Power of attorney
Do you handle customer complaints about how your financial business registered a power of attorney? Or complaints from those with power of attorney acting on behalf of your customers?
This page will give you an overview of the complaints we can help with and sets out our approach.
On this page
Do you have a complaint that involves power of attorney?
Complaints we deal with
Donors, granters and their attorneys come to us when they’re unhappy because a financial business:
- refused to deal with a named attorney
- dealt with someone they shouldn’t
- didn’t understand the powers an attorney was given
- made it difficult for the attorney to access the donor’s accounts or services
- insisted on being given the original power of attorney document, rather than a certified copy
- was slow to recognise the power of attorney and accept the attorney’s authority
- made an administrative error, such as registering the power of attorney for the wrong account or losing documents
- gave them – as the attorney acting on a consumer’s behalf – the wrong, or not enough, information which meant they made the wrong decision about a product or service.
Rules on power of attorney
A power of attorney is a legal document. It allows one or more people to manage someone else’s financial affairs in the event that they won’t be able to themselves.
- The person making the power of attorney is called the ‘donor’ – or in Scotland, the ‘granter’.
- The person taking on responsibility for financial decisions is called the ‘attorney’.
While a donor or granter still has mental capacity, they can:
- continue to manage their own affairs
- change or cancel their power of attorney.
A power of attorney is no longer valid after the donor or granter has passed away.
Rules on power of attorney also vary across the UK. For more detail about how power of attorney works across the UK, see:
- The Office of the Public Guardian Scotland in Scotland
- The Office for Care and Protection in Northern Ireland
- The Office of the Public Guardian in England and Wales.
Throughout the UK, the donor or granter must register the power of attorney with the financial business they want to instruct.
If the Consumer Duty applies to the case, your business must have provided the same level of support to the attorney as you would to a customer, as set out in PRIN 2A.6.5 of the FCA Handbook.
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If a donor or granter has more than one attorney, they may have specified whether their attorneys should act:
- ‘jointly’ – which means you need permission from all attorneys before you can carry out their instructions, or
- ‘jointly and severally’ – which means it’s up to the attorneys to decide what they prefer, and they may act together or as individuals.
A donor or granter may also have:
- stated they wanted their attorneys to decide some matters jointly but others severally
- specified certain affairs that they don’t want their attorneys to manage at all.
You should check what applies to the case you’re dealing with.
Handling complaints that involve power of attorney before they come to us
Putting a power of attorney in place can be distressing and often comes at a difficult time for the people concerned. In the same way, they may find it upsetting to bring a complaint that involves a power of attorney.
We'd expect you to have treated donors, granters and attorneys, sensitively and sympathetically in all their dealings with your business.
Good complaint handling can repair a relationship, help build trust and confidence in financial services, and give customers a better understanding of your financial products.
You should ensure your complaint handling teams fully understand:
- All relevant requirements and regulations, including the Consumer Duty
- What to send us when we're dealing with a complaint about your business.
The Consumer Duty requires businesses to learn from our decisions and guidance, and apply the same approach where cases present similar facts.
Our decisions database holds all the final decisions we’ve published since 1 April 2013. They're anonymised to protect the identity of complainants but are based on real-life complaints, so will give you a good picture of how we resolve disputes.
Our complaints data will give you an idea of the volume of complaints we receive and resolve, and the proportion that we have upheld in consumers’ favour.
How we resolve complaints that involve power of attorney
We only look at complaints you've had an opportunity to look into first. If the donor, granter or their attorney, is unhappy with your decision – or you don't respond to them within the time limits – they can come to us.
We will want to see that your business has:
- trained your customer-facing staff to deal with situations that involve powers of attorney to ensure they can give customers the correct information
- clearly explained to the donor, granter or their attorney, how to set up a power of attorney on an account
- made sure the donor, granter, or their attorney, understands how to manage an account once a power of attorney is in place
- returned original documents promptly
- acted quickly – there may be a good reason why a power of attorney needs registering urgently – and, if you did have to take time, that you explained why and gave timescales.
