Guidance is not enough

It’s been a year since A framework for authorising people wanting to operate a bank account for someone else: guidance for banks and building societies was issued. At the time, I noted that training for staff was fundamental for the guidance to have an impact. Sadly, it has not been an overwhelming success.

Recent reports indicate that the financial ombudsman has had to warn banks to offer more training, with
35 complaints a month coming in about powers of attorney. In the past couple of months, I have been involved in two matters that indicate just how much
of a problem this can be.

The first involved an unregistered enduring power of attorney (EPA). The gentleman at the bank told my client that this “wasn’t long enough to be a power of attorney”. My client called
me and I had a difficult conversation with the member of staff who refused to accept that it was a valid document or that he may be confusing an EPA with a lasting power of attorney (LPA).

In the end, I had to email this to
my client: pages 1 and 2 of the guidance document, setting out the status of the BBA’s framework; pages 10, 11 and 12 of the guidance document, setting out what an EPA is; and an example of a blank EPA form (as set out in the Enduring Powers of Attorney (Prescribed Form) Regulations 1990).

It was only when he had all of
these in front of him that the man
at the bank would accept an EPA as the real legal document it is. This set of papers is now saved on my system as ‘EPA guidance for banks’ in case I need it again.

The second issue concerned a registered LPA document, and a bank’s reluctance to accept a certified copy. My client called in to reception after an unfruitful meeting with their bank, unhappy with me because the bank had advised her that no one would
ever accept a copy.

I assured my client that whomever she had spoken to at the bank was wrong. I then gave her a copy of page 28 of the guidance document, which deals with evidence of a third-party’s authority. It states: “It would not be reasonable to demand to see the original where a valid certified copy
has been provided, as a certified
copy is legally sufficient proof of
the original.”

These pale into insignificance, however, when I consider the problems I have with certain high-street banks and Court of Protection deputyship orders.

There are some who seem to have their system set up beautifully, and who even differentiate between lay and professional deputies. I would like to give a shout-out to Lloyds, Halifax and TSB for excellent service.

No such accolade for HSBC, in my experience. I sent my sealed office copy order to the account-holding branch and was told that I had to go to my local branch, where I was then told to have a meeting with a business banking specialist – the next available opportunity was in three weeks.

I was given an 18-page form to complete, which asked questions about where the capital for my business was coming from and whether I would be operating abroad at all.

At the meeting, the business specialist seemed confused about why I had been booked to see him, but the customer service liaison assured him this was the “new policy”.

After a long meeting, I was finally handed one very simple mandate to
sign – no 18-page form required. This has been sent to a central team and I am still awaiting statements and a cheque book. This represents poor service for the incapacitated individual whom I am trying to look after, and I will be pursuing a complaint.

As practitioners, we need to make our clients aware that there could be issues, we need to have the documents ready to submit to the banks when these issues do arise, and we must complain and push for more and
better training to get the service
our clients deserve.

Sofia Tayton is a partner and head of care and capacity at Lodders

She writes the regular in-practice article on care and capacity for Private Client Adviser

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