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Vardags Family Law Essay competition 2023/24 | Zarina Huq

Zarina Huq – London School of Economics and Political Science

A Critical Examination of Elder Law and the Imperative for Enhanced Protection in Lasting Powers of Attorney, Guardianship, and Caring Responsibilities

Elder law is an often overlooked part of family law in England & Wales. Elder law refers to laws relating to different types of law that affect older people, such as medical law and financial law, specifically relating to later life planning. Whilst elder law may appear to be individual-focused and disconnected from the wider practice of family law, this is not true in reality; the needs of older people are often interlaced with the requirements of their families, such as providing care in old age or appointing a relative as a power of attorney. Despite the ageing population and life expectancy in England & Wales growing significantly in recent years, a lack of legislative provisions and academic discussion exist for the different elements of elder law. In this essay, I will cover three main areas of elder law that impact families: lasting powers of attorney, special guardianship orders and the role of carers. Within each area, I will examine the current legislation in England & Wales, predominantly focusing on the Mental Capacity Act 2005 and the Children Act 1989, including any relevant case precedence and gaps in provisions. Furthermore, I will discuss links between these three main areas of elder law, coming to the conclusion that English law must be more specific in requirements and investigations concerning older people to protect their wellbeing, as well as that of their families.

Lasting powers of attorney

Lasting power of attorney (LPA) is defined within the Mental Capacity Act 2005 (MCA 2005) as a legal document that enables a person (the donor) to appoint one or more people (an attorney) to make decisions on their behalf. This can include finances, such as paying bills, as well as healthcare, such as deciding treatment. Whilst LPAs can be appointed by anyone over 18 and with mental capacity, most LPAs exist to protect older people and those with medical conditions. The provisions in sections 9-14 of the MCA 2005 specify that the decisions an attorney makes must be in the best interest of the donor, and for some cases this requirement is adequate to reach a fair judgement. For example, in the case of AB v XS, an attorney (also a relative) applied to force an elderly woman (the donor) to return to England after many years of living in a care home in Lebanon. Whilst the woman had dual nationality in both countries, the court reviewed evidence from an expert psychiatrist, who affirmed that it was in her best interest to remain in Lebanon due to her dementia and ties to the local community. This is an example where the best interest element of the MCA 2005 is easily understood with relevant evidence, and the attorney being a family member of the donor is not given undue precedence in the judgement.

 

However, there are several cases where the provisions in the MCA 2005 are not specific enough to ensure an accurate judgement. An example of this is a review of various lasting powers of attorney in 2019 about giving a donors funds to charitable causes, where it was held that further detail under best interests in the MCA 2005 was unnecessary, as altruism fell under this definition. This judgement is lacking in clear justification, as the concept of altruism can be highly subjective and it can be difficult to judge whether charity is in a donors best interest. There is a question of whether donating funds can be seen as a necessity in the same way other attorney tasks are, such as paying bills. Furthermore, with relatives having a lasting power of attorney over an elderly donors money, there is ample opportunity for financial elder abuse to arise; therefore, it appears unwise to opt for an overly broad definition of best interest for the sole reason of simplicity.

The lack of specificity in the MCA 2005 is not limited to the definition of best interest. This is clear in the case of Public Guardian v A, where an older womans daughter was given lasting power of attorney. Despite her occupation as an auditor, which the court determined to fit the term financial expert, the daughter was applying for credit cards in her mothers name and giving her very little allowance. This correctly led to the court revoking the daughters LPA and appointing a professional deputy, but the question arises of whether the requirements to become an attorney are stringent enough. Although the attorney in this case was an auditor, being a financial expert is not a prerequisite; the only requirements are being over 18 and not being bankrupt under the MCA 2005. In the context of rising elder financial abuse and LPAs only becoming enforceable after the person loses capacity, it is unusual that there are no evaluations by social services about the capabilities of the attorney, as well as the relationship between the attorney and the donor. In both this case and AB v XS, a lack of detail within the provisions of the MCA 2005 has created risk for elder financial abuse by their family members.

