Lasting Powers of Attorney: recent key developments
When you are appointed as a deputy by the Court of Protection, you will encounter a number of problems in managing the property and affairs of the person who lacks mental capacity. A common struggle is the difficulty of liaising with employees of regulated institutions.
As financial service providers and utility companies become increasingly risk averse, it is predictable that the validity of a court appointed deputyship is more regularly questioned. Recognising the issue, the UK Regulators Network published guidance notes which were written in collaboration with the Office of the Public Guardian (OPG). They are intended to help policy makers in financial services and utility companies provide straightforward and consistent information to their employees, which in theory, should make the process easier for their customers.
The most obvious concern that a company may have is when can they be certain that their customer has lost mental capacity. There is a legal assumption that a person has mental capacity unless there is evidence otherwise. It makes sense that employees are concerned to speak with third parties about a customer’s financial affairs. A common question is whether simply receiving an order is proof that the customer has lost capacity.
The guidance notes provide comfort, making it clear that a court order confirms that the customer lacks the mental capacity to deal with their financial affairs from the date of issue. This is because the judge will have firmly established this before making the order. Therefore, on receipt of a copy of the order, any employee of a regulated company can begin liaising with the deputy immediately.
The notes make it clear that a company can ask to see a sealed court order. However, the OPG suggests that in determining whether an office copy or certified copy is required, the service provider should assess the level of risk involved. For example, a utilities company is unlikely to deal with vast amounts of cash and a copy of the order, certified by a solicitor, may be suitable. In comparison, a bank or broker will potentially be authorising the deputy to deal with a far larger amount of money and it may be more appropriate for them to require an office copy to satisfy the greater risk involved.
Another concern is how an employee can determine whether a court order is valid. The guidelines provide picture examples of what an official court order and court seal should look like. If an employee is unconvinced of the genuineness of a court order, they can contact the OPG directly and request a search of the Deputy Court Order Register. This is a free service which can confirm the validity and the public details of an order.
It remains to be seen how impactful the guidance from the OPG will be. As with all new guidance notes, success very much depends on how these companies promote its use to their employees. Thousands of people across the country benefit from court appointed deputyships and it makes sense for the regulated market to streamline its processes to reflect this modern setting. The UK Regulators Network has provided an additional tool for both sides to refer to and hopefully it will lead to more straightforward and consistent processing for all.
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