As a result of the British Banking Association (BBA) Guidelines updated earlier this year, it appears that the banks are becoming stricter in the situation where one joint account holder loses capacity.
The guidance note from the BBA states that if you are a joint account holder and the other joint account holder loses mental capacity, then you do not have the right to access the account just because you are the other joint account holder. If one account holder loses capacity then either a Lasting Power of Attorney (or Enduring Power of Attorney as the case may be) or Deputyship order from the Court of Protection is needed for the other account holder to continue to access the account.
The content of the guidance note is not new; indeed this was already the position and is the natural conclusion given the need to protect the assets of those who lack capacity. However the guidance note appears recently to have been strictly followed by the banks, with the result that some joint accounts are being frozen when one party loses capacity, and are not ‘unfrozen’ until a Lasting Power of Attorney or court order is produced.
When we talk to clients it is apparent that there is a mistaken belief that a Lasting Power of Attorney is not required if all assets (for example between husband and wife) are held jointly. However the BBA guidelines and the actions of the banks demonstrate that quite the opposite is true.
If you do not have Lasting Powers of Attorney in place and if your partner loses capacity, not only may this leave you unable to access your partner’s funds, but also your own. This highlights the importance of everyone considering setting up a Lasting Power of Attorney.
- Preparing and Registering a Property and Financial Affairs Lasting Powers of Attorney
- Preparing and Registering a Health and Welfare Lasting Powers of Attorney
- Help for dependents of people without Lasting Powers of Attorney
- General (Ordinary) Powers of Attorney
- Advice re existing Enduring Powers of Attorney and Registration of existing Enduring Powers of Attorney
- Obtaining mental capacity reports where appropriate
Providing advice where it is not possible to set up a Lasting Power of Attorney due to lack of capacity
- Advice re duties and powers of Attorneys
- Advice re disputes relating to Lasting Powers of Attorney
- Applications to the Court of Protection including Deputyship applications
“If it had not been for the EPA I would have had real problems even discussing my mother’s affairs with banks, investment companies, government departments and care providers, much less paying her bills from her account.
“Being able to supply copies of the EPA to the various parties meant they would speak to me and act on my instructions. Without it I would have had to pursue a long, complicated and expensive legal process – at a very difficult time personally.
“I would absolutely recommend planning ahead and making an LPA. It could make a huge difference to your loved ones.”