Whilst living with a disability, illness or diagnosis can make someone vulnerable, in the context of legal advice it is the person’s situation and barriers to accessing legal services that might make them vulnerable. This can include those who are recently bereaved or frail.
What safeguarding means and why it matters
The usual context for safeguarding is in connection with The Care Act 2014 which places a statutory duty on UK local authorities to protect adults with care and support needs who are experiencing, or are at risk of, abuse or neglect and are unable to protect themselves because of their care needs. Local authorities must investigate or coordinate an investigation if they receive a safeguarding report – this applies regardless of how their care is funded.
However, legal safeguards are statutory protections and procedural mechanisms designed to shield vulnerable individuals from harm. If you are concerned about a vulnerable adult legal safeguards may well be available to protect them.
The importance of safeguarding vulnerable adults:
- It can reduce or stop the risk of abuse before harm can occur
- Good safeguarding practice means finding the balance between keeping a vulnerable adult safe and protecting their independence, dignity and rights.
- By identifying risks and warning signs early, support networks can step in before situations escalate.
Examples of where safeguarding is important to consider:
- Elderly relatives with care needs – ensuring that your loved one’s care needs are being met properly whether this be in their own home or in a care home.
- Adults with disabilities – ensuring that disabled adults are supported and well informed with decision making.
- People living with dementia – where possible making Lasting Powers of Attorney to enable the person to be supported with their decision making if needed.
- Individuals struggling to manage finances or decisions – if a person lacks the mental capacity to be able to make a Lasting Power of Attorney then a Financial Deputyship Order from the Court of Protection might be required.
Safeguarding legislation
In the UK there is existing legislation in place to help protect vulnerable adults and to support families making important decisions. Two that are often used when dealing with legal issues in the context of future planning are the Mental Capacity Act 2005 and The Care Act 2014.
The Deprivation of Liberty Safeguards (DoLS) protect vulnerable adults aged 18+ in hospitals or care homes who lack the mental capacity to consent to their care. They ensure restricted freedom is necessary, proportionate, and in the person’s best interests
Types of abuse
There are many types of abuse which a vulnerable adult may face. The following are only a few but warning signs for them can include:
- Physical/emotional/psychological abuse – noticing the vulnerable adult has become unusually quiet, withdrawn or tearful. They may become suddenly anxious or fearful.
- Financial abuse – unexplained withdrawals on bank statements both in relation to value and regularity.
- Neglect – failure by others to provide necessary food, medication, heating or hygiene assistance.
- Self-neglect – the individual cannot or chooses not to look after their own basic health, nutrition or living conditions.
Good safeguarding practice
Protecting finances and future decisions
Planning for the future is key – do not wait for a crisis to occur before doing anything. This will take time to organize but forward thinking will provide peace of mind that protection is in place if it is needed.
The Mental Capacity Act 2005 provides specific mechanisms to ensure that someone connected to the vulnerable adult can safely step in when capacity is lost:
Lasting Powers of Attorney – if the vulnerable adult has mental capacity to be able to do so they should consider making LPA’s (both financial and health versions) in case they are needed in the future. This gives them control over who will be authorized to act on their behalf rather than leaving the decision to potentially a court-appointed stranger.
If the vulnerable adult lacks mental capacity to make LPA’s and they have property/assets that need to be dealt with then an application to the Court of Protection for a Financial Deputyship Order will be needed.
If a vulnerable adult loses mental capacity their attorney or Deputy should formally register the relevant documentation with the vulnerable adult’s bank. They should not rely on informal arrangements e.g. disclosing PIN numbers, as this leaves the account vulnerable and violates banking terms.
Being appointed as an attorney or Deputy for a vulnerable adult will enable you to monitor their financial activity and to note any peculiarities. If transactions are carried out on behalf of a vulnerable adult it is advisable to keep receipts and a clear record. Monies belonging to a vulnerable adult should be kept separate from other parties’ finances.
Stay involved in care decisions – in the absence of legal authority to decide on such matters the local authority is allowed to make decisions in a person’s best interest and in most cases should consult with those involved in a vulnerable person’s care.
Protect against scams
Isolated older or vulnerable adults are prime targets for criminals. Simple steps can be taken which can offer protection including the installation of call-blocking devices on telephones, registration with the Telephone Preference Service and the Mailing Preference Service and adding spam filters to email accounts.
Deputyship and managing finances
Managing inheritance and long term financial support
Inheritance can affect entitlement to certain welfare benefits. Having access to additional funds can also make a person more vulnerable to exploitation. Legal advice should be sought to understand how certain trusts can be set up to help protect money and assets for disabled or vulnerable family members.
Disabled Person’s Trusts
Where applicable this type of trust has special tax advantages and protects and manages assets for a vulnerable person without disrupting their eligibility for means-tested benefits. It also provides peace of mind for anyone wishing to ensure that their vulnerable relative is supported financially throughout their life.
Discretionary Trusts
With this type of trust the Trustees (the people who administer the Trust) have full discretion over when and how funds are distributed. This allows long-term protection and tailored support for beneficiaries who may not be ready (or able) to receive assets outright and their flexibility and the ability to adapt to circumstances are key advantages over other trusts. This type of Trust will attract specific tax rules so professional advice should always be sought.
Care home funding issues
There are a lot of processes to go through when considering entry to long term care. Professional advice should be sought on alternative or additional funding options to ensure that any decision is fully informed. This includes NHS Continuing Healthcare funding, Funded Nursing Care, interim funding and Deferred Payment Agreements. If the local authority is going to assist financially then a financial assessment will be needed and it is important that this is carried out correctly. Care Home contracts need to be fully considered and understood to avoid problems in the future and this is something that Goughs can advise on.
Raising safeguarding concerns
If you believe that a vulnerable adult is in immediate physical danger or a crime is actively being committed then you should call 999 straight away.
Every UK local authority has a dedicated Adult Safeguarding Team. If you suspect your relative is being neglected, financially abused, or mistreated (even by another family member), report it to the council.
If you believe that an Attorney or Deputy is not acting in a vulnerable adult’s best interests you can report your concerns to the Office of the Public Guardian who has power to investigate further.
How Goughs can help
We are a dedicated team experienced in supporting vulnerable clients and can offer advice and guidance on all of the matters mentioned in this article.
