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CHAPTER FIVE: FINANCIAL ABUSE
Introduction
5.1 This chapter provides a definition of financial abuse, considers the potential signs or indicators of financial abuse, and details the support and protection measures for adults "at risk" of financial abuse.
Definition
5.2 Financial abuse can be defined as:
"The intentional or opportunistic appropriation of the income, capital or property of a vulnerable person through theft, fraud, deception, undue influence or exploitation; including the hoarding of a vulnerable person's resources for future gain which is also a form of exploitation and may be associated with culpable neglect." (Brown, 2003: 7).
Characteristics of financial abuse
5.3 Financial abuse can describe actions of theft, fraud, pressure in connection with wills, property, or money, exploitation, and/or the misuse or misappropriation of money, possessions, benefits and/or property (Brown, 2003; Moriarty, 2005; The City of Edinburgh Council, 2004).
5.4 Financial abuse can be separated into 'planned abuse' or 'opportunistic abuse'. 'Planned financial abuse' is deliberately aimed at an adult, and can involve the abuser occupying a position of trust having replaced other legitimate contacts (Brown, 2003; Brown, Burns, & Wilson, 2003; Tueth, 2000). 'Opportunistic financial abuse' often occurs as a succession of boundary violations over time, with progressively serious consequences (Brown, 2003); for example, the misappropriation of the vulnerable adult's welfare benefits by other members of the household (Royal Pharmaceutical Society of Great Britain, 2005).
5.5 Financial abuse can occur in various settings including care homes, residential care, the adult's own home, and day care centres. For example, there may be arrangements where an "at risk" adult has to pay for a particular service and the client's funds are misused or stolen by a particular individual within the service, or by the agency itself (Brown, 2003).
5.6 It is also important to note that discrimination may have an underlying role in the causation of financial abuse. For example, refugees and asylum seekers are "at risk" of discrimination from employers and landlords as they have limited access to money, possessions, and property and occupy a marginalised position in the job market, which places them "at risk" of financial abuse (Williams, 2004).
5.7 The existing literature, as well as the current legal framework, is predisposed to view financial abuse as a single 'stand-alone' occurrence, rather than an on-going process (Brown, 2003). Care to correctly interpret a situation and the complex dynamics involved with financial abuse is important to deal effectively and accurately with any potential or actual situation; see 3.13.
Support and protection
Primary intervention
5.8 Primary intervention involves identifying "at risk" individuals, screening unsuitable or ineligible individuals with regard to receiverships 12 and power of attorney 13, identifying and establishing a suitable degree of monitoring for "at risk" adults (including accounts and transactions), and putting in place clear standards and guidelines to distinguish and recognise financial abuse (Brown, Burns, & Wilson, 2003; Office of the Public Guardian, 2007).
5.9 Separate OPGs exist in England and Scotland, which have been established under differing statutory powers, with similar but not identical roles and functions. In Scotland, the OPG provides advice and guidance to "at risk" individuals, those who act on their behalf, as well as family relations and health and social care professionals, with the aim of safeguarding the vulnerable adult's financial interests, on issues relating to powers of attorney, welfare powers, access to funds, intervention orders, guardianship, and investigations ( OPG, 2007).
5.10 In England, the OPG is able to appoint receivers to manage the finances of "at risk" individuals (with mental incapacity) under a First General Order. In situations where the "at risk" individual's assets are less than £16,000, a person can be appointed to manage the financial affairs under a Short Order. An EPA can be arranged, where the "at risk" individual (whilst they still have capacity) can appoint someone to manage their financial affairs once they lose capacity. In all these instances, the Court is able to intervene in cases in which it feels the best interests of the "at risk" adult are not best served by the arrangements in place.
5.11 The Adults with Incapacity (Scotland) Act (2000) provides assistance through a series of options to "at risk" adults who may lose or have lost capacity in regards to their financial affairs (Age Concern Scotland, 2003; Mental Welfare Commission for Scotland, 2006b; OPG Scotland, 2007; White, 2004). These options include powers of attorney, access to funds, intervention orders, and guardianship.
5.12 The ASP Act, in particular section 4, enforces the duty on local authorities to inquire about an individual's property, financial affairs, and well-being if the adult is thought to be "at risk". The duties imposed by this Act fall primarily on local authorities, but require other statutory bodies to co-operate with councils in exercising their role. These other bodies include the Mental Welfare Commission for Scotland, the Care Commission, the OPG Scotland, Health Boards, and the police.
5.13 Within residential and nursing care homes, charging for care has raised issues relating to overcharging for care, misappropriation, fraud, etc. (Penhale, 2003). Each residential or nursing home has specific policies and procedures to refer to in greater detail. However, the Adults with Incapacity (Scotland) Act 2000 enables managers of residential care services to manage the finances of adults who are incapable of managing their own affairs and have no other arrangements in place (Age Concern Scotland, 2003).
5.14 A recommendation from the literature is that care homes record and store information regarding an "at risk" adult's guardianship, including the specific powers of the guardian (Mental Welfare Commission for Scotland, 2006; Penhale, 2003) and that communication between the care home and the other relevant parties (such as the guardian, primary carer, family relations, social worker, and Care Commission) occurs regularly, with a record of each contact kept.
5.15 The current literature suggests that little is known with regard to housing problems experienced by "at risk" adults (Fear et al., 2004). However, contact between "at risk" adults and primary health care professionals (such as district nurses, health visitors, and public health workers) suggest that risk assessments could be successfully incorporated into home visits (McCreadie, 2001); this is an effective multi-agency approach, ensuring the voice of the "at risk" adult is heard, and allows health and social care professionals to be aware of any issues the adult might be experiencing.
