Best Practice in Supporting Adults Who May Be Vulnerable to Manage Their Own Finances - sageadvocacy.ie
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May 2020 Best Practice in Supporting Adults Who May Be Vulnerable to Manage Their Own Finances A Discussion Document sageadvocacy.ie Nothing about you/ without you
sage advocacy sage advocacy
Contents This Discussion Document has been compiled by Sage Advocacy
in consultation with the National Federation of Voluntary Bodies
(NFVB), the HSE Patient Private Property Accounts Section, HIQA,
representatives of the private nursing home sector and the Department
Section One Indicative methods of support identified 23 of Employment Affairs and Social Protection.
Introduction 4 Method 1: Minimal Support 23
Method 2: Support with oversight 23 A Draft of the Document was circulated to a number of selected
Purpose of Document 4
Method 3: Management by a third party 24 stakeholders and responses received (12) are reflected in the document.
Who the Document is for 4
Section Four It should be noted that supporting vulnerable adults to manage their
Defining and understanding vulnerability 4
finances is a hugely complex area and one where there is a wide range of
Concluding Observations 28
Why additional discussion on views, including among the above stakeholders. How best to ensure that
supporting vulnerable adults with Overarching factors 28 people’s independence in managing their finances is maximised within a
financial management is important 5 rights-based supported decision-making framework is critically important
Families as support providers 28
as is the need to ensure that people’s legal rights are protected.
Section Two: Assessing decision-making capacity 29
Regulatory Framework and Arriving at definitive guidance on best practice is challenging because of
Joint Accounts 30
Legislative Provisions 8 the need to cater for the needs of people in very different circumstances
Other issues 30 and with different levels of capacity to manage their finances, including
Management of the personal finances
of people in residential care services 8 those living in nursing homes, people with disabilities in residential care
Glossary of Terms 31 facilities and those with disabilities living their lives in the community.
National Quality Standards 8
HSE Private Property Accounts 9 Appendix One It is envisaged that the Discussion Document will contribute to opening
Indicative Case Examples 35 up further discussion on this important matter and will contribute to
Social welfare payments agents 10 developing best practice in supporting adults who may be vulnerable to
Ways of getting assistance with Appendix Two manage their finances and to maximise their capacity in this regard.
managing accounts 13 HSE Patients’ Private Property
Sage Advocacy acknowledges with thanks the valuable contributions to
Provisions of the Assisted Decision- Account Guidelines: this document of the agencies listed above and of the stakeholders who
making (Capacity) Act 2015 15 Selected Extracts 39 commented on a Draft of the Document.
Role of HSE Safeguarding Teams 17
Appendix Three
Role of financial service providers
S.I. No. 378 of 2009 Social Welfare
in safeguarding the finances of an adult
who may be vulnerable to financial abuse 17 (Consolidated Claims, Payments
And Control) (Amendment)
Role of Independent Advocacy in ensuring
the support needs of an adult who may
(No. 6) (Nominated Persons) Structure of Document
be vulnerable to financial abuse are
Regulations 2009 42
The Document contains four sections.
adequately met 18
Appendix Four
Section 1 (Introduction) explains the rationale for the document,
Section Three Selected Provisions of the ADM its purpose and sets out some key contextual factors.
Providing Assistance to People (Capacity) Act 2015 43
Who Require Support with Section 2 describes the background to and current regulatory context
Money Management 20 Appendix Five for the management of the finances of adults who may be vulnerable.
Legal presumption of capacity 20
State Funding for Services Section 3 provides principles and related guidance for effective support
Provided by Non-Governmental in the management of vulnerable adults’ personal finances.
Best practice considerations 21 Organisations 44
Supporting adults who may be vulnerable
Section 4 contains some concluding observations.
to financial abuse to manage their money 21 Appendix Six: A Glossary of Terms used in the Document is provided.
Need for an individualised support Useful Resources 45
needs approach 22 Six appendices are included.
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Section One People differ in their exposure to risk as a
result of their social group, gender, ethnic
or other identity, age and other factors.”
Why additional discussion on
supporting vulnerable adults with
Introduction
financial management is important
(International Federation of Red Cross and
Red Crescent Societies5 There is a clear obligation to ensure that
the financial rights and freedoms of adults
Purpose of Document Also, it is relevant to the Department of While acknowledging the vast spectrum of
who may be vulnerable are promoted and
Employment Affairs and Social Protection vulnerabilities that people may experience,
This Discussion Document aims to promote protected. Many people face challenges to
(DEASP) and it is hoped that it will be taken vulnerability is understood in this document in
openness, accountability and consistency their financial independence due to cognitive,
into account by the Department in setting out accordance with the definition of a vulnerable
in working with adults who may be physical or sensory disability, an acquired brain
the requirements for Agents for social welfare person in the HSE Safeguarding Vulnerable
vulnerable and who may need support in injury, mental health difficulties, an inability to
payments which are likely to arise out of the Persons at Risk of Abuse – National Policy and
the management of their personal finances. communicate effectively, lack of family and
implementation of the Assisted Decision- Procedures’ (2014).6
It also seeks to place the protection of the community supports, or an inability to access
Making (Capacity) Act 2015.4 It should also financial services that meet their needs. For
human and legal rights of such persons to “An Adult who may be restricted in capacity
have relevance for the Decision Support some people, this vulnerability is due to a
the fore through ensuring the safe, open and to guard himself/herself against harm or
Service in implementing the Act. lifelong condition and for others their ability
accountable management of their money. exploitation or to report such harm or
This is deemed necessary in order to reflect exploitation” Restriction of capacity may to manage their financial affairs effectively
Focus of Document arise as a result of physical or intellectual deteriorates slowly as a condition, such as
the basic principles of ‘voice and ‘nothing
about you/without you’. While the focus of the document is on impairment. Vulnerability to abuse is dementia, develops over time.
