IDG30432 - Confidentiality when dealing with the customer: disclosure to agents, representatives and third parties: disclosure with ‘power of attorney’: England and Wales
Enduring power of attorney
An enduring power of attorney is made by an individual (known as the donor) before they become incapacitated and is largely used to appoint a third party (the attorney) to look after their property and financial affairs if or when they become unable to do this for themselves. However, whilst the donor remains mentally capable, and with their agreement, an enduring power of attorney can also be used as though it were an ordinary power of attorney (please see IDG30431 of the Information Disclosure Guide for information on ordinary powers of attorney).
The Mental Capacity Act 2005, which came into effect in October 2007, replaces enduring powers of attorney with Lasting Powers of Attorney. It will still be possible for attorneys to register enduring powers of attorney that were in existence prior to 1 October 2007. You may therefore find these documents being presented to you for some years after October 2007.
Procedure to follow
Where the donor is not incapacitated
If you are presented with an enduring power of attorney that is not registered with the Office of the Public Guardian, you must check with the attorney that the donor is not incapacitated and that the donor has agreed that the power can be used as though it were an ordinary power of attorney. Sometimes, as an additional safeguard, donors have an instruction written into the document indicating that the power cannot be used until a certain event has occurred (for example, when a medical practitioner has declared them to be mentally unfit). Hence, you may wish to check the document to ensure it contains no such instruction.
Once you are satisfied that the donor has consented to the use of the power before their incapacitation, you should then check that the document has been properly certified; this should be in accordance with the instructions contained at IDG30431 for ordinary powers of attorney. You should take a copy of the document for your file.
You may then pass to the attorney information that would have been available to the donor under the terms of the power of attorney. However, you should remind the attorney that if the donor becomes incapacitated they must register the enduring power of attorney with the Office of the Public Guardian and forward either the original document or an appropriately certified copy to us for verification.
You must remember that any enduring power of attorney that is dated after 30 September 2007 has no validity whether or not the donor is incapacitated. In this event the document should be returned to the attorney with a request that they let us see a duly registered lasting power of attorney, as is required by the Mental Capacity Act 2005.
Where the donor is incapacitated
Once incapacitation becomes evident, the attorney must register the enduring power of attorney with the Office of the Public Guardian responsible for England & Wales, (for more details on the Public Guardian website . In all cases, you should ask to see either the original or an appropriately certified copy of the registered document before you disclose any information.
Pre-October 2007: Enduring powers of attorney that were registered before October 2007 will contain the stamp of the Court of Protection, and the Public Guardianship Office’s stamp showing the date of registration. (Note: prior to the introduction of the Mental Capacity Act 2005 the Office of the Public Guardian was known as the Public Guardianship Office and any documents registered before October 2007 may contain this marking). Any changes to this document must have been made prior to registration and any amendments will have been annotated by the Public Guardianship Office to show they have been approved. The signature of the donor should be present at the bottom of the document.
Post-October 2007: All properly registered documents will bear the Office of the Public Guardian’s mark - this will be in the form of security stickers or holograms - the date the document was registered will also be shown. Any amendments will have been made before registration and the Office of the Public Guardian will annotate any changes to show they have been seen and approved. The donor’s signature should appear at the end of the document.
Once you are satisfied that the attorney has the authority to act on the donor’s behalf in respect of their financial affairs, you should take a copy of the documentation for your file and may then provide to the attorney any information that could have been provided to the donor.
Lasting power of attorney
From 1 October 2007 the Mental Capacity Act 2005 replaces enduring powers of attorney with a lasting power of attorney.
A lasting power of attorney is primarily used to cover periods of physical or mental incapacity and can be in respect of property, financial, health and welfare matters. It will be possible for a donor to appoint a number of attorneys to cover different aspects of their affairs.
To have effect, the lasting power of attorney must be registered with the Office of the Public Guardian; this can be done before incapacitation by the donor or after incapacitation by the attorney. Note: Unlike enduring powers of attorney, there are no circumstances in which a lasting power of attorney can be used without being registered with the Office of the Public Guardian.
Course of action
The lasting power of attorney must be registered with the Office of the Public Guardian to be valid. If it is not registered the attorney has no authority to access the donor’s HMRC data. You should therefore ensure that you see either an original copy of the document or an appropriately certified copy, to check that it has been validated by the Office of the Public Guardian and that it shows the official date stamp of registration; you should then take a copy of the document for your file and note on it that you have seen the original or an appropriately certified copy.
