There are a number of ways you can take control of a person’s finances if they 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.
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.
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.
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.
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.
The Department for Work and Pensions (DWP) can appoint an ‘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 for whom you will be acting.
The role of the appointee
An appointee is responsible for making and maintaining any benefit claims on behalf of someone who is incapable of managing their own finances.
An appointee can be held responsible if a benefit is overpaid. The appointee must:
An appointee can only deal with a person’s benefits.
In some cases, local authorities make direct payments to people who arrange their own health and social care. In these cases, a suitable person is one who is able to manage those payments for a person 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)’.
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.