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Power of attorney: how to legally manage a loved one's finances

There are a number of ways to take control of a loved one's money if they are physically or mentally unable to.

 

by Michelle McGagh on Apr 04, 2013 at 08:31

Power of attorney: how to legally manage a loved one's finances

There are a number of ways you can take control of a person’s finances if he or she are physically or mentally unable to do so themselves.

This variety has led to some confusion among banks and building societies. However, new guidance developed by the Office of the Public Guardian (OPG), a government body that supervises the financial affairs of people who lack mental capacity, aims to make the process smoother.

Ways to manage a relative’s money

Third-party mandate

If a mentally capable person is physically unable to deal with their accounts, another person can be given access to their accounts in order to carry out their instructions.

The account holder and the person being given access to the account both have to speak to the bank to instate what is known as a 'third-party mandate'. It is not possible to do this if the account holder has lost or is losing their mental capacity. The arrangement should also be cancelled if the account holder becomes mentally incapacitated.

Ordinary power of attorney

Powers of attorney give a person or persons authority, known as attorneys, to look after a person's affairs from finances to healthcare. An ordinary power of attorney is the most basic type and allows a person with mental capacity to put another person in charge of their bank account. As with the third-party mandate it is only valid while a person has mental capacity and can oversee what the attorney is doing.

Lasting power of attorney and enduring power of attorney

These arrangements are for when a person does not have the mental capacity to look after their own financial affairs or to make reliable decisions.

Lasting power of attorney (LPA) should be made before a person is unable to make decisions. The form is filled out and registered with the OPG. Registering the LPA does not mean a person has lost mental capacity.

Enduring power of attorney (EPA) was replaced by LPA in 2007 although the former is still valid if signed before 1 October 2007. If the account holder has mental capacity the EPA can be used to manage a relative’s accounts but if the person has lost or is losing mental capacity the EPA must be registered with the OPG if it was not previously registered with the Court of Protection.

Court of Protection

If a person has not made a power of attorney or is not capable of making one because of their mental state the Court of Protection can decide who handles that person’s affairs.

You have to apply to the court for a ‘deputy appointment’. The order will set out what decisions the deputy can make for the account holder, for example, decisions around investments or a mortgage.

DWP appointee

The Department for Work and Pensions (DWP) can appoint a ‘appointee’ to act on behalf of a person receiving benefits, such as a pension, who cannot deal with their affairs themselves. To be made an appointee you have to contact the DWP which will then visit and interview you and fill in an appointee form (form BF57). The DWP also visits the person who you will be acting on behalf of.

This form only lets you deal with a person’s benefits.

Local authority ‘suitable person’

In some cases local authorities make direct payments to people who arrange their own health and social care. A suitable person is able to manage those payments for someone who cannot manage them themselves.

The local authority will decide if a person is suitable and will be the only person who is able to access and manage the money paid by the local authority. The payments are then paid into a bank account in your name but clearly stating ‘on behalf of (your relative)’.

What information will the bank need?

Taking control of another person’s finances isn’t to be taken lightly. Before the bank or building society will let you access an account that is not in your name they will need;

1. Proof of name and address: your passport or driving licence is acceptable for your name, and proof of address can be a recent utility bill, council tax bill or letter from a government department like HM Revenue & Customs.

2. Evidence of your authority to act for the account holder. This means a copy of a power of attorney or other signed legal document that you have giving you authority.

3. Proof of the account holders name and address: the same proof as before is acceptable.

4. If a LPA has been signed the bank will need to see the original signed form, stamped on every page by the OPG and signed on every page by the account holder and a solicitor or notary.

5. If an EPA has been signed and the person still has mental capacity the bank will need to see an unregistered form but if mental capacity has been lost the bank will need to see a registered EPA stamped on every page by the OPG or signed on every page by the account holder and a solicitor or notary.

6. If you have been made a ‘deputy appointment’ by the Court of Protection the bank or building society will need to see a copy of the court order.