supporting adults who may be vulnerable to influenced by both context and individual
The document locates the discussion on best While it is likely that the majority of persons
manage their finances, it is acknowledged circumstances” (p.3).
practice in the context of existing guidelines supporting people to manage their finances
that the term ‘vulnerable’ presents difficulties (e.g., those acting as Agents for social
and standards, viz. HIQA Standards1 and HSE It is also noted that a vulnerable consumer is
for a number of reasons, not least because welfare payments for people unable to do
Patients Private Property Guidelines2. It takes defined in the Consumer Protection Code as
vulnerability may have as much to do with so themselves) act out of a genuine caring
cognisance of principle that an individual’s meaning a person who:
people’s living circumstances and environment disposition and in good faith, there is an
finances are theirs to be used by them for as with their ability/disability, decision-making • Has the capacity to make his or her own increasing awareness and evidence of the
their benefit and as they choose in accordance capacity or coping skills. Also, there is a wide decisions but who, because of individual financial abuse of vulnerable adults which has
with the principles outlined in the HIQA and spectrum of vulnerability and some people circumstances, may require assistance to been documented in research.7
Safeguarding Ireland Guidance on a Human may be more vulnerable because of their high do so (for example people with hearing
Rights-based Approach in Health and Social level of risk-taking. or visual difficulties); and/or A Red C poll8 conducted for Safeguarding
Care Services.3 These are fairness, respect,
equality, dignity and autonomy and are often Ireland highlighted the fact that half of all Irish
Defining and understanding • Has limited capacity to make his or
referred to as the FREDA principles. adults say they have experienced the abuse of
her own decisions and who requires
vulnerability vulnerable adults either through being abused
assistance to do so (for example, persons
themselves or having seen somebody close to
Who the Document is for Broadly speaking, vulnerability can be defined with intellectual disabilities or mental
them abused. Two in 5 people think vulnerable
as the diminished capacity of an individual health difficulties)
This Discussion Document is for consideration adults are badly treated and 1 in 3 believes
or group to anticipate, cope with, resist and
by those who are over 18 years of age It is acknowledged that there are important vulnerable adult abuse to be widespread.
recover from the impact of a natural or man-
who may be vulnerable to financial abuse, issues associated with the quick onset of
made hazard. The concept is relative and
their families, service providers, including vulnerability arising from, for example, National Centre for the Protection of Older
dynamic. Vulnerability can arise when people
financial, legal, medical and allied health care dementia or Acquired Brain Injury which People (NCPOP) research9 shows that financial
are isolated, insecure and defenceless in the
professionals, along with housing, day care and need to be further identified, analysed and abuse is the most common type of abuse
face of risk, shock or stress.
residential care service providers. addressed but which are beyond the scope reported in relation to older persons.
of the current document.
1 National Standards for Adult Safeguarding (2019), https://www.hiqa.ie/sites/default/files/2019-12/
National-Standards-for-Adult-Safeguarding.pdf 5 https://www.ifrc.org/en/what-we-do/disaster-management/about-disasters/what-is-a-disaster/what-is-vulnerability/).
National Standards for Residential Services for Children and Adults with Disabilities Standard 3.1 6 https://www.hse.ie/eng/services/publications/corporate/personsatriskofabuse.pdf
https://www.hiqa.ie/sites/default/files/2017-02/Standards-Disabilities-Children-Adults.pdf 7 Safeguarding Ireland Report https://www.safeguardingireland.org/wp-content/uploads/2018/10/the-national-safe-
National Standards for Residential Care Settings for Older People in Ireland, https://www.hiqa.ie/sites/default/ guarding-office-report-2017.pdf
files/2017-01/National-Standards-for-Older-People.pdf RED C Poll National Public Opinion Survey in relation to Vulnerable Adults in Irish Society http://familycarers.ie/
Guidance for Designated Centres: Resident’s Finances http://www.fedvol.ie/_fileupload/Quality%20&%20Standards/ wp-content/uploads/2017/06/Red-C-Survey-Vulnerable-Adults-in-Irish-Society-060417-1.pdf
HIQA/Residents%20Finance%20Guidance.pdf Fealy, G., Donnelly, N., Bergin, A., Treacy, M.P., Phelan, A. (2012) Financial Abuse of Older People: A Review, NCPOP,
2 HSE Patients Private Property Guidelines, https://www.hse.ie/eng/services/publications/corporate/ University College Dublin. https://www.safeguardingireland.org/wp-content/uploads/2018/10/Financial-Abuse-Older-
patients%20private%20property%20guidelines.pdf People-_-A-Review.pdf
3 https://www.hiqa.ie/sites/default/files/2019-11/Human-Rights-Based-Approach-Guide.PDF 8 http://safeguardingcommittee.ie/wp-content/uploads/2017/04/Red-C-Survey-Vulnerable-Adults-in-Irish-
4 It is envisaged that Agent payments will, post the commencement of the ADM Act, come within the Society-060417.pdf
remit of the Act and be governed by its provisions for supported decision-making. 9 See https://www.safeguardingireland.org/wp-content/uploads/2018/10/Financial-Abuse-Older-People-_-A-Review.pdf
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These research findings indicate a very agent with the obligations set out in its Current Standards and Guidelines for the The following related domains have been
worrying prevalence of vulnerable adult legislation (which the nominated person/ management of the finances of people identified14 - basic monetary skills, financial
abuse, uncertainty over what constitutes agent undertakes to adhere to at the outset, living in residential care services may not conceptual knowledge, cash transactions,
psychological and financial abuse, and a lack and which are again notified to the agent be sufficiently detailed to cater for the cheque book management, bank statement
of knowledge of what to do when someone at the time of their appointment). While specific support needs of a range of people management, and financial management. For
becomes aware of the abuse of vulnerable legislation provides for the payment recipient with different decision-making capacity example, support with everyday transactions
adults. It should, of course, be noted that to request the discontinuation of an agent in relation to financial management. For is clearly different to the more complex task of
adults without any cognitive impairment or arrangement if at any time they are not example, feedback from Sage Advocacy managing investments.
