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New guidance on powers of attorney for financial services and utility company staff

A new guide written and published by the Office of the Public Guardian will help consumer markets better support adults at risk. Vicki Gulliver, a Chartered Legal Executive and member of Lodders’ Private Client team, explains.

The Office of the Public Guardian (OPG) and UK Regulators Network (UKRN) have published new official guidance to companies on how to deal with customers whose decisions are made for them under a financial affairs power of attorney or deputy court order.

The new guide provides direct and consistent information, clear policies and advice on lasting powers of attorney (LPAs), enduring powers of attorney (EPAs), and deputy court orders. It aims to ensure staff in financial services and utility companies act more consistently when they see powers of attorney and deputy court orders.

The OPG says it has prepared the new guide as it believes the current process is “both confusing and inconsistent”.

Context

The OPG supports the legal functions of the Mental Capacity Act 2005. It protects people in England and Wales who do not have the mental capacity to make certain decisions for themselves.

Clarity

The new guidance provides clarity for individuals who deal with customers about financial matters and their financial affairs.

The OPG says the main aim of the new guidance is to help ensure a “smoother, more uniform and straightforward” customer experience, while maintaining efficient safeguards against exploitation. STEP joined the focus group, and helped draft the guidance.

Key concerns

The new guidance acknowledges the key concerns attorneys have when dealing with financial services and utility companies. Companies often insist on seeing an original document (an LPA or EPA for instance) when they don’t need to.

This can cause significant delays. But as the guidance points out, nothing in the law requires companies to see an original document. Photocopies, scanned images and certified or office copies should be accepted.

Specifically, the guide states:

“This guide will help companies to develop more uniform and straightforward processes when attorneys or court-appointed deputies contact them and will help consumers to be better prepared when they engage with the relevant companies.

“We must uphold the principles of the Mental Capacity Act and understand our role in helping to protect adults who are most at risk and assist them, where possible, to manage their own affairs. This guide sets out clear policies and advice. It provides clarity to the law, and helpful information which can ease the burden and stresses that new and current care givers face on a day-to-day basis, by making their simple transactions as smooth and problem free as possible.”

Additional information

The guidance confirms that once company employees have checked that the LPA, EPA or deputy court order is genuine, the person appointed has authority to act on behalf of the customer. Staff “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 invalid in some other way.

Also covered in the guidance are:

• Ways of checking the authenticity of Powers of Attorney 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.

What are lasting powers of attorney?

A lasting power of attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf. This gives you more control over what happens to you in the event of an accident or an illness that prevents you from being able to make your own decisions.

A financial affairs LPA has the power to make decisions about money and property for you, for example:

• managing a bank or building society account

• paying bills

• collecting benefits or a pension

• selling your home.

Find out more about Lodders’ Care & Capacity law services, here, or contact a member of our team.

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To find out more about this article, please contact Vicki Gulliver on 01789 206916, or via email.