Banking and utilities staff told how to deal with England and Wales powers of attorney
The UK government has issued guidance advising the staff of financial services and utility companies how to deal with customers whose decisions are taken for them under a financial affairs power of attorney (PoA) or deputy court order.
The guide, written by the Office of the Public Guardian (OPG) for England and Wales, in partnership with various regulators, notes that companies' attitudes to these legal instruments are often both confusing and inconsistent. It aims to help regulated firms such as banks to provide a 'smoother, more uniform and straightforward' customer experience, while ensuring that safeguards against exploitation are maintained.
The OPG stresses that companies' approach to dealing with customers who have PoAs or deputy court orders is a matter of law, specifically the Mental Capacity Act 2005. Company employees are warned not try to assess a customer's capacity themselves, but must only check that relevant legal documents are genuine, read them to see who is allowed to make decisions for them and under what circumstances, and amend their records accordingly so that attorneys do not have to go through the same procedures several times.
Part of the guidance addresses one of the principal complaints of attorneys who have just taken over a person's affairs: that companies often insist on seeing an original document, such as a lasting power of attorney (LPA) or enduring power of attorney (EPA), without really needing to, or will ask to see it on repeated occasions. It advises staff that an attorney or deputy will probably have many companies to deal with at the start of making financial decisions, and asking them for original documents could delay matters.
'There is nothing in law that says you must see the original LPA', says the guidance. It notes that photocopies, scanned images and certified or office copies can be acceptable alternatives to original documents. 'Your choice to accept original documents might depend on the level of risk involved in letting an attorney manage someone's account. For utility companies, the risk might be relatively low. For banking services, where an attorney would be able to withdraw someone's life savings, the risk might be higher.' Companies should publish clear policies for accepting legal documents, so attorneys and deputies know exactly what is expected of them, it says.
Moreover, it tells company employees that, once they have checked that the LPA, EPA or deputy court order is genuine, the person appointed has authority to act on behalf of the customer: 'You should then treat the attorney or deputy as you would treat the customer they are acting for.'
It also reminds companies that a property and financial affairs LPA can be used before the donor loses capacity, unless the donor stated otherwise, has cancelled it or it becomes ineligible in some other way.
Also covered in the guidance are ways of checking the authenticity of PoAs and other legal documents; reporting concerns about attorneys' actions; dealing with joint PoAs; replacement attorneys; the donor's preferences and restrictions; EPAs; and deputyship orders.