7. If you are a DWP appointee the bank will need to see the BF57 form the DWP issues to you.

Some banks and building societies may ask for specific items of proof of name and address so it is worth checking beforehand.

30 comments so far. Why not have your say?

Tigga

Apr 04, 2013 at 16:12

I set up Power of Attorney for my father, I started to do it through a solicitor who wanted a small fortune, then discovered I could do it myself with ease. It is a good idea to have more than one copy of the document when you are given the Power of Attorney, as HMRC hung onto our document for over three months.

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Rob Walker

Apr 04, 2013 at 17:33

Interesting how different organisations 'accept ' a power of attorney. My mother has investments with Britannia and Chelsea building societies. At the Britannia, they checked my own old investment records and, because they'd already established my identity, the whole process (at a local branch, not my mother's) took about 5 minutes. At the Chelsea they told me to make a half hour appointment with the one individual who 'knew how to do it' and insisted that, although I was also enrolled with them, I had to bring various identity evidence (utility bill, passport etc). I dread to think how I will get on with the other societies / banks I need to register this with. If the government wanted to do something helpful for it's customers (ha, ha) it would have created a database whereby when power of attorney had been verified (once) it could be recognised by all institutions. I'd even pay a small fee for that.

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Alan Selwood

Apr 04, 2013 at 17:35

"It is a good idea to have more than one copy of the document when you are given the Power of Attorney..."

A certified copy, of course, not a photocopy.

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Ken Adams

Apr 04, 2013 at 18:07

Lloyds set up permission for me to sign cheques in my Mother's name with a minimum of fuss and bother, just needed to produce a passport.

Ken adams

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steven fieldfare

Apr 04, 2013 at 18:15

My experience has been much the same as that of Rob Walker. Also, Banks invariably deny online access to accounts and investments, which makes management time consuming. While I understand their reluctance to allow online execution (to slow down risk that assets are "borrowed" to fund the Ferrari), it would be helpful to provide view only facilities.

Similar arcane practices persist later throughout probate, with seemingly endless and repetitive appointments, registrations, proofs of identity and referrals to "head office" or other locations.

Somehow, the scenario needs streamlining to support carers and executors - but I guess all that is not in the legal interest!

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cheshire

Apr 04, 2013 at 18:39

I arranged a deputyship with the court of protection for both my parents myself after making enquires with a solictor who wanted £2400 plus vat to deal with the paperwork.

Although they are many forms to deal with its not so bad once you start to work your way through them & the people at the court of protection are very helpful.

You have to file accounts once a year, so keep receipts for any expenditure.

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Monty Knight-Olds

Apr 04, 2013 at 19:06

Item 4 is inaccurate as it reads "4. If a LPA has been signed the bank will need to see the original signed form, stamped on every page by the OPG and signed on every page by the account holder and a solicitor or notary." If the bank or organisation sees the original then that is it. In the first few years two free office copies could be obtained at the outset. So many were being issued that the OPG changed the ruling and the original can be photocopied and certified by the donor if the donor still has mental capacity or by a solicitor for a fee. Section 3(1) of the Powers of Attorney Act 1971 is the applicable legislation.

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Jemma Ripin

Apr 05, 2013 at 09:20

A relevant note. An article published in the NY Times this week discussed Dementia Care and the increasing cost which is projected to double by 2040. The CashFac Care Accounts platform allows carers and deputyships to easily manage and administer the finances of those unfortunate enough to be able to manage for themselves. You can read more about the solution by clicking on the following URL: http://www.cashfac.com/care-accounts/

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Lin W

Apr 05, 2013 at 10:06

I have an LPA to deal with my Mum's finances. So, just a bit of information about copies.

Take the original LPA to the Jobcentre, and they will make certified copies FOR FREE for you to send to the Pensions Service, Benefits Agency or, I guess, any other Government body.

