Confidentiality when dealing with the customer: disclosure to agents, representatives and third parties: disclosure with ‘power of attorney’: England and Wales
Enduring power of attorney
An enduring power of attorney is made by an individual (known as the donor) before they become incapacitated and is largely used to appoint a third party (the attorney) to look after their property and financial affairs if or when they become unable to do this for themselves. However, whilst the donor remains mentally capable, and with their agreement, an enduring power of attorney can also be used as though it were an ordinary power of attorney (please see IDG30431 of the Information Disclosure Guide for information on ordinary powers of attorney).
The Mental Capacity Act 2005, which came into effect in October 2007, replaces enduring powers of attorney with Lasting Powers of Attorney. It will still be possible for attorneys to register enduring powers of attorney that were in existence prior to 1 October 2007. You may therefore find these documents being presented to you for some years after October 2007.
Procedure to follow
Where the donor is not incapacitated
If you are presented with an enduring power of attorney that is not registered with the Office of the Public Guardian, you must check with the attorney that the donor is not incapacitated and that the donor has agreed that the power can be used as though it were an ordinary power of attorney. Sometimes, as an additional safeguard, donors have an instruction written into the document indicating that the power cannot be used until a certain event has occurred (for example, when a medical practitioner has declared them to be mentally unfit). Hence, you may wish to check the document to ensure it contains no such instruction.
Once you are satisfied that the donor has consented to the use of the power before their incapacitation, you should then check that the document has been properly certified; this should be in accordance with the instructions contained at IDG30431 for ordinary powers of attorney. You should take a copy of the document for your file.
You may then pass to the attorney information that would have been available to the donor under the terms of the power of attorney. However, you should remind the attorney that if the donor becomes incapacitated they must register the enduring power of attorney with the Office of the Public Guardian and forward either the original document or an appropriately certified copy to us for verification.
You must remember that any enduring power of attorney that is dated after 30 September 2007 has no validity whether or not the donor is incapacitated. In this event the document should be returned to the attorney with a request that they let us see a duly registered lasting power of attorney, as is required by the Mental Capacity Act 2005.
Where the donor is incapacitated
Once incapacitation becomes evident, the attorney must register the enduring power of attorney with the Office of the Public Guardian responsible for England & Wales, (for more details on the Public Guardian website . In all cases, you should ask to see either the original or an appropriately certified copy of the registered document before you disclose any information.
Pre-October 2007: Enduring powers of attorney that were registered before October 2007 will contain the stamp of the Court of Protection, and the Public Guardianship Office’s stamp showing the date of registration. (Note: prior to the introduction of the Mental Capacity Act 2005 the Office of the Public Guardian was known as the Public Guardianship Office and any documents registered before October 2007 may contain this marking). Any changes to this document must have been made prior to registration and any amendments will have been annotated by the Public Guardianship Office to show they have been approved. The signature of the donor should be present at the bottom of the document.
Post-October 2007: All properly registered documents will bear the Office of the Public Guardian’s mark - this will be in the form of security stickers or holograms - the date the document was registered will also be shown. Any amendments will have been made before registration and the Office of the Public Guardian will annotate any changes to show they have been seen and approved. The donor’s signature should appear at the end of the document.
Once you are satisfied that the attorney has the authority to act on the donor’s behalf in respect of their financial affairs, you should take a copy of the documentation for your file and may then provide to the attorney any information that could have been provided to the donor.
Lasting power of attorney
From 1 October 2007 the Mental Capacity Act 2005 replaces enduring powers of attorney with a lasting power of attorney.
A lasting power of attorney is primarily used to cover periods of physical or mental incapacity and can be in respect of property, financial, health and welfare matters. It will be possible for a donor to appoint a number of attorneys to cover different aspects of their affairs.
To have effect, the lasting power of attorney must be registered with the Office of the Public Guardian; this can be done before incapacitation by the donor or after incapacitation by the attorney. Note: Unlike enduring powers of attorney, there are no circumstances in which a lasting power of attorney can be used without being registered with the Office of the Public Guardian.
Course of action
The lasting power of attorney must be registered with the Office of the Public Guardian to be valid. If it is not registered the attorney has no authority to access the donor’s HMRC data. You should therefore ensure that you see either an original copy of the document or an appropriately certified copy, to check that it has been validated by the Office of the Public Guardian and that it shows the official date stamp of registration; you should then take a copy of the document for your file and note on it that you have seen the original or an appropriately certified copy.
The power of attorney will clearly set out what authority the attorney has and any restrictions placed on those powers. Any amendments to the document must have been made before it was registered and will be annotated by the Office of the Public Guardian to indicate their approval. The donor’s signature should appear at the end of the document.
You must carefully read the document as under the Mental Capacity Act the donor can appoint a number of attorneys to deal with various aspects of their affairs, for example, a solicitor to deal with property and finances and a family member for personal welfare. You must therefore be satisfied that any registered document presented to you allows the attorney access to the donor’s HMRC data. Once you are clear that the attorney is entitled to the donor’s HMRC data, you can then disclose to them any information that could have been disclosed to the donor.
If you have any doubts about the authenticity of the documents presented to you, do not disclose any information until you have taken further advice from your Data Guardian.
To see examples of validly registered Enduring Powers of Attorney or Lasting Powers of Attorney on the Public Guardian website.
Court of Protection
Where a person becomes incapacitated but there is no enduring or lasting power of attorney in place, the Court of Protection has the power to take responsibility for that person’s affairs and make decisions on their behalf. Under the Mental Capacity Act 2005 the Court’s powers extend to property and financial matters, as well as personal welfare issues such as healthcare. The Court will normally deal with these decisions directly or by appointing a deputy or deputies to oversee the incapacitated person’s affairs. Note: Receivers appointed before the commencement of the 2005 Act are to be treated as deputies.
Approach to take
When appointing a deputy or deputies, the Court of Protection will make an order setting out the appointment(s) and the specific powers and scope of authority under which the deputy or deputies can act. These orders will be authenticated by embossed Court of Protection stamps and may state the duration of the order (decisions about the length of time an order should run will be taken on a case by case basis). You must ask to inspect either the original order or an appropriately certified copy. When inspecting the order you must take care to satisfy yourself that you are dealing with the correct deputy and that they have the authority to receive HMRC data; once this is done, you should take a copy of the order for your file and should note on it that you have seen the original or an appropriately certified copy. You may then provide the deputy with any information to which the incapacitated person would normally have been entitled.
If you have any doubts about the authenticity of documents presented to you, you should not provide any HMRC data and should seek advice from your Data Guardian.