lack of financial capacity can be financially satisfied with the arrangement, this presumes personnel on this matter refers to a ‘one size
exploited through the use of psychological that the recipient has decision-making fits all’ approach in some services to the Decision-making capacity
manipulation or misrepresentation, coercion capacity. There is some concern expressed management of residents’ personal finances
The matter of the management by vulnerable
or undue influence. by Sage advocates and other frontline staff with active engagement with residents around
adults of their personal finances is intrinsically
about the level of control which may be money matters remaining underdeveloped.
A question arises as to how well current linked to decision-making capacity. There
exercised by family members over people’s
policy and practice supports and facilitates is a common law assumption, now given
finances in some instances, with particular Understanding ‘financial abuse’
the development of people’s decision-making statutory effect in the Assisted Decision
reference to the Agency system for social
capacity to the greatest extent possible in Financial abuse is broader than abuse relating Making (Capacity) Act 201515 (ADM Act), that
welfare benefit payments.
respect of understanding and using money, to personal finances. Financial exploitation all persons are presumed to have the capacity
experiencing ‘ordinary’ social transactions in Significant progress has been made in recent of vulnerable adults can often include the (or ability or competency) to make a specific
the community, knowing where their money decades in relation to the way the finances illegal or improper use of property, the misuse decision or decisions until the contrary is
comes from, why they receive it, how much of people in residential care facilities are of an adult’s home, theft of possessions, indicated. A person is therefore ONLY to
money they get and where it goes. managed taking into account the need inappropriate use of resources such as be regarded as having reduced capacity
to protect the rights of vulnerable adults. utilities, food and transfer of resources such to understand and manage their finances
Ireland currently does not have legislation Residential care service providers are as property and assets and coercion and AFTER all efforts have been made to support
giving a statutory right to protections for generally engaged in a process of developing intimidation to gain access to assets including their decision making by facilitating them
vulnerable adults, but legislation is planned10. appropriate protocols in this regard. Many gift giving and creating a will. The HIQA to understand the decision to be made (see
In 2017 the Government approved the have set out in detail policies and procedures, National Standards for Residential Services Appendix 4).
development of a national policy on national including staff role and responsibilities in include the protection of both personal
safeguarding in the health and social care property and finances (3.6.1). Pending the implementation of the Act, the
facilitating and supporting service users’
sector and underpinning legislation. HIQA presumption of capacity and a functional
choice. Protocols for accounting, record-
and the Mental Health Commission (MHC) approach to capacity (detailed in Section 3
keeping, opening and managing bank accounts Financial Capacity
have jointly developed National Standards below) should prevail in all situations. Under
have been developed and disciplinary action
for Adult Safeguarding.11 Financial capacity has been found to be an current provisions, where there is no legal
relating to any misuse of service users’
advanced activity of daily life, conceptually provision for the management of a person’s
While this safeguarding legislation is pending, accounts has been identified.
distinct from household activities and basic personal finances on their behalf, e.g., an
there remains inadequate protection for HIQA inspection reports over the years have activities of daily life. Research has shown attorney or attorneys under a registered
vulnerable adults relating, inter alia, to referenced evidence in many residential care that financial capacity is already significantly Enduring Power of Attorney (see Glossary),
protection from financial abuse. For example, services of robust systems in place in relation impaired in mild Alzheimer’s disease the only alternative available in order to
there are no guidelines in existence for to the management of residents’ finances. especially in the more complex domains safeguard a vulnerable adult’s personal
safeguarding the finances of a person who However, a gap identified in HIQA Inspection of cheque book use and management, bank money is wardship. When the ADM Act is fully
may be vulnerable to financial abuse who Reports has referred to insufficient support statement management, bill payment and commenced a number of decision support
lives on his/her own in the community or being provided to residents to manage their financial judgement.13 The decline in financial mechanisms will be available to people (see
with a family member or in a house with other own financial affairs as well as some lack of capacity can be rapid, for example, in below). Under the Act, where a person who
people (apart from HSE funded community transparency around the use of residents’ Alzheimer’s disease. has been assessed as lacking decision-making
group homes). money to cover certain staff expenses. For capacity for specific matters, the Circuit Court
The development of a domain-based approach
example, a 2019 Overview Report12 noted will appoint a Decision-Making Representative
DEASP requirements in respect of Agency to financial capacity recognises that an
that in some services where it was deemed to act for that person.
for Social Welfare Payments (see below) individual may be competent to carry out
provides some protection in that the that the risk of financial abuse was too great,
some financial activities and not others.
Department will act promptly to investigate some residents were denied the right to
any case of alleged non-compliance by an manage (with support if required) their own
financial affairs.
10 In March 2017, the Adult Safeguarding Bill was introduced in the Seanad. The Bill received cross party support and 13 Marson, D.C. et al (2009), Clinical Interview Assessment of Financial Capacity in Older Adults with Mild Cognitive
was passed to committee stage. Impairment and Alzheimer’s Disease, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2714907/
11 https://www.hiqa.ie/sites/default/files/2019-12/National-Standards-for-Adult-Safeguarding.pdf 14 Ibid.
