Chapter 5: AFTER AUTHORITY HAS BEEN GRANTED
BEING A WITHDRAWER
5.1 Being a withdrawer carries with it certain duties which are set out as follows.
Duty of Care
- A withdrawer or other person acting under the Act is held at common law to owe a duty of care to the person with incapacity. He/she must act with due skill and care in exercising his/her powers as a withdrawer. A professional person acting for an organisation as a withdrawer must demonstrate the skill and care that would be expected of a reasonably competent member of that profession.
Fiduciary duty (position of trust)
- A person authorised under the Act has what is known as a 'fiduciary duty' to the adult. This means that you are in a position of trust with respect to your authority to access the adult's funds. If you abuse your position, for example by using the adult's funds for your own benefit rather than that of the adult, you may be liable to make good the adult's losses. If you live in the same household as the adult, the use of the adult's funds for household expenses which benefit you as well as the adult will not count as abuse if in the whole circumstances it is reasonable (for example if it continues existing domestic arrangements). If you act reasonably and in good faith, you will not be liable for any breach of fiduciary duty. As part of your position of trust, you have a general duty to keep the adult's affairs confidential.
Duty to apply the principles
- The principles should always be applied by withdrawers when faced with important decisions. They provide a helpful guide when you are unsure of what to do. They also provide the 'standard' against which the actions of withdrawers or others appointed with powers under the Act may be judged. Chapter 1 at paragraph 1.8 outlines the principles to be followed.
RECEIVING YOUR CERTIFICATE OF AUTHORITY
5.2 When you receive your certificate of authority it is advisable to arrange for an appointment with the bank or building society where you set up the designated account.
A fundholder will need to be satisfied that you are the withdrawer named in the certificate. You should always carry a suitable form of identification with you to ensure this does not cause a difficulty. The fundholder may take a little time to set up the procedures you want.
Managing the adult's funds
5.3 The certificate of authority will give you permission to open an account called a designated account. This account should be in your own name on behalf of the adult or in the name of the adult but to be operated by yourself. Different fundholders have different methods of recording this information. Your certificate will allow regular funds from the adult's current account to be deposited into this account and from there you will have direct access to use the funds to pay for goods and services but only for the purposes as identified in your application. The designated account which you will open and operate can be set up in any bank or building society. If you wish to make use of internet or telephone banking for the designated account you should discuss this with the fundholder. You may set up direct debits and/or standing orders from this account. The account cannot be used for the receipt or expenditure of funds other than those detailed in your certificate of authority. Chapter 3 provides further information.
5.4 As the withdrawer, you may receive a cheque book, cheque guarantee card and/or any cash withdrawal card in relation to your operation of the designated account. This will depend on how the fundholder operates the particular account. You must keep an accurate record of expenditure as well as retaining all bank statements. Bank statements are accessible through accounts operated via internet banking.
5.5 It is often difficult to estimate fully for an adult's needs so if you find that you have not estimated enough to cover the adult's costs, or an unexpected expense, such as an urgent repair bill has arisen, you should apply to the Public Guardian for a variation of your withdrawal certificate using form ATF(5).
5.6 The Public Guardian has power to authorise the transfer of funds between any accounts in the sole name of the adult and certain other accounts. Chapter 2 provides further information. However, because every situation is different and sometimes complex, it is best to discuss any proposals you may have with a member of staff at the OPG.
5.7 As withdrawer, you may not delegate your authority to operate the designated or any other account for which you have responsibility. If you are unable to continue to act as withdrawer, other arrangements will require to be put in place, for example addition of a joint withdrawer or nomination of a reserve to act while you are unable to do so. Chapter 2 provides further information.
5.8 None of the accounts over which you have authority must be allowed to become overdrawn. If this happens then the fundholder may recover the overdrawn amount and any charges or interest incurred as a result of the account(s) going into the 'red' from you personally. If you suspect that this may happen you should seek immediate advice from staff at the OPG.
5.9 You, as the withdrawer, must keep records of what you have done with the adult's funds over which you have control. However, you will not be expected to keep receipts for every single item, for example, newspapers and general household expenditure, but you should keep receipts for larger items of expenditure. The Public Guardian expects that where you purchase items in excess of £50 you should keep the receipt.
