Deputies – problems of communicating with regulated institutions

If you are appointed as deputy for someone, you may encounter a number of issues in managing the property and finances of the person who lacks mental capacity. One common problem is being able to communicate with regulated institutions, such as financial service providers and utility companies.

The Office of the Public Guardian, in partnership with the UK Regulators Network (‘UKRN’), and in conjunction with the Department for Business, Energy and Industrial Strategy (BEIS) have recently published joint guidance. The aim of the guidance is to assist policy makers in financial services and utility companies to provide clear and consistent advice for staff, in turn helping customers. This guidance should, therefore in theory, practically help those acting as deputies (and attorneys) to liaise with employees of regulated institutions about the property and finances of the person who has lost capacity.

One particular problem that deputies may encounter is the ability to show that the customer has lost mental capacity. Under the Mental Capacity Act 2005, a person is presumed to have capacity unless proven otherwise. The joint guidance provides comfort for deputies, by making it clear that the court order confirms, from the date of issue, that the customer lacks the requisite mental capacity in order to deal with their own affairs. The company may ask to see the sealed court order. However, depending on the level of risk, an office copy or certified copy may suffice. For example, a utility company is unlikely to deal with vast sums of money and a certified copy may be accepted. Whereas a bank, which may deal with larger sums of money, may ask to see a sealed court order.

Of course, the success of the guidance is dependent on whether companies use it and how they promote it to their staff. It is hoped that the guidance will provide a consistent, straightforward and practical approach for dealing with deputies. However, it remains to be seen how impactful the guidance will be.

Katherine Parker is a Trainee Solicitor in the Private Client department at Barker Gotelee Solicitors.

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