You have been managing your client’s money for many years
when, out of the blue, you are contacted by someone claiming to be your
client’s attorney. The attorney is
brandishing a copy English Property and Financial Affairs Lasting Power of
Attorney (LPA), certified on every
page (as it should be) by the donor (i.e. the giver) of the power. So far, so reassuring. But is it safe for you to act on the
attorney’s instructions? Here’s some food
for thought.
First, an unregistered LPA confers no authority on anyone. Until an LPA is registered at the Office of
the Public Guardian, the attorney cannot act on it.
The OPG has a searchable register of LPAs which, if the
value of the transaction in monetary or emotional terms is particularly
significant for the donor and his family, you might think it prudent just to
double check.
Next check for any restrictions or conditions set out in
the LPA – is the attorney acting within his authority in giving you these
instructions?
If you do these two things, you will be protecting your
position quite well because the donor of a power is bound by any act of his
attorney which is, or appears to be, within the attorney’s authority to carry
out. A disgruntled donor will have to
seek redress from his attorney, not from your professional indemnity policy.
However, what if the donor has revoked the LPA and the
attorney doesn’t tell you? As long as
you had no knowledge that the LPA is now invalid or are aware of any
circumstances that would have terminated the attorney’s authority to act under
the LPA, you have statutory protection. It
may be the case, though, that some basic awareness of the law is assumed, so if
you (or some other part of your business) hear on the grapevine that either the
donor or the attorney is bankrupt, or the donor is dead, and you continue to
take instructions from the attorney, you are taking a risk and may not be able
to recover your fees for acting.
Consider whom your contract should be with. If you are able to contract with the
attorney, perhaps it is an opportunity to include a term that, in giving you
instructions, the attorney is warranting that he has the necessary authority to
do so and will indemnify you if otherwise.
Contracting with your attorney also gives you the opportunity to carry
out your customer due diligence procedures, which may throw up further
information about the attorney that you would want to know.
I have picked on investment managers in this blog for a
reason! The Code of Practice to the
Mental Capacity Act 2007 states that ‘… if the donor
wants the attorney to be able to give authority to a specialist to make
specific decisions, they need to state this clearly in the LPA document (for
example, appointing an investment manager to make particular investment
decisions)’. Make sure your client’s
LPAs are fit for purpose by ensuring that they include an appropriate condition
to this effect. Otherwise it is not
entirely clear where you stand.
The above assumes you
are an adviser based in England and Wales, confronted with an English LPA. Non English powers of attorney and indeed
Enduring Powers of Attorney are quite another matter, but those are stories for
another day.
