Ms C. Peters Rock
Via e-mail
Date: 22 February 2012
Dear Ms Peters Rock
Lasting Power of Attorney
Thank you for your e-mail of 13 February 2012.
The joint committee on the draft Mental Capacity Bill heard evidence regarding abuse of EPAs and the oral evidence sessions, in particular, revealed dissatisfaction with the system of EPAs. There were concerns expressed during evidence presented to the Committee, indicating that financial abuse occurs in approximately 10-15% of cases involving EPAs. Some concern was expressed that unregistered EPAs were being used to take advantage of donors who were beginning to lose capacity, or were continuing to be used even after the donor had lost capacity.
An EPA could be set up at the time when a vulnerable person’s capacity was already failing, but although this was questionable at law, the arrangement may then have been used positively for the benefit of the vulnerable person. On the other hand, EPAs may have been set up entirely correctly, but subsequently used as a mechanism for accessing monies in the context of an exploitative relationship.
Opinions differed as to how the current legislation for EPAs might be changed to improve safety without jeopardising the autonomy allowed by the current system. Years of pressure from mental health and disability charities, along with legal professions, demonstrated the need to improve legislation and make things clearer and safer for those who lack capacity. This resulted in the enactment of the Mental Capacity Act 2005 (MCA), which was fully implemented on 1 October 2007. This also led to the creation of the new Lasting Power of Attorney (LPA), which has enormous benefits in terms of additional safeguards and flexibility compared to EPAs.
The OPG is keen to raise awareness of LPAs and the importance of making one. Our awareness raising strategy has taken a variety of forms, including conferences, talks to stakeholders such as Will Writers, the British Bankers’ Association (BBA) and Ministry of Defence and sending leaflets out to organisations such as the Civil Service Pensions Alliance. The increase awareness of both the existence and importance of LPAs can be measured in terms of the continually growing numbers of applications we receive.
I will now deal with your specific points:
1. The OPG would expect banks and building societies to have clear procedures in place and expect their staff to be fully trained so that they are familiar with situations where customers lack capacity to manage their accounts and are equipped to deal with customers who may lack capacity, and their representatives, including Deputies and Attorneys. However we have no powers to compel banks to comply. We are aware that the BBA is working on these issues.
2. Our Contact Centre was established in 2007 to provide advice and information about the OPG, the Court of Protection (in the early days) and other MCA related issues. This service still remains, albeit the Court now has its own enquiry team.
3. The Public Guardian maintains an LPA register. The register is a database containing information about LPAs and information about cancellation of registrations. There is also an EPA register. You can apply to search the OPG registers by completing the appropriate form. Once we receive the completed application, we can provide information from the register.
The basic information that can be revealed following a first tier search includes: name of donor; name(s) of attorney(s); date of registration and any restriction or changes made to an LPA or EPA.
4. I cannot categorically say that all financial institutions are aware of the Mental Capacity Act (the Act), and its effect in practice.
5. They should all be aware of the MCA.
6. There are no known sanctions that exist at present. As I said in my earlier letter, the OPG works closely with Banks and Building Societies and the BBA to ensure that they are fully aware of LPAs. We have no powers to compel banks to comply with LPAs. We have, on occasions contacted the individual bank’s representative on the BBA Disability and Vulnerable Customers Working Party to enlist their help in resolving specific issues. In some situations it may be possible to bring proceedings under the disability discrimination legislation. If you find that you experience problems using the LPA, please let us know.
We fully recognise the issues you have raised, and we are working hard to increase awareness of LPAs, not only to the public, but all financial institutions. This will reduce the need for intervention by the Court.
I hope this letter helps.
Yours sincerely
Ms M Sullivan
Customer Strategy & Policy Team
' 020 3334 6832
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