11 June 2019 | Comment |

OPG issues guidance for banking and utilities staff on how to deal with powers of attorney / deputies

The Office of the Public Guardian for England and Wales (‘OPG’), in partnership with various regulators, has issued guidance to help support customers who are unable to make their own decisions.

The guidance offers help and advice to staff of financial services and utility companies on how to deal with customers when their decisions are taken for them under a power of attorney or deputyship for property and financial affairs. It was noted that “those who act in the best interests of adults at risk often find the process of dealing with companies they rely on both confusing and inconsistent”.

The aim of the guidance is to provide a “smoother, more uniform and straightforward” customer experience while ensuring that safeguards against exploitation are maintained.

The OPG has stressed that the approach to be adopted is a matter of law and is specifically governed by the Mental Capacity Act 2005.

The guidance advises that company employees should not try to assess a customer’s capacity themselves. Instead they need only to check that the legal documents are genuine, ensure that it is noted who is allowed to make decisions on behalf of the customer and under what circumstances so that attorneys and deputies do not need to go through the same procedure several times.

The guidance further advises that “there is nothing in the law which says that you must see the original LPA” and it notes that photocopies, scanned images and certified or office copies can be acceptable alternatives and that companies should publish clear policies for accepting legal documents, so attorneys and deputies know exactly what is expected of them.

The guidance states that it 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”.

As someone who helps deputies and attorneys who may be struggling with these issues, this guidance is a welcome step in the right direction in helping both them and, ultimately, those for whom they are acting.

Author bio

Roman Kubiak TEP

Partner

Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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