5.16 Increasing public awareness of issues involved with financial abuse has been indicated as effective in reducing financial abuse and increasing protection and support for individuals "at risk" within communities (Curtis, 2006).
Secondary intervention
5.17 Secondary intervention involves taking swift action in response to allegations of potential abuse, and assessing the situation thoroughly (with an awareness of the sensitive nature of the situation) before a formal judgment is reached about the best course of action (Brown, Burns, & Wilson, 2003; OPG, 2007). This will involve staff education and training to increase awareness and understanding of the issues involved with potential and actual abuse.
5.18 In responding to allegations of abuse, various approaches have been implemented to resolve situations, ranging from contacting relatives regarding the alleged abuse, taking guardianship or referring the case to the OPG England or Court of Protection, and establishing Trust accounts from which the "at risk" adult's benefits are to be managed (Penhale, 2003). These approaches can be implemented in situations of single-occurrence abuse, but also in situations of potential long-term abuse, and have been shown to be effective ways to support and protect "at risk" adults (see Penhale, 2003 re: financial abuse).
5.19 Investigations often involve other agencies and authorities, to achieve an overall view of how best to proceed and to guarantee the future security of "at risk" adults (Brown, 2003; NHS Tayside, 2005; OPG, 2007; Penhale, 2003).
5.20 'Assistance lines' or 'telephone help-lines' have been indicated as effective tools in providing information and support to individuals who may be suffering from financial abuse (Curtis, 2006). In addition to being relatively accessible, support is provided to the "at risk" adult through verbal counsel, with the further reassurance that the assistance and information conveyed by either party is confidential and anonymous (Action on Elder Abuse, 2005). Telephone help-lines are also provided by various charitable organisations that offer confidential advice and support to adults who ring them. These telephone help-lines are suitable to contact at any stage of abuse, and this contact is often the first step in acknowledging potential abuse.
Tertiary intervention
5.21 Tertiary intervention involves moderating the negative and potentially harmful effects of abuse or exploitation on the "at risk" adult, and putting in place arrangements and procedures to guarantee the future security of "at risk" adults and to prevent future harm.
5.22 The potential actions are influenced by the nature of the abuse and the characteristics of the perpetrator (Brown, 2003). To prevent the perpetrator making contact with "at risk" adults in the future, in either a formal or informal role, the perpetrator can be prosecuted (involving local authorities), removed from their respective professional register, placed on the Prevention of Abuse against Vulnerable Adults ( POVA) list, or banned from owning or managing a care home by the Commission for Social Care Inspection or Care Commission in Scotland. These processes vary in effectiveness due to the rigour of disclosure checks when employing individuals. More rigorous and thorough checks need to be implemented before employing any individual who might come into contact with vulnerable adults.
5.23 In England, the OPG can be involved in the mediation of family disputes; for example, situations that involve competing claims from the family or more relevant social contacts, or where a conflict of interest may occur for the attorney (for example being connected to a family member) are situations which potentially put an adult "at risk" of financial abuse. Mediation from an independent source is an effective process for dealing with family disputes, with the OPG being trained to deal appropriately with such situations. No other services exist specifically to offer free mediation regarding financial abuse, however the Citizens Advice Bureau provides free legal advice that can be utilised by a vulnerable adult or a concerned party. Different procedures and approaches apply to OPG Scotland investigations, particularly in relation to guardianship cases where some enforcement action may be necessary.
5.24 Local authorities have a duty to protect the property and assets of an individual who has been admitted to short or long-term care. For example, if an adult has been admitted to hospital and is unable to make suitable arrangements for their property whilst they are within care, the local authority has a duty to prevent any of this property being subject to misuse or misappropriation (Age Concern Scotland, 2003; ASP Act, 2007; Brammer, 2007; National Assistance [Amendment] Act 1948).
5.25 Civil law enables an individual who has been subject to abuse to bring a civil case against the perpetrator (Age Concern Scotland, 2003). Primary legislation, Article 1 of the First Protocol of Human Rights Act 1998 (Human Rights Act, 1998), is particularly relevant to cases of financial and material abuse, as well as to systems where the management of finances and property are delegated by someone other than the vulnerable adult (Brammer, 2001).
5.26 Counselling for victims of financial abuse commonly takes the form of legal advocacy, and can be implemented for single occurrences of abuse and also long-term abuse. Counselling has been shown as an effective process in empowering the vulnerable adult, and preventing future abuse; see 4.25.
Conclusions
5.27 It is a common assumption that older people, who might be experiencing dementia and have subsequently lost the capacity to manage their affairs, are at high risk of financial abuse (Brown, 2003). However, care should be taken not to neglect other "at risk" groups, including people with learning disabilities, mental health challenges, or acquired brain injury, etc., as these groups are deemed vulnerable due to variable levels of capacity.
5.28 The OPG can be involved in the prevention of financial abuse of "at risk" adults at any stage, from intervening in situations where abuse has occurred to identifying mechanisms that will avert situations that may have been previously exploited by the perpetrators of financial abuse (Brown, Burns, & Wilson, 2003).
5.29 There is a need for contact with all "at risk" adults to ensure that these individuals are able to access appropriate services. This can be seen in recommendations for risk assessments for all vulnerable individuals (Fear et al., 2004; McCreadie, 2001) and the communication of relevant information between agencies e.g. between social services and police authorities (Burns & Bowman, 2003; Fear et al., 2004; Mental Welfare Commission for Scotland, 2006).
5.30 The existing literature suggests that there is an increased awareness with regard to financial abuse, although specific interventions aimed at particular populations of "at risk" adults is lacking; for example, support and protection specifically for adults with mental health challenges, adults with impaired communication, etc. The majority of existing literature points to the occurrence of financial abuse in older adults, and touches briefly, if at all, on other populations of "at risk" adults.
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