You can check the status of an attorney and view details of the lasting power of attorney by reviewing the lasting power of attorney paperwork or by checking the details on the Office of the Public Guardian’s ‘view a lasting power of attorney’ service on GOV.UK whilst the attorney is on the phone.
Verifying lasting power of attorney status paper documents
If you’re checking paperwork, you should ensure that you see either an original copy of the document or an appropriately certified copy in accordance with s.3 of the Powers of Attorney Act 1971, to check that it has been validated by the Office of the Public Guardian and that it shows the official date stamp of registration; you should then take a copy of the document for your file and note on it that you have seen the original or an appropriately certified copy.
The lasting power of attorney will clearly set out what authority the attorney has and any restrictions placed on those powers. Any amendments to the document must have been made before it was registered and will be annotated by the Office of the Public Guardian to indicate their approval. The donor’s signature should appear at the end of the document.
Verifying lasting power of attorney status using the Office of the Public Guardian’s online service
You can verify some lasting powers of attorney for England and Wales, registered on or after 1 January 2016 using the Office of the Public Guardian’s [‘view a lasting power of attorney’ service](View a lasting power of attorney - GOV.UK (www.gov.uk)) on GOV.UK whilst the attorney is on the phone or on webchat.
The attorney will generate and provide a 30-day time limited access code. Access codes are 13 characters long and start with a V.
For example, V-AB12-CD34-EF56.
To view details of the lasting power of attorney from the Office of the Public Guardian’s live register, you should input this code into the [‘view a lasting power of attorney’ service](View a lasting power of attorney - GOV.UK (www.gov.uk)) along with the donor’s surname.
If a lasting power of attorney is found on the live register, the service will display a summary page. Once you have confirmed that this is the correct lasting power of attorney and entered HMRC into the organisation field on the service you’ll be able to see full details of the lasting power of attorney online. Business as usual, telephony/webchat security must also be passed before we can disclose any information to a customer.
We can accept the LPA via the online service as authority if:
· the caller passes usual security checks (please liaise with your line of business for any advice on the relevant procedures for security checks as information policy cannot provide advice on this)
· the LPA is for (or includes) Property and Finance.
· the LPA summary page displays information matching the what the caller has provided.
· the page containing the LPA has a green banner and is listed as valid. LPAs with a red banner are cancelled LPAs and cannot be accepted
· the caller is listed as an attorney on the LPA.
· any LPA instructions do not prevent discussing with the attorney
· for LPAs to be used once the donor has lost capacity, the attorney verbally confirms that’s the case.
You should only accept a lasting power of attorney if you have used the service yourself to view the lasting power of attorney online whilst the attorney is on the phone/webchat. You must not accept print outs from the service to verify a lasting power of attorney.
As the access codes are only active for 30 calendar days, HMRC will not accept these by post and can only use these on the telephone or via webchat.
You should update your line of business/head of duty records once you have verified the lasting power of attorney status. You may download a copy of the online LPA for your records should your line of business require.
The lasting power of attorney will clearly set out what authority the attorney has and any restrictions placed on those powers. The donor’s details should appear on the online lasting power of attorney.
If you have any doubts about the authenticity of the lasting power of attorney online or the attorney’s authority to act on the donor’s behalf, you should ask the attorney to provide paper copies of the lasting power of attorney.
If you need any advice on the checks needed on lasting powers of attorney please liaise with Operational Excellence
Both for LPAs checked online and LPA with paperwork checked, you must carefully read the document as under the Mental Capacity Act the donor can appoint a number of attorneys to deal with various aspects of their affairs, for example, a solicitor to deal with property and finances and a family member for personal welfare. You must therefore be satisfied that any registered lasting power of attorney allows the attorney access to the donor’s HMRC data. Once you are clear that the attorney is entitled to the donor’s HMRC data, you can then disclose to them any information that could have been disclosed to the donor.
If you have any doubts about the authenticity of the documents presented to you, do not disclose any information until you have taken further advice from your Security & Information Business partner in the first instance, and for specific advice on Powers of Attorney documents please liaise with Operational Excellence[FR(S4] .
To see examples of validly registered Enduring Powers of Attorney or Lasting Powers of Attorney on the Public Guardian website.