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dealing with difficult situations

Most of the complaints the ombudsman sees involving power of attorney are about lost documents, administration and misunderstandings about what powers the attorney has been granted.

These situations can be very upsetting. But they can often be resolved quickly by following our guidance for businesses and consumers.

Where a complaint involves family disputes or problems involving the donor’s mental capacity, the situation can be particularly complex and distressing. There are rarely any easy answers - and we sometimes decide it’s more appropriate for the issues to be resolved by the courts. We'll also suggest that you speak to the Office of the Public Guardian, who can mediate in these situations. They'll make the necessary enquiries and decide the best course of action.

dealing with complaints about mental capacity

A power of attorney gives someone the authority to make decisions about your finances and legal affairs, and/or your health and care options. You may choose to do this if you’re concerned that you might lose mental capacity in the future - for example, because of dementia or an accident.

However, the donor - the person covered by the power of attorney - is generally still able to manage their own finances, as well as the person they’ve appointed to act on their behalf. This can result in problems if the donor is starting to lose their mental capacity.

On one hand, the attorney - the person acting for the donor - might feel that the donor is no longer able to make their own decisions, and complain that a business shouldn’t be taking instructions from them, particularly when they know their customer is unwell.

On the other hand, the donor is legally entitled to make their own decisions about their own money until it’s formally decided they don’t have the capacity to do so.

Understandably, these situations can present an ethical dilemma. The bank has an obligation to act in the best interests of their customer. But they must also balance the rights of the donor against the attorney’s concerns for their wellbeing. The ombudsman wouldn't expect bank staff to be forced to make these difficult decisions. In situations where financial abuse is suspected, the Office of the Public Guardian can talk you through the options.

Here’s who you'll need to contact in these situations.

During this process, financial businesses can help by making sure the donor’s finances don’t go in to the red - and where possible, any regular payments agreed before the donor lost mental capacity continue to be made.

family disputes and acting in the donor’s best interest

When a donor is unwell, or losing their mental capacity, family members who aren’t appointed as attorneys might sometimes try to make complaints on the donor’s behalf. This could be because they believe that someone has misled the donor - by mis-selling an investment, for example. They might also object to the actions of the attorneys themselves.

Family disputes are difficult to resolve, as banks are only able to provide information to their customers or their official representatives. The same rules apply to people who bring their complaints to us.

Though a financial business shouldn’t act on unproven allegations made by other family members, they do have a duty of care to their customer. So if the business thinks a power of attorney is being abused, they should report it to the relevant authority. They might also decide to refuse to carry out some instructions - like transferring of money from the donor to the attorney’s account.

getting help

  • You can speak to the Office of the Public Guardian if you have concerns about mental capacity or the actions of an attorney by contacting 0300 456 0300
  • If you’re a business dealing with a complaint involving a power of attorney - and you’d like speak to us about sorting things out - contact 0207 964 1400
  • If you’re an attorney and you haven’t been able to sort out your complaint with the financial business, you can get help here or by calling 0300 123 9 123 or 0800 023 4567

useful organisations

  • We're a free service with the power to sort out problems with financial services. You can speak to the ombudsman if you’re unsure what to do with a power of attorney complaint.

  • logo: The Office of the Public Guardian

    The Office of the Public Guardian (OPG) protects people in England and Wales who might not have the mental capacity to make certain decisions for themselves, such as about their health and finance.

  • FCA regulates the financial services industry
    The FCA regulates the financial services industry. They make the rules that banks and other financial businesses must follow, including how to sort out complaints.
  • Alzheimer's Society
    Anyone looking for confidential advice, information and support, can call Alzheimer’s Society’s National Dementia Helpline on 0300 222 11 22. You can also email enquiries to helpline@alzheimers.org.uk or visit alzheimers.org.uk

jargon buster

  • power of attorney
    gives someone the power to manage your finances
  • donor/granter
    the person giving the authority (your customer)
  • attorney
    the person or people who've been given the authority to make decisions about your customer’s finances
  • jointly or severally
    jointly means permission from all the attorneys is needed before you can carry out their instructions
    severally means they can act on their own
  • mental capacity
    the ability to understand and make a decision when it needs to be made is called mental capacity.
  • deputy
    the deputy is appointed by the Court of Protection if the donor can't manage their finances and there's no lasting power of attorney. If you live in Scotland or Northern Ireland there’s a slightly different process.
  • probate
    when somebody dies, the process of sorting out their will is known as probate - you'll have a specific team that deals with probate and other situations where people die without leaving a will

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