5.10 Arrange with the fundholder to receive regular statements for all the accounts over which you have control and you should keep these. If you have set up standing orders/direct debits to pay for certain items this will be evidenced from the bank statements. You may find it useful to record expenditure using the booklet 'A guide for withdrawers' which will be sent with your certificate of authority.
5.11 You are accountable to the Public Guardian who can ask you to provide your records and bank statements, etc., at any time. You should keep receipts for items costing £50 and over, and bank statements, etc. for at least one year after your authority expires and ideally for up to five years in the event there may be some enquiry about the way you have handled the funds. The Public Guardian can also ask the fundholder to produce details of accounts authorised under Access to Funds and any other relevant information.
INQUIRIES AND INVESTIGATIONS
5.12 The Public Guardian makes random checks on how the access to funds scheme is working and may contact you. However, if the OPG receives a complaint then an inquiry will be made.
If there is a complaint against you
5.13 The Public Guardian will review all complaints and will, if considered necessary, investigate the way withdrawers are carrying out their functions. For example, if someone with an interest was concerned that a withdrawer was misusing an adult's funds, perhaps to buy things which were solely for the withdrawer's use, he or she could inform the Public Guardian of his or her concerns.
The Public Guardian will contact you about any complaint received and ask you for your version of the facts. If you have acted in accordance with the authorisation from the Public Guardian and in good faith, have applied the principles in the Act and have kept relevant documents such as bank statements and receipts you should have nothing to fear from such an investigation.
NOTIFYING THE OPG OF CHANGES OF CIRCUMSTANCES
Change of address
5.14 A withdrawer must notify the Public Guardian in writing of any change of address of the adult or a withdrawer within seven days of the change. If you do not keep the Public Guardian up to date with any changes it may be possible that vital information does not reach you and if you are out of contact this may well be a valid reason for your authority to be revoked.
Additional joint withdrawer(s)
5.15 More than one joint withdrawer can be appointed and this may or may not have been considered and put in place when the original application was made. An application for an additional withdrawer(s) can be made during the period of authority using form ATF(3).
5.16 Where an additional joint withdrawer is appointed at a later stage the period of the appointment will be till the date of expiry of the existing withdrawer's certificate.
5.17 A reserve withdrawer can be identified and this may or may not have been considered and put in place when the original application was made. An application to identify a reserve withdrawer can be made during the period of authority using form ATF(4). When someone has agreed to act as a reserve, the OPG should be notified in writing with details of the period of appointment requested.
Variation of transactions
5.18 In the original application to access funds the withdrawer is asked to consider and estimate the adult's financial needs over a period of three years. During this period the financial needs of the adult may change considerably: for example, the adult may move from hospital to a care home, or an unforeseen expensive repair might be required. There is an opportunity to apply to vary the withdrawal certificate by amending the regular transfer of funds to the designated account or requesting a lump sum payment and this can be done by the withdrawer(s) using Form ATF(5).
5.19 The original period of the authority cannot be changed - for how to renew your authority see paragraph 5.23 below.
Transfer of funds
5.20 It may be that in the initial application you did not feel it necessary to move funds between accounts. If there is now a need to do so you should apply using Form ATF(5). Chapter 2 provides further information.
5.21 Where a variation to the original authority is made a new certificate will be issued and the existing certificate will cease to be valid. The period of authority granted in the original certificate cannot be changed so a new certificate will only be valid for the period as set in the original certificate.
5.22 If you lose your certificate of authority you can ask the Public Guardian for a duplicate certificate. There will be a fee payable and the Public Guardian will be able to advise you what the fee will be on request or you can refer to the list of fees on the OPG website at http://www.publicguardian-scotland.gov.uk/whatwedo/fees.asp
Your period of authority is about to expire
5.23 If you apply for a renewal of authority prior to the expiry of the existing certificate you can continue to act until the new application is determined. The Public Guardian will require to be satisfied that the withdrawer(s) have acted appropriately before renewing the authority. You will be asked to provide certain information and evidence with the renewal application. The information requested is identified in the application Form ATF(6).
