The extent they would be able to intervene in a will challenge in those circumstances may be quite limited and advice should be sought in such a situation.

Misappropriated assets

Where assets have been misappropriated, for example by way of abuse of an LPA, there are several possible steps that need to be considered to recover the funds.

Where there are suspicions about an attorney, assistance can be sought from either the Office of the Public Guardian or the Court of Protection. If there is evidence to support assets having been misappropriated, it is likely that the LPA will be revoked and an independent deputy will be appointed.

Thought will then need to be given as to the possibility of legal action against the individual in order to actually recover the funds subject to the abuse.

The Court of Protection may assist to a certain extent by way of an order to repay funds to the donor of the LPA. However, it may also be necessary to pursue civil proceedings in order to recover the funds and/or report the attorney to the police for fraud or theft.

Possible civil action might be a claim for undue influence or a breach of trust and/or fiduciary duty claim and could extend to making an application for an injunction in order to prevent the former attorney from disposing of, or dealing with, assets.

Preventative steps

Advisers can play a vital role in preventing financial abuse by ensuring that clients know how to protect themselves.

A notable step clients can take to help protect themselves is putting in place LPAs for property and affairs, ideally with the benefit of legal advice.

LPAs allow an older adult to appoint someone to make financial decisions on their behalf if they become unable to do so themselves. They continue to be valid after a person loses capacity.

Advisers should be on alert, however, if a client wishes to appoint someone they have not known for long or from whom they were previously estranged.

Some steps advisers can take to aid in protecting clients include:

• Reviewing their will regularly. This will help to ensure that their wishes are recorded and that their estate planning remains consistent with their wishes. Anything unusual is more likely to be picked up.
• Keeping a contemporaneous record of meetings with clients.
• If you have concerns about a client’s capacity, best practice would be to obtain a capacity assessment from a medical professional.
• Seeking appropriate advice if you do have concerns.

Financial abuse can have devastating consequences for older adults. By being aware of the signs of financial abuse, wealth managers and financial advisers, along with other practitioners, can help to ensure that their clients' finances are protected.

Sophie Mass is an associate in the Trusts and Estate Disputes team at Kingsley Napley