In my experience, having two attorneys doubles the hassle - but does cover you if you become incapacitated yourself.

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Dennis .

Apr 05, 2013 at 10:45

I recently had our wills rewritten by an old family friend who is a semi retired solicitor. I asked about the Power of Attorney and she talked about the Enduring versus Lasting powers but said that she didn't want to get involved in it as it is a bit of a minefield and can be very expensive. She recommended a local solicitor who did it but the advice was it was best avoided if possible.

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Rebecca Haywood

Apr 05, 2013 at 13:53

Dennis: firstly, there is no "Enduring versus Lasting" Powers debate. Enduring Powers have not been available to create since 2007 although if you made one before then it should still be valid if completed correctly.

Secondly, I cannot believe any solicitor, "semi-retired" or not, would recommend someone not to make Power of Attorney arrangements in place. No-one knows what their future holds - a car accident, a stroke on the football field, dementia - anything could mean that you suddenly became unable to manage your own affairs and particularly if you have sole assets, no-one will be able to step in and help pay your bills, sell your house etc without going through a longwinded Deputyship application which also involves ongoing costs.

Much better to pay a practising lawyer to draw up Lasting Power(s) of Attorney for you - the cost is worth the risk of your making a mistake and the application being rejected if you try and do it yourself - and put these away in the hope that they are never needed. It's like insurance - you pay for the policy, not in the hope that your house will burn down, but in the knowledge that you are covered if it does.

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Monty Knight-Olds

Apr 05, 2013 at 19:15

Well it can be complicated which is why the best option is to use a specialist who concentrates on Wills and LPAs and can therefore give good advice and do a good job. Look for a member of the Institute of Professional Willwriters (IPW).

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Anonymous 1 needed this 'off the record'

Apr 06, 2013 at 09:40

Re Dennis :- get up to date or you will suffer ! and never use a family friend as if they are wrong do you really want to sue them (or your widow or children)?

An elderly friend used the 'family solicitor'. When her husband died, there was hardly anything left - the estate charges were so high because the solicitor 'friend' had taken all his fees for the last 10 years - "those discussions over dinner at your house, those meeting over coffee and at drinks parties". She had not got the stomach to complain, but it left a very sour taste.

LPAs replaced EPA years ago - they are simple to do and EVERYONE should do one and you dont need to involve a solicitor. Get it done yourself NOW.

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busy bee

Apr 06, 2013 at 09:48

Someone needs to do something about the banks and position of Attorneys - please someone in high powered position do this,. The banks refuse to issue more than one statement. Tis means in our case, with one attorney having signing powers, and we have no checks on how she spends the money because she also refuses to sent statements out until 6 months later whan its too late.

The banks should be forced to send copy statements to ALL attorneys if they ask for them even if they charge £10 a statement - that's better than having no information.

The banks make it impossible:- Santander impossible, BOS impossible, NatWest just HOPELESS, hopeless. HSBC simply wont do it.

The only ones that are any good are Hargreaves Lansdown, but they are not a bank - and no, I am not a shareholder etc - They are very good and Attorney etc.

The good thing about registering an EPA (in my case) is that once registered the Will cant be changed.

And, recently, I believe I read that a magistrate was taken to court for taking money from her mother for whom she was an attorney, so someone who does abuse the power can be taken to court......

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Monty Knight-Olds

Apr 06, 2013 at 10:06

I agree with Anomymous 1 do not use a friend. A client of mine used a friend who was a retired solicitor to deal with Probate. Subsequently when I checked beofre seeing the client again I found that one important aspect had not been dealt with and this effected what i was to do for the client until it was rectified! So, ensure that the friend actually specialised in the job required.

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HMK

Apr 06, 2013 at 10:40

Lasting Power of Attornney - I had wanted one set up within my family. After enquiring via solicitors, I was amazed by their varying charges, from £600 min to £2000 plus VAT and filling charges for the LPA on top of that. I decided to download the forms myself, which seem daunting at first. Taking my time and carefully reading the notes, I completed the forms which have been accepted by Office of the Public Guardian and now in place. It shows, you can save a lot of money and avoid solicitors fees, which at the end of the day, are only form filling.

