision but not more complicated ones.

A person lacks capacity to make a decision if they have an ‘impairment of or disturbance in the function of their mind or brain’ (either temporary or permanent), as a result they cannot do one or more of the following:

• Understand the information relating to his particular decision (including its benefits and risks)
• Retain the information for long enough to make this decision
• Weigh up the information involved in making this decision
• Communicate their decision in any way

If in any doubt, you must assume the person does have capacity but if relevant, i.e. due to the nature of the advice you are providing them with during the course of work you are carrying out for them, consider a back up such as a doctors report so that you have shown that you have checked on any medical grounds.

There are alerts to capacity concerns that you can look out for, these include:

• Difficulty with recall or memory loss
• Communication difficulties
• Problems with simple calculations
• Disorientation
• Known conditions – e.g. Alzheimer’s
• Needs to be accompanied or does not answer or is not given chance to answer questions
• Limited ability to repeat or recall and ask questions
• Inconsistent

What is abuse and signs of abuse in an adult?

According to the source – OPG Safeguarding Policy May 2013 - “abuse is a violation of an individual’s human and civil rights by another person or persons. Abuse may consist of a single act or repeated acts…..Abuse can occur in any relationship and may result in significant harm to, or exploitation of, the person subjected to it.”

There are 8 types of abuse to look out for if you are concerned about a person:

• Physical – this could be hitting, slapping, pushing, kicking, misuse of medication, restraint or inappropriate sanctions
• Financial – this can include failure to access benefits, theft, fraud, exploitation, undue pressure (e.g. Will writing, gifts or other financial transactions), overcharging or carrying out unnecessary work, misuse or misappropriation of assets of benefits.
• Sexual abuse
• Psychological/emotional abuse – this can be emotional abuse, threats of harm or abandonment, blaming, controlling, intimidation, coercion, harassment, verbal abuse, isolation or withdrawal from services or support networks
• Neglect and acts of omission – ignoring physical health needs, failure to access health, social or educational services, withholding medication or food
• Discriminatory abuse
• Signs of Institutional abuse
• Abuse of trust
  • A relationship of trust is one in which one person is in a position of power or influence over another because of their work of the nature of the activity.
  • Someone in a position of power/authority who uses their position to the detriment of the person at risk up may be dependent on them for care etc.

Something to be aware of is looking out for alerts to financial abuse of a person, which is the main form of abuse recorded by the OPG. This form of abuse can be in isolation but can also be done along with other forms of abuse.

Indicators to look out for are:

• Change in living conditions/physical appearance
• Possessions sold
• Inability to pay bills and/or an unexplained shortage of money
• Unexplained withdrawals from accounts
• Unexplained loss of financial documents
• Cut off from family/friends/social network
• Carer’s enhanced lifestyle
• Sudden changes in bank account
• Addition of authorised signatories on accounts/cards
• Changes in patterns of cash withdrawal or significant numbers of withdrawals
• Sudden or unexpected changes to Will or other financial documents

Alerts to other forms of abuse you can look out for are:

• Records of previous or suspected abuse
• Previous abuse to other family members
• Presence of family tension or conflict
• Predisposing factors:
  • Age 75+
  • Female
  • Organic brain injury, cognitive impairment
  • Depression
  • Recent loss of a spouse
  • Social isolation or living alone

How to prevent abuse in vulnerable adults

Look out for the warning signs and speak to someone you trust about your concerns. If you can put measures in place to have the person checked and assessed this can help with further measures that can be put in place to protect them should abuse be found.

Reporting abuse of vulnerable adults

If you believe the person is in immediate danger, you should call the police on 999.

If the danger is not immediate, speak to close family or family adviser for the person (e.g. solicitor or financial adviser) to make sure your concerns are flagged and taken on board to be actioned by that person with the relevant authorities. You can also report concerns to the Safeguarding Adults Board at your Local Authority.

No-one knows what the future holds and it’s often hard to think about a time when you may need to select someone to manage your personal affairs. Nevertheless, planning ahead for such a situation can save a lot of issues later on.

At Crombie Wilkinson Solicitors, we regularly deal with Lasting Power of Attorney (LPA) cases and our clients choose us to assist with the process. If, for example, you are physically or mentally incapable of taking care of your finances, you may choose to elect a family member as your attorney to process payments on your behalf. It may be that you need someone to decide where you should live or what medical treatment you should receive; your LPA will decide this too.

Lasting Powers of Attorney can help you plan how your health, wellbeing and financial affairs will be looked after.

They allow you to plan in advance:

• the decisions you want to be made on your behalf if you lose capacity to make them yourself
• the people you want to make these decisions
• how you want the people to make these decisions

Maintaining control over decisions made for you because:

• has to be registered with the OPG before it can be used
• you choose who gets told about your Lasting Power of Attorney when it is registered (so they have an opportunity to raise concerns)
• your signature and the signatures of your chosen attorneys must be witnessed
• your attorneys must follow the Code of Practice of the Mental Capacity Act 2005 and act in your best interests
• the Office of the Public Guardian provides helpful support and advice

When can they be used?

EPAs

• As soon as signed by Donor and Attorneys provided no restrictions
• Once loss of capacity only in emergency until registered

LPAs

• Only after registered (and if PW – only if Donor incapable)

Find out more about the expertise and advice we can offer here https://www.crombiewilkinson.co.uk/site/personal/power-of-attorney-solicitors/