12 https://www.hiqa.ie/sites/default/files/2019-08/HIQA-DCD-5-Year-Regulation-Report-2019.pdf p.46 15 Assisted Decision Making (Capacity) Act 2015 Section 8 (2)
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Section Two: 3.1.15 Where people need support to manage
their financial affairs, they nominate
a person to be entrusted with this
for directions as to the use of amounts over
€5,000. The HSE must inform the account
holder and publish a notice of its intention in a
Regulatory Framework and Legislative Provisions responsibility. Nominated persons keep
an account of all monies spent.
daily newspaper. Concern has been expressed
about this requirement and an important
If nominated persons are staff members, question raised as to right of the wider
they are accountable to the person in community to have access to such information
Management of the personal The resident’s right to control their
charge as well as the person concerned. and related data protection issues.
own personal property and finances is
finances of people in residential respected for as long as they wish. 3.1.16 People do not contribute to any The Minister may appoint an independent
care services communal fund without their person to monitor Patient’s Private Property
3.6.3 The residential service keeps an
informed consent. accounts and ensure that the money is used
National Quality Standards accurate and up-to-date record of
for the person’s benefit. Regulations may be
all money, personal possessions and 3.1.17 People can avail of facilities for the safe
National Quality Standards 16 stipulate made to enable the HSE to impose a charge
valuables held on behalf of each storage of their money and valuables.
that each person should be facilitated and for administering Patients’ Private Property
resident. Each resident, if they choose
supported to take responsibility for his/her 3.1.18 Records and receipts of possessions accounts under the terms of the 2006 Act.
to do so, may nominate a person to
own financial affairs. keep an account of all monies spent. handed over for, or withdrawn from,
safekeeping are kept up to date. HSE Guidelines
The National Standards for Adult Safeguarding 3.6.4 Where any money or valuables belonging
require that each person is supported and to the resident is handled by staff within 3.1.19 The person-in-charge ensures that The HSE Patients’ Private Property Account
encouraged to make decisions around their the residential service, dated, signed people have access to advocates and/ Guidelines and associated information can be
personal welfare, affairs and property and that: records and receipts are kept. All records or legal advice in any situation where it viewed on-line at https://www.hse.ie/eng/services/
Arrangements are in place for each person to are signed by the resident. appears they are subject to any form of list/4/olderpeople/pppaccounts/
look after their own personal belongings and financial abuse by a third party.
finances in a way that takes account of the 3.6.5 Where residents need support to The Guidelines state (Par. 7.3.3) that they
will and preferences of the person. Where a manage their financial affairs, they are do not adopt the status-based concept of
person needs support to do this, the service facilitated to access information, advice HSE Private Property Accounts capacity whereby all clients are classified
has transparent and secure arrangements in and support on money management. as either having full capacity or not
People in residential services who are
place (3.1.9). having capacity.
3.6.6 A resident does not contribute to any deemed unable to manage their own property
Standard 3.6 of the National Standards for communal or business fund without (including money) are assigned a ‘Patient’s The following stipulations are included in
Residential Care Settings for Older People in their informed consent. Where funding is Private Property Account’ (PPPA) (see the Guidelines:
Ireland requires that each resident’s personal pooled or communal, proper accounting Appendix 2) if they have capacity to indicate
this preference. It may also be considered • HSE responsibilities to its service users
property and finances are managed and for contributions to and withdrawals include respecting and reinforcing their
protected. The criteria set out under this from the fund are ensured. the most appropriate option for people who
are a Ward of Court or have another legal personal dignity and their freedom to
Standard provide a comprehensive framework 3.6.7 Where arrangements are in determine matters relevant to them;
for the development of mechanisms and place for staff to collect social welfare representative. These accounts are managed
protocols for an effective and inclusive payments or pensions for residents, by the HSE or by someone else on behalf of • The functional interpretation of capacity
approach to the management of people’s guidelines issued by the Department of the HSE (a service provider). Monies on behalf is to be used to the greatest extent
personal finances which would support and Social Protection are adhered to. of people with a PPPA are kept in special practicable, i.e., that capacity is specific
maximise personal control. accounts separate and apart from the HSE’s to the particular act or decision at the
The HIQA National Standards for own accounts. The HSE is responsible for the time it is being made;
3.6.1 The residential service has a clear policy Residential Services for Children and administration of these accounts and acts as
• People, whether they are deemed to
and procedure on the management and Adults with Disabilities stipulate that: trustee of the funds. Patients’ Private Property
have decision-making capacity or not,
protection of personal property and accounts are independently audited each year.
3.1.13 Information, advice and support on must be involved in decisions affecting
finances including pension management.
money management are made available. Money lodged into private property accounts them, including decisions around finance,
3.6.2 Each resident has access to their can only be used for the benefit of the to the greatest extent practicable and
3.1.14 People have easy access to personal consistent with their overall well-being.
personal property and finances and individual. The HSE Central PPPA Unit may
monies and control their own financial
secure facilities are provided for the safe- invest the money held in account or spend it
affairs in accordance with their wishes.
keeping of money and valuables. for the benefit of the account holder unless
directed otherwise by the account holder
or by any person legally appointed by the
16 HIQA and Mental Health Commission, National Standards for Adult Safeguarding,
https://www.hiqa.ie/sites/default/files/2019-12/National-Standards-for-Adult-Safeguarding.pdf
court. The HSE may apply to the Circuit Court
HIQA, National Standards for Residential Services for Children and Adults with Disabilities
https://www.hiqa.ie/sites/default/files/2017-01/Standards-Disabilities-Children-Adults-Plain-English.pdf
HIQA, National Standards for Residential Care Settings for Older People in Ireland, https://www.hiqa.ie/sites/default/
files/2017-01/National-Standards-for-Older-People.pdf
8 9sage advocacy sage advocacy
The HSE’s responsibilities, where there are The Guidelines state that it is neither practical who signed the form) or a person who • An inability to understand and
doubts around a person’s decision-making nor appropriate for the HSE to seek to be fully appears to the Department to have a good complete the claim form
capacity, are set out as follows: prescriptive, particularly “on issues impacted and sufficient interest in the welfare of the
• An inability to understand and deal
by the lack of capacity of clients” and that claimant. If the person lives in a residential
• The HSE’s sole duty concerning PPPA with correspondence and enquiries
local clinical and other staff are best placed service for a continuous period of four weeks
funds is to ensure their funds held by concerning the claim
to know what is appropriate for an individual or more, and, if no other person is available
the HSE are safeguarded for their direct service user. Local discretion must, however, or willing to be appointed as an Agent, a • An inability to manage benefit
benefit and their benefit alone; “be exercised purely on the basis of the client’s representative of the service provider may be payments received
best interests and their interests alone and appointed as an Agent.
