The right way forward

The Care and Support Bill making its way through parliament has highlighted once again the crisis in paying for elderly care. Arguably, it has run a coach and horses through the kind of advice older people need from both professionals and the social care system. Importantly, 'elderly' no longer means those over 65; for this article, it means clients over 80.

The prevailing media view - bar some robust opinion from Joan Bakewell seems to favour the elderly population having to sell their houses, leaving no money or home to pay for their long-term care and with no hope of an inheritance for their children. But is this true or just scaremongering?

Regardless, the professional adviser's reality is that clients continue to become increasingly worried about their financial security in old age.

So, what is the reality of giving day-to-day advice to elderly people?

Team effort

Broadly, there are three key frameworks advisers work within, which can be divided as below.

Legal:

• solicitors and barristers

• accountants

• Office of the Public Guardian/Court of Protection/official solicitor

• attorneys and deputies; and

• charities and the Citizens ?Advice Bureau.

Social:

• doctors and medical staff

• local authorities, including social workers

• paid carers; and

• family/friends/unpaid carers.

Financial:

• independent financial advisers

• wealth managers and financial planners; and

• banks.

This seems straightforward. If everyone talks to each other, the result should be advice for elderly clients provided in a sensible, logical and consensual format.

However, the advice itself and even categories of adviser are not that easily separated. Working practices, protocols and vested interests can get in the way and the client is still left dissatisfied or unsure about the advice received and what they can, should or must do about it.

It is often valuable for key people (perhaps two or three) to assist the client in making decisions. This is usually a family member, but it may be any one ?of the advisers or agencies listed.

Checks and balances must be observed to ensure that no one person can exercise undue influence or take advantage of the elderly person at a vulnerable time. This can be a particular challenge in the face of hostility to professional advice; recent case law shows the lengths to which the courts must go to redress undue influence and financial irregularities suffered by elderly testators and donors of powers of attorney.

Of course, many elderly people are more than capable of making their own decisions. But when they do need help, it should be offered in a way that suits them - not everyone else. The frameworks need to work together and flex according to the needs and desires of this burgeoning section of our population.

Forgotten few

There has been a recent avalanche of guidance, practice notes and general commentary. Much is genuinely useful - such as the Law Society's practice note on financial abuse, the legal ombudsman's Guide to using a lawyer as you get older: Ten top tips and the British Banking Association et al's guidance on attorneys' access to bank accounts. The ombudsman has also highlighted recently how unregulated advice has no mechanism for formal complaints or redress, along with its desire to improve lawyers' awareness ?of complaints procedures.

A key theme that keeps coming up in my practice is the possibility for elderly people to 'slip through the net'. For example, unregulated tax advisers selling 'tax-saving' schemes, often involving apparently sophisticated investments effectively unrealisable for the client and/or their estate, whether because of subsequent legislation, illiquidity, restrictions on withdrawals ?or the involvement of an offshore custodian who fails to respond; and will writers providing inadequate or inappropriate wills.

The matter of local authorities referring people to independent financial advisers, without specifying that this should also be regulated, has been debated in relation to the new care bill. Given how highly regulated the mainstream professions are, whether legal, social or financial, it is incredible that there are still unregulated advisers out there, particularly post-Retail Distribution Review.

It is also possible that elderly people with fewer resources or less experience of dealing with financial and legal matters are more likely to fall prey to unregulated advice, which is often accompanied by promises of cost savings or huge tax savings.

Cost savings may mean they do ?not receive the best advice available ?to them; tax savings may not materialise either because the scheme is risky ?or simply because in the current ?climate, acceptable tax avoidance is fast attaining pariah status. The general anti-abuse rule and HMRC's proposed disclosure requirements for tax advisers are both examples of this.

Lead by example How do we best serve clients? Best practice is the best policy. Be constantly vigilant for tell­tale signs of vulnerability, or ignorance of sensible steps that can be taken, such as a widow who has little or no experience of financial matters without access to an accountant and financial adviser or wealth manager when she really needs one. We should offer to put those relationships in place. Ask peers and colleagues to assist with questions of capacity or information the client would find useful. This could include contacting a GP or mental health key worker for advice on capacity when signing wills or other legal documents, or finding the right person in social services to inform the client of services or benefits available to them. Communicate what medical professionals should consider when assessing mental capacity to put in place a will or lasting power of attorney. Having a set of instructions ready to send to the GP or other doctor/carer is essential. Involve agencies such as the Office of the Public Guardian, Financial Conduct Authority and Solicitors Regulation Authority if there is a strong suspicion of wrongdoing or undue influence by advisers or others close to the client. Introduce and consult other agencies such as care consultants, charities and professional groups (e.g. the Society of Trust and Estate Practitioners, Solicitors for the Elderly and, in particular, via online forums) to assist with assessing the best overall plan for the client, not just getting their will and tax return right. Don’t fudge mental health issues. Advice is available from many sources whether family or professional, medical or expert charity advisers. Researching how best to approach clients with early­stage degenerative diseases was one of the best formative lessons I received. Talking to a group of people in the same position gave huge insight into how they are affected by the delivery of legal advice. They all agreed that key to this was the best format to deliver documents, not necessarily the content of the documents themselves. ‘Bite­size’ was the answer.

Joined-up approach

The joint themes of impartiality and empowerment are important (see box above). The latter is often sniffed at, but it encapsulates the best approach to elderly clients who often feel that they are being left behind by the 21st century. It is our job to make them feel in control of the latter stages of their lives with proper advice and no advantage taken.

Impartiality is essential. The knowledge that a client can call us with a question that does not directly relate to the area in which we practise, but ?for which we can provide sensible, down-to-earth advice because of our hands-on relationship, may be just the ticket to enabling that client to sleep better at night.

And that is what it's all about: getting the technical advice right should be a given and making sure the client is ?happy is the ideal result.