Lasting Power of Attorney - accessing my mum's bank accounts

jonesMUFCforever

agrinnall wrote: »

As you've been through the process I'm sure you are right about this, but I would imagine that if a legal challenge was brought by an attorney they would be successful in overturning any such restriction. Surely the point of LPA is that once it has been registered with the OPG the attorney(ies) then have full power to act as if they were the person giving the power of attorney, as long as they act within the law and according to the terms of the LPA - for instance, this is taken from the Property & Financial Affairs LPA:

Your attorneys can make decisions for you
as soon as this lasting power of attorney is registered – both when
you have mental capacity and when you lack mental capacity,
unless you put a restriction in this lasting power of attorney.

I don't see that the bank is in any position to put additional restrictions in place than were already there when the account holder was operating the account themselves.

You seem to forget that the bank has terms and conditions which you have to abide with if you want to continue banking with them. Remember any bits of paper you signed when registering the Power?

dzug1

agrinnall wrote: »

I don't see that the bank is in any position to put additional restrictions in place than were already there when the account holder was operating the account themselves.

I'd say they are in every position. Their primary responsibility is to the account holder and they have a duty of care in respect of that. How they choose to exercise that is up to them - restricting the number of cards on the account or internet access is one way of doing so. A blunt instrument maybe, but I can see risks that it counters.

I wonder if mounting a legal challenge to such restrictions would be a legitimate use of the donor's funds or whether it would be the personal responsibility of the donor?

agrinnall

dzug1 wrote: »

I'd say they are in every position. Their primary responsibility is to the account holder and they have a duty of care in respect of that. How they choose to exercise that is up to them - restricting the number of cards on the account or internet access is one way of doing so. A blunt instrument maybe, but I can see risks that it counters.

I wonder if mounting a legal challenge to such restrictions would be a legitimate use of the donor's funds or whether it would be the personal responsibility of the donor?

We'll have to agree to disagree then, because I think that once the LPA is registered the attorney is regarded as being the account holder, so it is up to them to decide how to operate the account. Should the bank then place additional restrictions that make it impossible or impractical for the attorney to act in the donor's interest then it seems to me that a legal challenge might be an acceptable use of funds (although perhaps the OPG would be able to make a ruling that would be binding on the bank). Fortunately I haven't had to act as an attorney yet on the LPA that I am named in, and hopefully I won't ever be faced with such issues.

jonesMUFCforever

agrinnall wrote: »

We'll have to agree to disagree then, because I think that once the LPA is registered the attorney is regarded as being the account holder, so it is up to them to decide how to operate the account. Should the bank then place additional restrictions that make it impossible or impractical for the attorney to act in the donor's interest then it seems to me that a legal challenge might be an acceptable use of funds (although perhaps the OPG would be able to make a ruling that would be binding on the bank). Fortunately I haven't had to act as an attorney yet on the LPA that I am named in, and hopefully I won't ever be faced with such issues.

What if it could be shown that the attorney was helping themselves to the account holders money - do you say that the bank should do nothing?

Mojisola

agrinnall wrote: »

We'll have to agree to disagree then, because I think that once the LPA is registered the attorney is regarded as being the account holder, so it is up to them to decide how to operate the account.

Exactly. Once I registered the POA for my father with Barclays - which was very straightforward - they issued a new chequebook that says "Ms Mojisola, attorney for Mr XXXXXX".

securityguy

jonesMUFCforever wrote: »

What if it could be shown that the attorney was helping themselves to the account holders money - do you say that the bank should do nothing?

That's a matter for the court of protection, not for the bank to act as judge and jury. The bank is protected from any legal action by the PoA. The court of protection is responsible for the interests of the donor, not the bank.

jonesMUFCforever

securityguy wrote: »

That's a matter for the court of protection, not for the bank to act as judge and jury. The bank is protected from any legal action by the PoA. The court of protection is responsible for the interests of the donor, not the bank.

I would suggest the bank has a duty of care to its customer (believe it or not!)

ylesia

jonesMUFCforever wrote: »

I would suggest the bank has a duty of care to its customer (believe it or not!)

This is not what we were told by our solicitor. When my mum instructed the solicitor to give me continuing power of attorney, she had to attend an interview and it was clearly explained to her that she was allowing me full control of all her finances and health matters eg. I could refuse to let her cut her hair (not that I ever would!)

I had to agree to only act in my mums best interests and to only do what 'she would do' in each circumstance. My mum still has capacity and could organise her finances but she would really struggle to make the right decisions. I do everything for her with full knowledge of all the organisations, the bank has no interest in what I get up to, they have the POA registered.

However I am liable to investigation at any point and I keep records of what I do and why. This is possibly overkill but the solicitor put the fear of God in to me (and rightly so) about what could happen if I abuse the position.

I am confused about the OP saying that she applied for the POA, we were told that it is the person granting the POA that had to instruct the creation and nominate who they wanted to act and they had to do this face to face with the solicitor. The person being appointed could not 'apply'.

jonesMUFCforever

They could if it is under the new rules of attorneship rather than a POA.
It would need to go through court of protection.

ylesia

jonesMUFCforever wrote: »

They could if it is under the new rules of attorneship rather than a POA.
It would need to go through court of protection.

Ah, ok. This obviously wasn't relevant for us as my Mum was able to instruct and articulate why she wanted me to take care of things for her. Makes sense there are other options.