• The HSE has a duty to be able to
must be within the parameters set by these The DEASP has advised that where a
properly record and account for any
guidelines” (Par. 7.6.3 p.8). There are two types of Agent: registered care provider is acting as a Type
movements in the funds held by it in
safekeeping for clients; 2 agent, the Department can facilitate
Process for accessing PPPA Funds Type 1 electronic payments directly to the central
• The HSE has no clear legal power for the benefit of the Individual This type of agent collects the payment on residents’ account of the institution. All
to hand over, without their informed behalf of a person who is unable to do so monies transferred must be individually and
consent, the funds of any individual, to The Guidelines stipulate that each person’s due to illness or loss of mobility.20 Type 1 correctly managed on behalf of the resident.
any other person other than where that ability to derive benefit from any item or agency confers no authority on the agent to
person is a Ward of Court (WOC), or has service that might potentially be purchased do anything other than collect the payment Ward of Court or Power of Attorney
in place an operative Enduring Power of using their PPP funds must be assessed by and s/he has no responsibility in relation
Attorney (EPA) or has died; clinical staff in the context of the person’s to informing the DEASP of any changes In the case of a Ward of Court or an attorney
overall Care Plan. In cases where there is an of circumstance – the recipient retains appointed under an enduring power of
• The continued independence of people agreed decision by the clinical team that a attorney (EPOA), the DEASP will make
responsibility for this. The person may cancel
is promoted to the greatest extent service user would benefit from the purchase payments directly to the Committee of the
or revoke an agent arrangement at any time
practicable, consistent with the provision of an item or service not deemed to be Ward or to the attorney by nominating them
and appoint another agent by completing
of safe and appropriate care; necessary for his/her care, application can as agent for the beneficiary. All such payments
the Authority to Appoint an Agent form21.
be made to use the person’s PPPA funds to The Department can also withdraw consent are made electronically to a nominated
• In allowing any utilisation of PPPA funds
purchase such an item or service.18 to a nomination at any time where it has bank account. In EPOA cases, this must be
where a person cannot give an informed
reason to believe that the arrangement is not a financial institution account of which the
permission, the HSE must be guided by
payment recipient is a registered party.
the overriding requirement that it acts in Social welfare payments agents working satisfactorily or that that the payment
the clear best interests of the individual; is not being used for the benefit of the
The Social Welfare (Consolidated Claims, recipient. If this occurs, the Agent must, where The DEASP is in the process24 of reviewing and
• The HSE cannot permit any ‘pooling’ or Payments and Control) (Amendment) (No.6) relevant, return the payments on request. revising the general use of Agents for receiving
‘general use’ of funds -- each person’s (Nominated Persons) Regulations 200919 the State payments of adults who may be
individual fund can only be used for his/ provide for the payment of social welfare Type 222 vulnerable to financial abuse and to this end
her specific benefit; benefits and pensions to a person other This applies where a person is deemed unable established a Working Group to examine and
than the claimant or beneficiary. A person to manage his/her own financial affairs and make recommendations on the adequacy of
• Service users’ funds must be clearly may be either nominated by the claimant or the current procedures and processes for:
an agent is appointed to collect the payment
separated from service provider funds beneficiary to act as Agent and receive the and act on behalf of the claimant.23 In all cases • Appointing agents for social
in order to ensure clarity as to what payment on his/her behalf or be appointed a medical practitioner must certify that the welfare payments
service users are expected to fund from by the Minister. The Regulations specify the person is unable for the time being to manage
their own resources and what they can circumstances in which such appointments • Reviewing existing agent arrangements
his/her own financial affairs for reasons which
reasonably expect the HSE to provide for may be made and, also, set out the duties and may include: • Dealing with specific complaints
as part of its care obligation; responsibilities of the appointed person. The
• An inability to understand the basis of regarding named agents when they
Agent must be over the age of 18 years and be arise (with the involvement of relevant
• Any net interest earned on investment of possible entitlement to benefit
a prescribed relative, a person who has been external agencies as necessary) and
PPPA funds belongs to the clients and
appointed to be a Care Representative of the
cannot be retained by the HSE.17
person (other than the medical practitioner
20 This practice is sometimes just an informal arrangement between the two parties.
21 https://www.gov.ie/en/form/fdc1cd-authority-to-appoint-an-agent/
22 It is likely that a significant number of Type 2 agents are service providers.
17 The HSE may however retain a portion of interest earned on funds invested by the PPPA Central Unit, Tullamore as
provided for in Statutory Instrument No. 639 of 2007. 23 An Application Form, Appointment of Agent - Where a person is unable to manage their financial affairs,
18 Concern has been expressed about the requirement for the HSE to apply to Circuit Court as to the use of monies over 4 must be completed and returned to the relevant section of the DEASP – see https://www.gov.ie/en/service/
€5000 and publish a notice in the daily newspaper and an important question raised as to right of the wider community 451fd7-authority-to-appoint-an-agent/.