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Mark22

Apr 06, 2013 at 13:27

My father set up an EPA for my mother with himself and myself able to act "jointly and severally". It became enacted when my father died as my mother was incapable.

Although I understood that "jointly and severally" meant that we could either work together or separately, every time I use it, the recipient company insists on seeing my father's death certificate. So make sure you have multiple copies of that as well.

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steven fieldfare

Apr 06, 2013 at 18:43

If it helps Mark 22, Companies shouldn't need to keep certified copies. While they will not accept pre-prepared photo copies, in my experience they will do their own photo copy on personal visits or return your certified copy to you by recorded post (especially when you request so).

That way saves you £6 a copy when you seek retrospective issue from the Registrar. You may need to have 2 certified copies in circulation, however, to allow for postage and return times if you have multi-time constrained dealings.

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Jeremy Procter

Apr 06, 2013 at 22:55

We have just changed our EPAs (Scotland) to English LPAs having moved South. The Office of Public Guardian indeed have very helpful notes and it is possible to download all the requisite forms from their web site. We chickened out in the end and got the Co-Operative legal Services to do it ( We are both card members) and it was very reasonable and handled very efficiently.

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Anonymous 2 needed this 'off the record'

Apr 07, 2013 at 11:00

I have found this discussion more enlightening than a recent trip to a solicitor. I wondered if non-residency of those helping a person with financial matters is a problem? With on line banking you would think not, but ....?

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busy bee

Apr 07, 2013 at 11:15

Being non-resident doenst matter - I know from experience - other that all UK companies want proof of who you are in English (ie letters from HMRC/Pensions UK possibly) and English passport certified copies so get loads of these when you are in the UK. Also with certified copies note in red on the back that this is the certified copy as I have had their copies sent back and my (expensive) certified copies kept by them.

Subscribe to Skpe so you call call the companies cheaply, and use "www.saynoto0870.com" to find their non 0870 or 0845 phone numbers.

Use on-line banking. My fellow attorneys wont, so I rely on them for statements, and as the bank only allows by Mum to sign (99+ and can hardly write now) and one other person who happens to be my sister, I get very very fed up when she refuses to send statements. However, after after a lot of pressure I have now discovered that I can go into a UK bank and demand a statement. But I am only in the Uk 2x a year - quite why they cant post me a copy (even if they have to charge) is beyond me.

Solicitors are usless- all they want is your money and 1/2 the time they dont know what they are on about.

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steven fieldfare

Apr 08, 2013 at 11:17

Anon 2 and Busy Bee

Earlier I related that I have found banks unwilling to allow PoA access to online banking, because of increased risk that accounts are mis-used especially with more than one Attorney and that the Bank is left holding the ring. I argued for view only access to avoid circumstances outlined by others, where one Attorney was effectively able to block flow of information to others.

I have no knowledge, however, how Banks react if online banking is already in place, when POA is first needed, although this is probably a minority occurrence with the elderly. Does anyone have experience of being allowed online access to POA accounts, and with whom?

On a different tack, POA are usually set up because of the loved one's declining mental capacity even though they may still be in their own home. While most people are familiar with single person Council Tax discounts, even where there is a live in sole carer (counts like students at home), Councils will reduce their tax further even to zero when a point is reached (decided by GP assessment) that the loved one is classed as "severely mentally impaired".

More dispiriting, I also alert to a "gotcha" that needs thought prior to loss of the loved one (as I mentioned before, many procedural difficulties of POA seem to translate into probate). Banks like routine and repetitive payments (utilities etc) to be met by Direct Debits, which also lessen risk of account stripping. DDs are also efficient and convenient for Attorneys. However, when the Bank is notified of death, all accounts are frozen until probate except for a one off draft directly made to undertakers to meet funeral expenses.