There are further details that are overly simplified in addition to the MCA 2005, such as the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007. This statutory instrument expands on the provisions of the MCA 2005. An example of how these regulations have not been correctly used is in the case of Public Guardian v Kittle, where a lasting power of attorney was allowed by the court to be executed by a first cousin of the donor as it held that a first cousin was not a family member. This decision was solely based on a case from 1951; this clarification of a family member appears to be unsubstantiated, as the majority of people are likely to consider a first cousin a family member, and relying on one case from 1951 is not standard judicial practice. Whilst this may seem to be an inconsequential detail, the reason for a ban on family members executing a lasting power of attorney is to ensure the LPA is formed with full consent, and without duress or bias. By ruling that a first cousin can execute an LPA with no further investigation beyond a singular case from 1951, the law is once again leaving older people at risk of elder abuse or manipulation.

 

A final point about lasting powers of attorney is that finances and healthcare are not the only areas where decisions can be made on behalf of the donor. For example, attorneys may have to make decisions about whether the donor can consent to research. This is especially relevant in medical studies, as the need for dementia research is recognised but the participants often do not have mental capacity. This can create a dilemma for attorneys, and there is no clear guidance aside from brief references in the MCA 2005 Code of Practice; this uncertainty is intensified by the Code of Practice not being legally binding. As opinions about specific research studies can be more difficult to ascertain, attorneys are forced to make assumptions about the consent of the donors. The lack of detail, even in the non-binding Code of Practice, disadvantages the decision-making of attorneys and the participant welfare of donors.

Special guardianship orders

Special guardianship orders can be applied for by several different groups under the Children Act 1989, but a specific demographic that has frequently applied is the elderly, or more specifically grandparents. A special guardianship order is a court order that gives parental control over a child to someone other than the childs parents. Since grandparents are often aware of any problems with parenting, it is expected that some would rather care for the child than social services, and therefore apply for a special guardianship order. An example of this is in the case of Derbyshire CC v SH, where there were potential adoptive parents ready to adopt but the grandmother applied for a special guardianship order; whilst she was not technically the biological grandmother, the court recognised the existing familial relationship she had developed with the children and determined that it would be in their best interest not to be adopted by strangers. This is also an example of how the court gives great importance to the concept of the family in parenting laws, even when the family bond is non-biological.

 

However, whilst there are many cases where special guardianship orders have been correctly granted, the importance placed on the family can also cause problems. An example of this is in the case of Northamptonshire CC v LA, where both the mother and father were not able to look after their children (although the fathers risk level was lower than the mothers). Due to the childrens paternal grandmother being a registered foster carer, a special guardianship order was granted. No issues would appear to affect the children here, apart from the fact that the court mandated the grandmother setting contact levels with the father at her own discretion. There are several questions that arise from this order: why was there no consideration that the grandmother may be biased as the father of the children is her son, despite being a foster carer? Why was contact not decided by the court as it was with the mother, especially considering that the father was convicted of driving his children when disqualified from driving? The Children Act 1989 specifies that the local authority should provide reports to support special guardianship orders, which would answer the first question; however, the report claimed that the grandmother could be trusted with no further elaboration as to what substantiated this claim. Therefore, there is a question of whether the importance placed on keeping the family together and children being in the care of a relative such as their grandmother can interfere with the true best interests of the children. This corroborates the previous argument about lasting powers of attorney and how the idea of best interest for both older people and children is often too wide to be consistently applied to cases.

A wider observation about grandparents applying for special guardianship orders is the complexity of the process, regardless of whether the order should be granted. For example, to even submit an application costs £232, and this is the base fee; if the grandparent wants to instruct a solicitor, this cost is much higher. Whilst applications could theoretically be made without a solicitor, confusion around advocating for yourself or children can be difficult, especially when older people are often stereotyped as vulnerable or less capable, and therefore many grandparents wish to instruct a solicitor. In addition to the financial requirement, grandparents are required to inform the court three months before they plan to submit the application for a special guardianship order; this bureaucratic policy could cause distress for both the grandparent and children, as parenting situations can easily worsen in a short timeframe. As grandparents would not be able to immediately submit an application, this increases the chances of children spending time in local authority care, causing further distress and unnecessary uncertainty. Whilst it is important to acknowledge the need to investigate the suitability of the grandparent applying for the order, it appears counterproductive to require three months notice before the initial application is submitted.