to have access to such information. 24 Source: https://www.gov.ie/en/publication/3f6bc5-safeguarding-vulnerable-adults/#safeguarding-
19 http://www.irishstatutebook.ie/eli/2009/si/378/made/en/pdf vulnerable-adults-at-risk
10 11sage advocacy sage advocacy
• Continuing to raise the awareness of • Niece or nephew Institutional Agents Guidelines are regarded by the DEASP as fully
staff on safeguarding and protection meeting the current requirements under social
• Grandchild SI 142/2007, as amended by S.I. No. 378
of vulnerable adults, with a particular welfare legislation and are regarded by the
emphasis on financial abuse • Grandparent of 2009 202A(f),26 stipulates that after an Department as best practice in this area.
institutional agent has collected a pension
The Working Group is also assessing the • Aunt or uncle
or benefit payment (normally by direct
implications for processes and procedures • An appointed Care Representative EFT transfer to the residential care centre Ways of getting assistance with
for agent arrangements in the context of the (see Glossary) account)27 and after the agent has undertaken managing accounts
Assisted Decision-Making (Capacity) Act 2015 any authorised financial transaction/offset
• A representative of a residential There are people who need ‘physical’ support
and will make recommendations for changes on behalf of the recipient/patient, they must
care facility in managing their financial affairs as, for
necessary in order for the Department to ensure that the balance of any benefit is
comply with that legislation. • A person, other than the medical example, their mobility deteriorates but who
lodged to an interest bearing trust account
practitioner who signed the form, who still understand and can still give direction as
for the benefit of the claimant or beneficiary
The Group has submitted its Report and appears to the Department to have to what they want done with their money. They
(see Appendix 3). In line with the above
Recommendations to the Management Board. a good and sufficient interest in the may want support or assistance with paying
provision, as long as all monies are used by
welfare of the beneficiary the institution only for the benefit of the bills or withdrawing funds for daily living.
Persons that can be appointed Agent recipient (Provisions 202A (d) and (e)) and
Obligations of persons appointed that clear and accurate records are maintained Putting an account into a
The Minister can appoint a person or an
as Agents (Provisions 202A (g) and (h)), the interest- “Joint Account”
organisation to be Agent.25 Appointed agents
bearing account need not be an existing or
have a legal duty to ensure the money is used It is often suggested to people who are
A ‘Type 1’ agent must hand all monies new personal account in the name of the
for the benefit of the recipient and they must experiencing such difficulty in managing
collected to the due recipient without person concerned.28
also notify the DEASP of any changes to the their finances that placing their bank or
deduction of any kind.
benefit recipient’s circumstances. The DEASP is satisfied that the accounting credit union account into the joint names
A ‘Type 2’ agent is responsible for obligation in paragraph (f) of the legislation of themselves and the other person who
Many family members act as the Agent for
ensuring that: can be met by a designated centre if it has in is prepared to support them is a way of
individuals who lack the capacity to manage
place a secure and reliable internal structure/ achieving this. This, however, can present a
their money or do not wish to do so. Some • The payment is used for the benefit
system for individualised accounting and significant problem which is very difficult
services may ask families to transfer the of the recipient
tracking of patients’ finances. This means to address if this “arrangement” is not set
agency for the social welfare payment to the • Monies are not spent on items or services that once there is a detailed account of up with due diligence and absolute clarity
service, when a person in receipt of a payment that the recipient has an entitlement to every transaction which is traceable to each as to the intentions of the account owner.
goes into residential care. and are available individual resident then the entirety of the The putting of an account with a financial
If the person concerned wishes that their • The payment is lodged to an interest funds for all residents can be held in one institution which contains money belonging
family member continue as the agent, they bearing account for the benefit of dedicated client account. to one party only (for example accumulated
may do so. However, it is important that the the recipient Disability Allowance or savings from it
The DEASP takes into account the practical
weekly contribution to the residential care or other income or allowances) into joint
• Any changes in the recipient’s difficulties and legislative obstacles which
service continues to be met. There is no legal names with another party has serious legal
circumstances are reported to would be encountered in the opening of a new
obligation to have the service provider take on (and potentially taxation) consequences
the Department bank account by a person with diminishing
the agency but a resident of a nursing home because of the operation in law of the
decision-making capacity and by a designated
may decide to nominate the person in charge The Agent must also keep a record of all sums concepts known as “resulting trusts“ and
centre if it were seeking to facilitate that for
of the nursing home as their Agent. received and all transactions made in relation “presumption of advancement”.29 These legal
a number of its residents. The Departmental
to the benefit payment, and produce the concepts can operate to deprive the rightful
The person nominated to act as Agent must view is that the legislation does not require
records if requested to do so by either owner of some or even all of their money
be over 18 years: that new personal accounts be opened for
the recipient, his/her advocate or an officer and may make it impossible for them to
this purpose.
• Spouse of the Department. access the funds without the approval and/
The financial management structures outlined or signature of the other party whose name
• Parent, step parent or foster parent The Department may cancel an agency in the HSE’s Patient’s Private Property is put on the account.
Legal guardian arrangement at any time where it has reason
• Child or step-child to believe that the arrangement is not working
satisfactorily or that the payment is not being
• Brother or sister, step-brother or
used for the benefit of the recipient. If this
step-sister; half-brother or half-sister
occurs, the Agent must, where relevant, return 26 http://www.irishstatutebook.ie/eli/2009/si/378/made/en/pdf
• Son-in-law or daughter-in-law the payments on request. 27 There is a DEASP Application Form for Direct Payment to an Account in a Financial Institution
https://assets.gov.ie/43104/d9435859f91b4d53b02231380994ce7e.pdf
28 These regulations are likely to be updated when the ADMC Act and related Codes of Practice are implemented.
29 These are relatively complex legal terms which highlight the potential consequences for a person of putting an account
25 See https://www.gov.ie/en/service/451fd7-authority-to-appoint-an-agent/ in the sole name of an individual into a ‘joint account’.