But Utilities seem unwilling to wait for payment, especially if the deceased home is kept up and running. If the house is closed down, Councils will allow up to 6 months before charging Council Tax, but if kept up and running charges have to be met including others like TV licences etc. Add to this loss of Attendance and Carers Allowances, perhaps. Means of meeting bills and follow on costs before probate, and/or switching them to inheritors need thinking about.

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Ken Adams

Apr 08, 2013 at 12:17

I have previoysly commented that i find that simply having signing powers over my Mother's bank account was easy to set up and meets most needs. I was forgetting about online access which seems less easy. It would help if banks would just allow a "read only " access to check such things as bank account statements. I would also be interested to know if any readers can think of other areas where a POA is more useful than bank account access.

Ken

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busy bee

Apr 08, 2013 at 12:44

Ken Adams says " I would also be interested to know if any readers can think of other areas where a POA is more useful than bank account access."

Please could i ask what exactly you mean by this - I needed POA to get info on insuranec policies and bonds, manage shares through HL - what else ?

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steven fieldfare

Apr 08, 2013 at 14:27

For Ken Adams

I have found POA useful (but perhaps not essential) in bill settling with contractors, Care Agencies and Social Services, where these are contested (mistakes over work content, dates and numbers of attendances etc). POA has also been useful in negotiating/applying for Council Tax re-assessment (mentioned before) and in applications for and management of Grants (everything from stairlifts to safe and warm grants for central heating, re-roofing etc).

Bear in mind that many available public support measures, and their eligibility and reckoning, depend on someone close to the loved one identifying, applying for and managing needs. From Agencies and contractors point of view, it is easier handled through a single POC who is also financially responsible for contributions or settlements.

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steven fieldfare via mobile

Apr 08, 2013 at 19:23

I should have included in my last post that POA is also useful in handling tax affairs, where this is needed. Online completion of tax returns is permitted.

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Prof Eman

Apr 24, 2013 at 12:00

Hoping some-one can clear up a couple of points for me.

1. Is it correct that under POA. a Will cannot be changed/varied whilst the person is alive.

2. But could be varied after death by beneficiaries agreeing a Deed of Variation?

if the first point is correct does this mean that no changes are possible before death, in light of changing circumstances, requiring updates/revisions of the Will. Clearly this would be a disadvantage of the scheme, and are there any ways round it?

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steven fieldfare

Apr 24, 2013 at 12:29

Unable to provide a complete and legal answer but, from experience, a Will can be changed while the person is alive, POA notwithstanding. It depends on the person's condition, and Solicitor and witness belief when seeing the person alone that they are aware and able to make rational changes. My knowlege reflects earlier POA rules where I had limited POA. You may have to look at the most recent rule changes.

Deed of Variation changes, with the agreement of all beneficiaries, is possible I believe when assets are left outright. It differs, however, if the will has Trust conditions or only allows limited or conditional access to assets.

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busy bee

Apr 25, 2013 at 13:08

My belief is that before the EPA/LPA is registered it can be changed at will. Once its registered the permission of the court of protection is needed, or the person must not have been coerced. By registering it means that they really havent got capacity to understand and therefore cannot change the will

But ask the Court of Protection and/or a solicitor so you are sure.

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Geoff Titterton

Apr 03, 2014 at 21:36

My Father recently passed away unexpectedly and in dealing with joint accounts we needed to invoke POA for mum with Hinckley and Rugby BSc due to Altzeimer's - they now want joint attorney signatures for what we, and my Dad, believed to be Savings (identified on statements as savings) accounts (we had joint signature restriction for investments). Additionally we were questioned whether Mum was of sound mind when POA was signed over 12 months ago and then asked today if she was able to make any decisions at all !!!!!!!!!!

Have extended invitation to H & R to visit Mum and make up their own mind but not until after Dad's funeral obviously!

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