We’ll look at the facts and evidence from both you and the donor, granter or attorney. What we consider will usually include:
- relevant laws and regulations for the the donor or granter’s part of the UK
- regulators’ rules in place when the event happened and – if the Consumer Duty applies – whether your business provided the same level of support to the attorney as you would to a customer
- guidance, standards and codes of practice in place at the time of the event
- the powers granted to the attorney in the power of attorney document, and whether the attorney acted in line with these
- whether you treated the donor or granter fairly
- any relevant terms and conditions, marketing materials or other information you gave the donor, granter or attorney.
We may ask additional questions, or for specific information, if need be.
We follow the FCA’s dispute resolution rules (DISP) and will take into account how you’ve tried to put things right.
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It can be difficult to resolve power of attorney complaints when there’s a dispute about a donor’s ability to make decisions. This can happen, for example, when:
- a donor is starting to lose their mental capacity, doesn’t accept this and still wants to make decisions
- donors and attorneys are both giving instructions but are making conflicting requests.
Complaints are more difficult to resolve if they concern events that happened when the donor or granter had mental capacity, but they don’t any longer. In these situations, the donor or granter is unlikely to be able to give their version of events.
Your business must act in the interests of the donor or granter, while balancing their rights against the attorney’s concerns for their wellbeing.
However, it’s often difficult to know whether someone still has the mental capacity to make decisions or get involved in disputes.
Your business can help by making sure:
- the donor’s or granter’s finances don’t get overdrawn
- any regular payments agreed before the donor or granter lost mental capacity continue to be made where possible.
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Sometimes friends or family members – who aren’t appointed as attorneys – may worry that someone is financially abusing the donor or granter. They may complain to your business because they:
- object to the actions of the attorney
- believe another organisation has misled the donor, for example, by mis-selling the donor an investment.
Your business should not act on unproven allegations. However, you do have a duty of care to the donor and should take any allegations seriously, while being aware of data protection.
If you suspect a power of attorney is being abused, contact the relevant authority. That is, the OPG, OPG Scotland or the Office for Care and Protection in Northern Ireland. They can make the right enquiries and will advise you what to do.
Until the allegations are resolved, you may decide not to carry out certain instructions, for example, transferring money from a donor’s – or granter’s – account to an attorney’s account.
Your business can also help by making sure:
- the donor’s or granter’s finances don’t get overdrawn
- any regular payments agreed before the donor or granter lost mental capacity continue to be made where possible.
In both these scenarios, cases can be difficult to assess and we may decide it would be better for the courts to decide the case.
If we uphold the complaint, we'll tell you what you must do to put things right. This may include asking you to compensate the donor or granter for any distress or inconvenience.
However, we don’t usually award compensation to third parties, such as families or attorneys.
More information and help
If you have concerns about mental capacity or the actions of an attorney, you should speak to:
- the Office of the Public Guardian contact page, in England and Wales, or call 0300 456 0300
- the Office of the Public Guardian (OPG) Scotland in Scotland, or call 01324 678300
- the Office for Care and Protection in Northern Ireland, or call 0300 200 7812
For help with disputes about mental capacity, these bodies operate in each region:
- in England and Wales, the Court of Protection can appoint a ‘deputy’ or an ‘appointee’
- in Scotland, a sheriff court can grant intervention orders and guardianship orders
- in Northern Ireland, the Office of Care and Protection can appoint a ‘controller’
Case studies
Power of attorney didn’t entitle Joanne to use her mum’s login
Power of Attorney Banking
An unregistered enduring power of attorney causes problems
Banking Power of Attorney
A bank account is blocked after grandchildren use power of attorney
Banking Power of Attorney
Business Support Hub
Businesses and consumer advisers can contact our Business Support Hub on 020 7964 1400 for information on how we might look at a particular complaint, or for guidance on our rules and how we work.
We also work with businesses and other organisations to help prevent complaints.