12 13sage advocacy sage advocacy
Third Party/Agency Account This is necessary in order to ensure that it is Provisions of the Assisted Decision- Capacity assessment
identified as an agency account and that their Making (Capacity) Act 2015 The Act provides for a flexible and functional
The only way of making sure that the legal customer receives full information and that the
concepts of “resulting trust” and “presumption approach whereby capacity is assessed only
third party signatory is properly designated. It is almost certain that the full implementation
of advancement” DO NOT apply to an account in relation to the matter in question and only
of the Assisted Decision-Making (Capacity)
in joint names and ensure that the money in A third party authority ceases automatically if at the time in question. If a person is found to
Act 2015 will have significant implications for
the account continues to be the property of the account owner lacks the capacity to make lack decision-making capacity in one matter,
the management of people’s personal finances
the original account holder or owner and is decisions around their finances or to direct the this will not necessarily mean that she/he
in that the Act takes the presumption of
to be used for their benefit only, is to make agent in matters concerning the money in the also lacks capacity in another matter. The
capacity to another level by making provision
sure that all of the parties involved are made account. If this occurs, any Enduring Power of Act recognises that capacity can fluctuate in
for supported decision-making. The Act
aware in writing that the additional person Attorney made by the account owner should certain cases.
provides for three types of decision-making
whose name is being added to the account then be registered to enable the attorneys support options to respond to the range of
is being appointed as AGENT for the original appointed by the account owner to act on Decision-making support options
support needs that people may have in relation
account holder only. These parties include behalf of the account owner in relation to their to decision-making capacity. The legislation recognises different levels of
the financial institution, the original account finances. If not, then an application to court decision-making capability and, therefore,
holder, the person whose name is to be added will be necessary – currently wardship is the The legal requirement to engage in supported provides for different categories of interveners
to the account and all other relevant parties only option available and this will remain the decision-making mechanisms and related to assist a person in maximising his or her
(for example, a care provider or solicitor or case until the ADMC Act 2015 is implemented. provisions envisaged in the ADM Act 2015 capacity. The Act thus provides for three types
family members). In the case of the financial provides necessary impetus and a more of decision-making support options to respond
institution, a note to the effect that the Power of Attorney robust system for ensuring that people are to the range of support needs that people may
additional person acts only as an agent for the enabled to manage their own financial affairs have in relation to decision-making capacity.
account holder should be put on the account. Another option for a person who needs to the greatest extent possible. The full
In banking terms this additional person is physical support in managing their finances implementation of this legislation will be a 1) Assisted decision-making: a person
called a “third party signatory” being given is to put in place a Power of Attorney (POA). significant milestone and will reflect in Irish law may appoint a decision-making
third party authority. This is often referred to as an “ordinary” or core provisions of the UN Convention on the assistant – typically a family member
“general” Power of Attorney provided for Rights of Persons with Disabilities in respect of or carer – through a formal decision-
A third party authority allows the account in Section 16 of the Powers of Attorney Act supported decision-making. making assistance agreement
owner to select a third party (usually a trusted 1996. It is completely different to an Enduring to support him/her to access
relative or close friend) to do their day-to-day Power of Attorney (EPA) also provided for The Act sets out guiding principles that are information or to understand, make
banking without opening a joint account. The under the same Act. A POA automatically intended to safeguard the autonomy and and express decisions;
third party is regarded in law as the account ceases when the person creating it loses dignity of the person with reduced decision-
owner’s agent. The account still belongs to the making capacity. The guiding principles 2) Co-decision-making: a person can
capacity, unlike an EPA which is only capable
account owner, not to the agent, and the agent state that: appoint a trusted family member or
of being brought into effect after the donor
is bound to use the money in the account at friend as a co-decision-maker to make
loses capacity. As with the appointment of • There is a presumption of decision-
the direction of the account owner and for decisions jointly with him or her under
any agent, the attorney under a POA should making capacity unless the contrary
their exclusive benefit. a co-decision-making agreement;
be given clear instructions in the POA as is shown;
to which of the donor’s assets they will, as 3) Decision-making representative: for
Like any other agency agreement, there can
attorney, have power over, how they are to • No intervention will take place unless the small minority of people who are
be rules or limits imposed on the agent. In
exercise that power and for whose benefit. it is necessary; not able to make decisions even with
the context of a vulnerable account owner
In the context of a vulnerable account help, the Act provides for the Circuit
needing support with personal finances, those • Any act done or decision made under
owner needing the support of an attorney Court to appoint a decision-making
rules would include an agreed list of bills to be the Act must be done or made in a way
with personal finances, those instructions representative where no other provision
paid on the third party’s authorization and a which is least restrictive of a person’s
would include an agreed list of bills to be is in place and whose functions will be
weekly/monthly limit to the cash that can be rights and freedoms;
paid by the attorney out of a specified bank as limited in scope and duration as is
taken out by the agent. The account owner can
account and a weekly/monthly limit to the • Any act done or decision made under reasonably practicable.
at any stage cancel the authority of the third
cash that can be taken out by the attorney. the Act in support or on behalf of a
party by giving notice to the bank and to the
third party. person with reduced decision-making Section 8 of the ADM Act 2015 includes the
Without these limitations an attorney could
capacity must give effect to the principles that apply and which should be
deal with all of the assets of the donor and, for
Not all financial institutions will offer the “third person’s will and preferences.
example, sell their land or shares even though given effect when supporting a person to
party signatory” facility. For those that do it
the intention of the donor was simply that make decisions which are summarised on
is recommended that the assistance of the
the attorney be able to utilize their current the next page.
financial institution’s Vulnerable Customer
account to pay household bills and expenses.
