A client has a Lasting Power of Attorney for Financial and Property Affairs, and whilst it is registered at the OPG it has not yet been registered with the Bank. The client now wishes to make the bank account joint with their daughter however the Bank is advising they are not allowed to do so as there is a LPA in place. The attorney is also the daughter. The Bank has advised this is due to the rules by the Court of Protection. Is anyone else aware of this and if so, are they able to confirm where it states so?
If it is the attorney who has instructed the bank, I can understand this raising a “red flag”. Whilst I have not seen it, I can well understand the Court of Protection/OPG waning against accepting instructions from an attorney for the transfer of assets into their name.
If it is the donor client who has instructed the bank, the response is surprising and I suggest the bank be asked to either provide a copy of the “rule” to which it refers (or provide a link to the appropriate web page). In this scenario, I suspect there has been a mis-reading of the “rule”.
Thank you Paul. It was the Donor and the sole account holder making this request. I too was surprised by the response. Further enquiries with the Bank in question will be raised.
Assuming the Donor still has capacity the bank should accept his instructions. The bank probably still think registration only happens when capacity is in doubt or has been lost, per the old EPA.
OPG Guidance LP14 at 3.4 states:
"The law says property and finance attorneys should usually keep the donor’s finances separate from their own or anyone else’s. This is to avoid confusing the donor’s financial affairs with your own.
Sometimes there’s a good reason not to keep the donor’s finances separate. For example, you may be your wife or husband’s attorney and have held a joint account for many years."
It’s certainly much wiser to keep accounts separate - unless as the guidance states that there is a good reason not to do so.
The Mental Capacity Act 2015 has a code of practice which attorneys and deputies must follow. The code of practice can be found at:
Paragraph 8.67 notes that a donor’s money must be kept separate from an attorney’s or deputy’s money and having an account in joint names would entitle a donor or attorney to deposit their money in the account and contravene the regs or to purport that the money already in the account is to some extent the donors or attorneys money.
Hope this helps. The code of practice can be a very useful tool.
Cumbria County Council
The Code of Practice is directed at attorneys and deputies.
It is not also intended to limit how donors themselves might wish to manage or arrange their financial affairs. If so, then it would prohibit, say, a donor making gifts to all of their children if one or more of them was also their attorney.
Whilst the Code sets out good/best practice, it is not intended to be a straightjacket for all situations.
The key point here seems to be whether the Donor still has capacity. As has been pointed out, registration is not an indicator of lack of capacity, and the fact that the LPA has not yet been registered with the Bank, and the presumption of capacity under the Act, suggest to me the Donor is still OK. In that case, I’d be inclined to vote with my feet and move to another Bank.
Like everyone else, I think the person at the bank is making it up.
However, what I don’t understand is what benefit will accrue if the bank account is converted into a joint account. If the donor loses capacity, once the bank is informed of that fact the daughter will be prevented from accessing the bank account until the LPA is produced to the bank. So why not produce the LPA to the bank now? The daughter will then be able to access the bank account immediately, even if the donor subsequently loses capacity.
Coles Miller Solicitors LLP
You may wish to consider:
Lodging formal complaint with bank
Then if the bank does not accept they are wrong in refusing to open joint account request from donor because of LPA referring complaint on to the Ombudsman.
Andrew M Mortimer