The role of carers

Carers are the main form of care provided to many elderly people, and 90% of carers are relatives. The main legislation surrounding care is the Care Act 2014, which outlines requirements for both people in care and the carers themselves. The purpose of this is to ensure that carers feel supported by their local authority by ensuring a continuation of care as well as a life outside caring, but this legislation is not enforced in reality. Due to austerity and subsequent budget cuts in social care, local provisions for carers are vastly ineffective. This problem is specifically relevant to family members caring for elderly relatives; for example, the eligibility criteria for financial support has become more restrictive, and older carers looking after elderly spouses are less likely to be perceived as needing support during assessments due to the notion that caring for a spouse is part of the marriage contract. This can cause a range of issues within the family for both the carer and older person, as burnout and lack of support for the carer can impact the quality of care given. This can, in turn, also create negative impacts on the marriage or other familial relationships. Whilst these issues are not strictly related to elder law in terms of case law, it is important to recognise the failure of social policy to uphold the statutory requirements set out in the Care Act 2014 because the relevance of legislation is diminished if not carried out in practice.

It is also important to consider how the role of carers is affected by both race and gender. Research shows that local authorities in England & Wales are prone to assumptions that care is automatically provided within ethnic minority families, due to racial stereotypes. Whilst it is true that many families do provide care to their relatives rather than relying on local authorities, this generalisation is dangerous as it can create barriers for those families who do not fit this stereotype. This lack of attention from local authorities is worsened by statistics that show older ethnic minority people are more likely to have poor health, and therefore need care. Additionally, women are more likely to be carers of older people than men. Considering the societal pressures on women to be caregivers as one of their main roles, the demand for women to leave work and become carers has negative effects for their mental health, with depression being a common occurrence for female carers. This disadvantage is further compounded for ethnic minority women, many of whom also face cultural pressures to care for older relatives, as care homes or local authority support can be seen as disrespectful or shameful.

The issues that carers face are linked to the legislative issues that affect LPAs and special guardianship orders. This is because carers, as relatives, are likely to also become attorneys if their relative needs one. This can add further pressure to the responsibilities of carers, as the pressure to make important medical and financial decisions for another person can be a stressful burden to bear. Additionally, significant increases in mental health problems for carers of older people could bring into question whether they are still able to hold a lasting power of attorney for their donor. Furthermore, whilst grandparents with special guardianship orders may appear to be a more tenuous link to carers and LPAs, it is common that grandparents can become elderly whilst the children under their care are still young. With 47% of people over 75 living with a long-term illness in the UK, grandparents needing care with young dependants and little support from the grandchildrens biological parents could cause issues for the whole family. Subsequently, significant health issues for the grandparents could limit their ability to care for the grandchildren and raise questions of whether the special guardianship order can remain in place.

To conclude, it is clear that elderly people and their families are being neglected by the current legislative provision in England & Wales. Considering the analysis of case law across both lasting powers of attorney and special guardianship orders, it is evident that a lack of specificity in concepts such as best interests and local authority reports for granting orders leaves older people at risk of elder abuse, as well as children at risk of inadequate care. This is worsened by the austerity-riddled legal and local authority systems, where the processes of making applications and accessing support are unnecessarily bureaucratic and expensive for older people and their carers. Wider societal norms and stereotypes in England & Wales further exacerbate these negative effects for women and ethnic minorities in particular. A more detailed legislative framework of elder law, as well as the accurate application of said legislation in the courts and social policy, is imperative to ensure the best interests of older individuals and their families in later life decision-making, child access arrangements, and caregiving responsibilities.

 

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