Service be requested.
14 15sage advocacy sage advocacy
Pending the implementation of the legislation, that considers whether a person is able to Role of HSE Safeguarding Teams Financial or material abuse, which includes
there would be much merit in all those understand the nature and consequences of theft, fraud, exploitation; pressure in
supporting people with reduced decision- the decision in the context of the available HSE Safeguarding and Protection Teams are connection with wills, property, inheritance
making capacity with financial transactions choices. The test is a functional one, which in place all over the country and work with or financial transactions; or the misuse or
to follow these principles. In other words, asks whether the person can understand, services, families and community organisations misappropriation of property, possessions or
assessment of decision-making capacity retain and weigh up information and to stop abuse and to ensure that people are benefits, is listed among the types of abuse.
must be in a time-specific, issue-specific way communicate their decision. safeguarded. These Teams can be contacted
through local HSE Community Healthcare A HSE National Safeguarding Office
Organisation Areas (CHO).30 was established in December 2015 in
accordance with the HSE’s Social Care
Guiding Principles of the ADM (Capacity) Act 2015 (Section 8) Safeguarding Teams have an important role Division Safeguarding Vulnerable Persons at
to play in addressing concerns about financial Risk of Abuse National Policy & Procedures
• A person is presumed to have capacity abuse. In circumstances where a service, in order to oversee the implementation,
• All practical steps have to be taken to help a person make a decision professional or family members believes there monitoring, review and ongoing evaluation
• A person is not unable to make a decision merely because they make an are concerns about bad practice and are a of the Safeguarding Policy as well as
unwise decision mechanism for reporting any such concerns. coordinating the development and roll-out
• A decision (intervention) is only made for a person when it is necessary of safeguarding training.
The underlying rationale for the Safeguarding
Teams is that all adults have the right to
A decision (intervention) made for a person must be safe and to live a life free from abuse Role of financial service
regardless of their circumstances. They have providers in safeguarding the
• be the least restrictive of their rights and freedom
a right to be treated with respect and to feel finances of an adult who may be
• respect the person's right to dignity, bodily integrity, privacy, autonomy
safe, regardless of the setting in which vulnerable to financial abuse
and control over their financial affairs and property
they live.
• be proportionate to the significance and urgency of the decision The Central Bank of Ireland Consumer
• be time limited The “Safeguarding Vulnerable Persons at Risk Protection Code31 stipulates that where a
of Abuse - National Policy and Procedures”, Bank has identified that a personal consumer
The person making the decision (intervener) must which applies to all HSE and HSE funded is a vulnerable consumer, the Bank “must
services, outlines a number of principles to ensure that the vulnerable consumer (see
• permit, encourage and facilitate the person to participate in the decision promote the welfare of vulnerable people Glossary)32 is provided with such reasonable
• take into account the person's past and present will and preferences and safeguard them from abuse, including, arrangements and/or assistance that may
in particular, respect for human rights and be necessary to facilitate him or her in his or
• take into account the person's beliefs and values
empowerment of individuals. All vulnerable her dealings with the regulated entity” (3.1).
• take into account any other factors the person themselves would consider
people have a right to be protected against
if they were able to
abuse and to have any concerns regarding A Financial Service Provider who is engaging
• act in good faith and for the benefit of the person abusive experiences addressed. with a person who is perceived by a staff
• consider all other circumstances which are relevant member of that Financial Service Provider to
• consider the likelihood of the person recovering the ability to make the be potentially vulnerable to financial abuse
decision themselves and the urgency of the decision to be made has a particular duty of care to that person
• obtain relevant information only, use the information only for the purpose on account of their vulnerability. This was
of making the decision, keep the information secure and dispose it safely established by a High Court judgement in
when no longer required October 2010.33
The person making the decision must, unless not appropriate
or practical
30 https://www.hse.ie/eng/services/list/4/olderpeople/elderabuse/protect-yourself/safeguarprotectteams.html
• consider the views of others the person names as people to 31 https://www.centralbank.ie/docs/default-source/regulation/consumer-protection/other-codes-of-conduct/
4-gns-4-2-7-cp-code-2012.pdf?sfvrsn=6
be consulted
32 A vulnerable consumer is defined in the Consumer Protection Code as meaning a person who:
• consider the views of the person's decision-making assistant, a) has the capacity to make his or her own decisions but who, because of individual circumstances, may require
assistance to do so (for example people with hearing or visual difficulties); and/or
co-decision-maker, decision-making representative or attorney b) has limited capacity to make his or her own decisions and who requires assistance to do so (for example, persons
with intellectual disabilities or mental health difficulties).
The person making the decision may 33 Bourke v O’Donnell & Others [2010] IEHC 348 The bank’s customer was a woman who had been in bad health for some
years and was now living in a nursing home. She attended at the bank to withdraw all of the proceeds of an insurance
policy, which had recently been lodged to her account and which was her only asset, in order to give the money to her
• consider the views of a health professional, the person's carer or other neighbours. Mr Justice Hedigan considered that the customer was highly vulnerable, the transaction wholly improvident
and its circumstances so bizarre that the bank ought to have enquired further to satisfy itself that their customer had the
person who has a genuine interest in the person's welfare capacity to issue instructions free from undue influence and in not doing so had breached its duty of care and so was
liable for the sum of money. See als https://www.lawsociety.ie/Solicitors/Practising/Practice-Notes/Transactions-in-
volving-vulnerableolder-adults-to-include-requests-for-visits-to-residential-care-settings/#.XZ97SUZKg2w
16 17You can also read
