Glossary

Full definitions of key terms and abbreviations linked to LPA abuse.

With links to sources and further information. Key sources: OPG glossary; Hourglass web pages.

Attorney

The person chosen to act for someone else on an LPA. The donor will appoint an attorney (or attorneys) to help them make decisions when they are no longer able to do so.

Attorneys should be people the donor knows and trusts well. They do not need to be lawyers and many people choose their wife, husband, civil partner, partner, children, other relatives or close friends.

Breach of fiduciary duty

This is a common legal basis for making a civil claim against an attorney who has financially abused the donor. The fiduciary duty means attorneys must not take advantage of their
position. Nor should they put themselves in a position where their personal interests conflict with their duties. It is one of the nine core duties of an LPA attorney, as set out in the MCA Code of Practice (sections 7.58 – 7.68)

Court of Protection

The court that makes decisions on property and financial or health and welfare matters for people who can’t make decisions for themselves because they lack mental capacity. Some of their responsibilities include:

deciding whether someone has the mental capacity to make a particular decision for themselves.
handling urgent or emergency applications where a decision must be made on behalf of someone else without delay.
making decisions about an LPA and considering any objections to their registration. This includes deciding on referrals from the OPG recommending that an LPA be revoked (e.g. due to evidence of financial abuse).

Domestic abuse

Domestic abuse, or domestic violence, is any incident of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members, regardless of their gender or sexuality.

Donor

Someone who has created either an EPA or LPA. They are referred to as ‘donors’ because they have donated certain decision-making powers to someone else. This term is not to be confused with the medical term. Only the donor can make decisions about their LPA, such as choosing their attorneys. A donor must be at least 18 years old and have mental capacity when they make their LPA.

Elder abuse

The abuse, exploitation or neglect of older people.

Emotional abuse

Emotional or psychological abuse involves threats of harm, bullying and harassment and other behaviours or acts of coercive control which deliberately try to scare, humiliate, isolate or ignore a person. Such abuse can also relate to acts that may contravene the human rights of older people, such as the restriction or prevention of people meeting their religious or cultural needs.

Financial abuse or Economic abuse

Financial abuse is where someone in a position of trust interferes in an older person’s ability to acquire, use or maintain their finances. It is always a crime but not always prosecuted. For example, an abuser might exploit an older person by making demands for large transfers. Or an abuser might control an older person’s access to financial resources by refusing to let them access a bank account. Sometimes called Economic abuse. (Source: Hourglass web page on Types of abuse)

Fraud

In plain English, fraud is the criminal offence of getting money by deceiving people. There are various offences under the 2006 Fraud Act (which applies in England and Wales, and Northern Ireland); but when an attorney financially abuses a donor these actions may constitute Fraud by Abuse of Position, because the LPA attorney occupies a position in which they are expected to safeguard the financial interests the donor. Addionally, they must have: abused that position, acted dishonestly and intended by that abuse to make a gain/cause a loss.

Fraudulent Wills

A type of fraud that involves the intentional use of misrepresentation, deception or dishonesty in the making of a will, in order to gain from (or cause a loss) to another person. This can happen in a range of ways, such as: where the deceased’s signature on the will has been forged; where the last will has been deliberately destroyed, or; where the deceased was tricked into signing a document not knowing that it was a will.

Lasting Power of Attorney

A lasting power of attorney (or LPA) is a legal document that lets someone (the ‘donor’) choose one or more trusted people (‘attorneys’) to make decisions on their behalf.

