Power of attorney

People can make a power of attorney if they’re worried they won’t be able to manage their own financial affairs in the future. It gives authority to one or more other people to manage their finances.

If someone has already lost the ability to make their own decisions and a power of attorney hasn’t been put in place, the Court of Protection can appoint a deputy to make these ongoing decisions for the person.

It’s distressing when a person loses their mental capacity, so when we get this type of complaint, those involved can often be very upset. We aim to settle these complaints as fairly and sensitively as possible.

What is power of attorney?

A power of attorney is a legal document that gives a third party or representative the authority to make financial decisions for someone else. It’s usually drawn up when someone can’t or doesn’t want to continue to make their own financial decisions.

The person making the power of attorney is called the ‘donor’ – or in Scotland, the ‘granter’.

The person taking on responsibility is called the ‘attorney’.

While a donor 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A power of attorney is no longer valid after the donor has passed away.

What attorneys can and can’t do

Attorneys agree to act in the donor’s best interests – they don’t need any legal experience to do this.

Having power of attorney doesn’t mean the attorney will be able to manage the donor’s finances immediately. First, they need to register the power of attorney with the financial business they want to give instructions to.

If a donor has chosen to have more than one attorney, they may have specified whether their attorneys may act either ‘jointly’ or ‘jointly and severally’.

‘Jointly’ means permission from all attorneys is needed before you can carry out their instructions.

‘Jointly and severally’ means attorneys can act together or on their own – it’s up to attorneys to choose how they want to act.

A donor may 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

Types of complaints we see

We see complaints around businesses:

• refusing to accept a power of attorney or to deal with a named attorney
• dealing with someone they shouldn’t
• not understanding the powers an attorney has been given
• insisting on having the original power of attorney document rather than a certified copy
• being slow to process the power of attorney on their system
• registering the power of attorney for the wrong account
• losing documents

A bank or other business can also be appointed as an attorney and we sometimes see complaints about how they’ve acted.  We can consider these complaints but only if the business is acting as an attorney on an activity we cover such as current account banking. You can read a list of compulsory and voluntary activities we cover, if you need to check.

What we look at

There are different laws in England and Wales, Scotland and Northern Ireland so we need to check that the business has acted within the law for the relevant region.

We also check that the business has acted correctly according to the powers given in the power of attorney document. If we find the business has allowed the attorney to do something they didn’t have permission for, we’ll usually tell the business to give compensation for any financial loss to the donor.

Sometimes, an attorney tells us they think something’s gone wrong. For example:

• an investment shouldn’t have been made
• certain transactions weren’t authorised

We understand that if the donor has already lost mental capacity, complaints like this can be difficult for both us and the business to investigate, because the donor may no longer be able to give their version of events. However, we’ll look at all the evidence we can find to reach a fair decision in these situations.

We know that people can often be distressed bringing power of attorney complaints, so we’ll check that the business has treated the customer in a sensitive and sympathetic way, for example, if a business has:

• trained their customer-facing staff to deal with people using powers of attorney
• clearly explained to customers how to set up power of attorney on an account
• made sure customers understand how finances are managed on these accounts
• caused delays or given poor service which affected the donor or attorney

If we find in the donor or attorney’s favour, we’ll ask the business to put things right.

We know that businesses need to use their judgement carefully and balance the needs of attorneys whilst also carrying out the donor’s wishes. For this reason, we sometimes agree that a business has acted appropriately and we won’t uphold a complaint. For example, we see complaints where a business refuses to accept a cheque written by the attorney, transferring money from the donor’s account to their own. Without evidence that the funds will be used for the donor’s benefit, we might agree that business’s decision is reasonable.

If a power of attorney has been abused, we’ll check the business reported the matter to the relevant authority for their region, such as the Office of the Public Guardian.

What we don’t usually uphold

There are certain complaints we don’t usually uphold. For example, we receive complaints about the extra security checks that donors and attorneys go through which can often add more stress. However, a business needs to have security in place and we wouldn’t usually tell them to change this.

Businesses can offer different services on power of attorney accounts to their standard accounts. For example, online banking is usually available on a standard account but may not be available to a donor. We wouldn’t usually tell the business to do something different because businesses have the right to decide what services they provide. However, we’ll always check if a business has given clear information so that donors or attorneys can make informed choices.

Disputes can arise around the donor’s mental capacity, particularly when the donor still has some capability to make their own decisions. For example, a donor might disagree with something an attorney does within their legal powers. We wouldn’t expect a business to get involved in a complex family dispute and we wouldn’t usually make decisions on these issues either, so we may decide that this would be better dealt with by the Office of the Public Guardian or by the courts. You can read further guidance if this applies to you.

How to complain

If a donor still has mental capacity, they can:

• make a complaint to us themselves
• ask someone else to complain for them – this doesn’t have to be the attorney (they can name any person they wish on the complaint form) and we don’t need to see the power of attorney document

Once the donor has lost capacity, only the attorney can make a complaint. In this scenario, we’ll need to see a copy of the power of attorney document to make sure the power has been granted. We don’t need the original or a certified copy. We don’t usually find any problems but need to check:

• whether the power of attorney is in the right form
• that it hasn’t lapsed or been revoked
• that the donor had capacity to make it
• that it’s been registered, where appropriate

If we do take on the case, the attorney has the same right as any other customer to ask someone else to deal with it for them. But it’s unlikely that we’d pay the fees of a solicitor or any other third party that the attorney instructs to do this.

Find out how you can make a complaint to us.

Putting things right

If we uphold a complaint against a business, we’ll make sure that the donor hasn’t lost out as a result of the business’s mistake. In some cases, we’ll award compensation to the donor.

We know that donors can have more than one type of power of attorney, outside of their financial affairs, such as health and welfare. We’ll assess if the business’s mistake has had any impact on their wider affairs.

We usually don’t award compensation for distress and inconvenience to any third party such as a family member or attorney acting under the power of attorney. However if we think a donor has experienced extra distress seeing their attorney distressed, we may award additional compensation to the donor.

Resources

You can read further information on GOV.UK about power of attorneys:

• Make, register or give a power of attorney
• Lasting power of attorney: acting as an attorney