Update on work to challenge difficulties placed by banks and others in the way of those authorised to act for incapable adults

“Power in name only” (Journal, May 2011, 30) highlighted the serious concerns of the Society’s Mental Health & Disability Subcommittee about failures of banks and other financial institutions to recognise and give effect to measures taken under the Adults with Incapacity (Scotland) Act 2000. There was increasing anecdotal evidence that barriers were being placed before solicitors and family members trying to use the law to manage the financial affairs of an incapable adult. In an attempt to get an indication of the scale of the problem, the committee appealed for details of particular cases.

Solicitors provided a number of examples of difficulties relating to powers of attorney, guardianship orders and certificates issued under the Access to Funds scheme.

Since then, the committee has met with the association representing banks. Those attending recognised that there is a live issue and agreed to look at training, internal resources and the potential for more specialist advisers.

The Equality and Human Rights Commission has also agreed there is a disability discrimination issue and is looking into what, if any, action might be required.

The difficulties are not restricted to Scotland. Last September the Guardian highlighted problems attorneys were having with banks in England.

More than a decade after the 2000 Act was passed, it should be straightforward for families to use legislation to manage financial affairs.

Many have already been through a long and time-consuming process to get the appropriate powers in place, on top of dealing with the inevitable stress of caring for a relative. It is not acceptable that they then face a further battle because organisations fail to recognise, and act on, properly obtained legal authority.

Every example or experience provided by a solicitor adds weight to the claim that this needs urgent action. There is the potential for a test case to be taken forward.

If anyone has a story, please send details to Brian Simpson, Law Reform Department at the Society (e: briansimpson@lawscot.org.uk), who will collate the information and also pass on to the Equality and Human Rights Commission.


The Author
Nicola Smith, Cairn Legal
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