There are two types of LPA (in England & Wales):

health and welfare (making decisions that affect a person’s (health and personal welfare. For example, day-to-day care or life sustaining treatment)
property and financial affairs (to manage the donor’s money, property and other assets)

Both types of LPA must be registered with OPG before they can be used. A health and welfare LPA can only be used when you’re unable to make your own decisions. (Source: OPG Glossary of terms)

MCA Code of Practice (2007)

The Code of Practice gives detailed guidance for decisions made under the Mental Capacity Act 2005, and is intended for people who:

work with people who can’t make decisions for themselves
care for people who can’t make decisions for themselves

It says what you must do when people (including LPA attorneys) act or make decisions on behalf of people who can’t act or make those decisions for themselves. Source: Mental Capacity Act Code of Practice

Mental capacity

Mental capacity means a person’s ability to make a specific decision at a specific time (and is defined in section 2 of the Mental Capacity Act 2005).

A person with mental capacity has a general understanding of the decision they need to make, why they need to make it and what is likely to happen when they make it. Sometimes people have the capacity to make some decisions but not others.

People may lack mental capacity because, for example: they’ve had a serious brain injury or illness; they have dementia, or; they have severe learning disabilities. (Source: OPG Glossary of terms)

Mental Capacity Act (2005) (MCA)

The Mental Capacity Act 2005 is an Act of Parliament applying to England and Wales. Its purpose is to supply a legal framework for acting and making decisions on behalf of adults who can no longer make decisions for themselves. (Source: OPG Glossary of terms)

The Mental Capacity Act (MCA) Directory is a set of reliable information hosted on the SCIE web pages to help in the implementation of the Mental Capacity Act and Deprivation of Liberty Safeguards. Aimed at health and care professionals, but clear and useful for anyone.

Office of the Public Guardian (OPG)

The OPG is the government agency (within the UK government Department for Justice) for people in England & Wales, that enables people to plan ahead for both their health and finances to be looked after should they lose capacity. There are equivalent organisations in Scotland and Northern Irelend (see below). The OPG’s main responsibilities include:

registering lasting and enduring powers of attorney (LPAs and EPAs)
maintaining the public registers of deputies, guardians, LPAs and EPAs, and responding to requests to search the registers
investigating representations (including complaints) about the way in which attorneys, deputies and guardians are exercising their powers

In Scotland: Office of the Public Guardian in Scotland.

In Northern Ireland: Office of Care and Protection.

Physical abuse

Physical abuse is any intentional act or behaviour causing injury, trauma or other physical suffering or bodily harm. This includes instances of fabricated or induced illness or causing a person to become unwell. The behaviours of physical abuse can range from slapping and hitting, inappropriate use of restraint, forcible feeding, scalding and burning, through to the prescription or administration of medication not licensed for the purpose used.

Psychological abuse

Psychological or emotional abuse involves threats of harm, bulling and harassment and other behaviours or acts of coercive control which deliberately try to scare, humiliate, isolate or ignore a person. Such abuse can also relate to acts that may contravene the human rights of older people, such as the restriction or prevention of people meeting their religious or cultural needs.

Sexual abuse

Sexual abuse involves any non-consensual sexual act or activity perpetrated against a person. Such acts can include rape or attempted rape, sexual assault, involving an older person in making or viewing sexual imagery against their wishes, indecent exposure, inappropriate sexual harassment, sexual teasing, innuendo, or non-consensual masturbation.

Predatory marriage

Predatory marriage is the practice of marrying a person exclusively for the purpose of gaining access to their estate upon their death. Older and vulnerable people are often the target, and predatory marriage will often happen alongside other coercive and controlling behaviours. While the requirements for mental capacity to make a valid will are high, in most countries the requirements for entering into a valid marriage are much lower. Source: Wikipedia

Other useful information: https://www.predatorymarriage.uk/

Undue influence

Occurs when someone uses their power or authority in an unfair way in order to influence a legal decision, for example a decision about who gets a contract, or who they appoint as their LPA attorney. (Source: Cambridge Online Dictionary)

Victim (or Victim-survivor)

The person who has suffered due to any kind of abuse. In these web pages, we mainly use the shorter term, victim rather than victim-survivor because in many situations it may not be clear whether the abuse is still ongoing (victim-survivor implies the abuse is in the past – which it may not be).