You are no longer able/willing to act
5.24 If you are unable to continue as withdrawer and do not wish to renew your authority you must inform the OPG. The purpose of the scheme is to ensure continuity in the management of funds for as long as is needed by the adult and it would be helpful if you could identify someone else suitable to take over. If no new application is made, the Public Guardian is required to notify the Local Authority.
Who else can apply?
5.25 If there is a joint withdrawer that person can continue to act but should immediately advise the Public Guardian of this in writing. If there is no joint withdrawer but there is a reserve and if the reserve is willing to be appointed as the main withdrawer, he/she should apply for renewal of the authority.
TERMINATION OF AUTHORITY TO ACCESS FUNDS
5.26 There are a number of reasons why your authority may be terminated or why the scheme is no longer needed. These are outlined below.
The adult's circumstances change
5.27 The 3 main reasons for ending the scheme due to changes relating to the adult: are:
- the adult recovers sufficient capacity to manage his or her own funds. You, or the adult, must apply to the OPG to revoke the certificate, as the grounds for you to have access to the adult's funds no longer apply. A medical opinion will need to be provided, to satisfy the Public Guardian that the adult is now capable of safeguarding his/her own funds;
- the adult's financial circumstances change, for example he or she inherits assets and/or property, access to funds may no longer be appropriate and someone may need to apply for financial guardianship. In such circumstances it would be advisable to discuss the matter with staff at the OPG;
- the adult dies - funds in the designated account are part of the adult's estate. As part of termination of authority to access the adult's funds, you should pay over to an executor, or other person entitled to receive the funds, any balance remaining in the designated account.
The withdrawer's circumstances change
5.28 You may wish to terminate the authority yourself for example if you plan to move some distance away or do not want the responsibility any more. In this case you should notify the Public Guardian. Where there is a joint withdrawer, this person may continue to act as a withdrawer. If it is necessary for someone else to take on the responsibility you have had for managing the person's funds, there may be someone else close to the adult who is able and willing to act as a withdrawer.
5.29 If no other person is prepared to do this you should contact the social work department who will consider how best to respond to the need. The local authority may apply to access funds itself or arrange for another organisation to do so. It is good practice for you to ensure a smooth transition to another withdrawer or other arrangements, as appropriate, so that there is no detriment to the adult.
Termination by the Public Guardian
5.30 As the result of an investigation the Public Guardian may suspend or terminate an authority to withdraw. In such an instance, the Public Guardian must immediately advise you, any other joint withdrawer, any reserve withdrawer, the fundholder of the designated account and any other person the Public Guardian thinks fit, of this decision.
If there is a reserve withdrawer, his/her authority is also suspended or terminated.
A joint withdrawer whose authority has not been suspended or terminated will remain able to act as a withdrawer.
If the authority is withdrawn you may be given an interim certificate of authority to cover a period up to 4 weeks so that payments may continue and hardship can be avoided.
5.31 You can appeal to the sheriff against a decision of the Public Guardian to suspend or terminate your authority. The clerk to the sheriff court can give you general information. You can also appeal against a decision to reduce or extend the period of authority.
Other circumstances for termination
5.32 Your authority to access the adult's funds is automatically terminated if:
- a guardian is appointed with powers which cover management of the same funds; or
- an intervention order to access the same funds is granted.
The Public Guardian will be aware of these changes because she is responsible for keeping the registers relating to these matters. You will be notified if your authority comes to an end.
Liability to repay funds
5.33 If you continue to act in good faith using the authority to withdraw because you are not aware that it has been terminated you will not be liable to repay funds withdrawn. However, if you misuse any funds, or continue to use the power to withdraw once you know that it is terminated, you will be liable to repay the funds with interest.
Further advice and information
5.34 If you are unsure of what to do in a particular situation you can seek advice on:
- Financial matters from the OPG.
- Welfare matters from the local authority social work office where the adult lives; or contact the Mental Welfare Commission.
- You may also find it helpful to talk matters through with a specialist voluntary organisation or advice agency. See Annex 4 for details of the above.