Adults with incapacity: code of practice for those authorised to access funds

Chapter 2: THE ACCESS TO FUNDS SCHEME

About the scheme

2.1 All applications to access funds are made to the Public Guardian who is responsible for granting authority. The Public Guardian supervises withdrawers. (Chapter 3 provides details on how to apply.)

2.2 The Access to Funds scheme is a simple method for allowing one or more individuals or an organisation to have access to the bank or building society account/s of an adult with incapacity, to meet his/her living costs. These would include, for example, food, clothes, utility bills, entertainments, or care home fees, etc. It may also be used to make payments which are, or may become due in respect of dependants. The scheme allows for flexibility in how the adult's money can be managed and used for his/her benefit. The scheme does not transfer ownership of funds. Funds continue to belong to the adult but cannot be accessed by him/her once authority is granted to a withdrawer.

2.3 In this scheme, funds can only be accessed where they are held in an account in the sole name of the adult. Funds held in a joint account may be able to be accessed in other ways (see paragraphs 2.37 to 39).

2.4 Where information about the adult's income and assets is not known, the Public Guardian can authorise banks/building societies to release information about the adult's account/s so that a decision can be made as to the best way forward.

2.5 Where the adult does not have a bank or building society account the Public Guardian can authorise an account to be opened to enable an application to be taken forward, provided he/she holds funds; is entitled or may become entitled to receive income or other payments or where some other person holds funds on his/her behalf.

2.6 An application to access an adult's funds cannot be authorised if someone else already has authority to do so under Part 3 of the Act. Neither can the access to funds scheme be used when there is a guardian or attorney with powers relating to the funds in question or where an intervention order has been made relating to the funds. If you are not sure if anyone else holds such an appointment in relation to the adult, you should check the position with the OPG who registers such appointments. There is a small fee payable for this service.

Individual/s as withdrawers

2.7 An individual can be appointed as a sole withdrawer. An individual withdrawer is liable for any loss of the adult's funds incurred as a result of his/her actions. A withdrawer is not personally liable for any debts incurred by the adult.

Joint withdrawers

2.8 More than one individual (joint withdrawers) may be appointed either at the time of the original application or at some later stage if required. The appointment of joint withdrawers allows the sharing of responsibility and the tasks involved.

2.9 A joint withdrawer cannot be appointed without the agreement of any other existing withdrawers. Where joint withdrawers are to operate it is important for them to reach agreement on how the arrangement will work and to work together for the benefit of the adult. Joint withdrawers may act individually on the basis of what they have agreed but should consult with each other when new or significant decisions need to be made.

2.10 Where joint withdrawers cannot agree on what is best for the adult they may write to the Public Guardian and ask for advice. The Public Guardian will try to find a solution but if this cannot be achieved a direction will be made on the matter. This may be appealed to a Sheriff, whose decision shall be final.

2.11 Joint withdrawers are jointly liable for any loss of the adult's funds incurred as the result of the actions of any one withdrawer. A withdrawer is not personally liable for any debts incurred by the adult.

Reserve withdrawers

2.12 Where a sole withdrawer is to be appointed that person may, at the time, or at any later time, wish to identify a reserve withdrawer to operate in the event that he/she is temporarily unable to do so. It is a bit like having a substitute available in case of an emergency and is worth considering particularly when a sole withdrawer is to be appointed. A reserve withdrawer cannot be appointed where joint withdrawers exist. However, should circumstances change resulting in only one withdrawer having authority to act that withdrawer can apply to appoint a reserve.

2.13 Such a request can be made in the initial application or at any time thereafter. Although identified, the reserve cannot operate while the main withdrawer is available to act. A reserve withdrawer may only act in the following circumstances, provided the Public Guardian approves the request. Such requests must always be in writing:

• where the main withdrawer is aware that he or she will be temporarily unable to act due to a planned event, for example out of the country on business or holiday for a period of time. The main withdrawer will have to specify the period requested; or
• where the reserve withdrawer becomes aware that the main withdrawer is unable to continue to carry out the function properly (due to illness or other reason). In this situation the Public Guardian will decide the period a reserve can operate for and will keep this under review;
• if the main withdrawer has died or become incapable during the period of authority, the reserve should immediately notify the Public Guardian of the situation; and
• if willing to act, the reserve should apply to renew the authority as the main withdrawer.

2.14 The main withdrawer and the reserve withdrawer are liable, jointly and severally, for any loss of the adult's funds incurred as a result of the reserve withdrawer's actions. This means that each withdrawer is responsible for the actions of the other. A withdrawer is not personally liable for any debts incurred by the adult.

Organisations as withdrawer

2.15 An organisation may make the application. This may be appropriate for statutory, voluntary and private organisations providing services to adults with disabilities and their carers.

2.16 Any organisation wishing to apply must demonstrate to the Public Guardian that it is fit and proper to do so and this is done by completion of the 'fitness to access funds' form. Separate guidance is provided relating to this process.

2.17 Before an application can be approved the Public Guardian must be satisfied that: the applicant/s is suitable; that the adult lacks capacity to manage his/her money; that the Access to Funds scheme is appropriate and there is no financial guardian or attorney already in place with the powers requested.

2.18 The organisation will be appointed as the 'withdrawer' and should make the necessary arrangements with the fundholder to operate the account.

Period of appointment

2.19 Withdrawer/s are usually appointed for a period of three years and authority can be renewed if the scheme is still needed to support the adult. Chapter 3 provides further details.

WHAT THE SCHEME ALLOWS YOU TO DO

Assess the adult's assets

2.20 If details of the adult's funds or type of account(s) held are unknown the applicant may apply to the OPG for authority for fundholders to provide information about funds. This will enable the applicant to decide whether the Access to Funds scheme is appropriate.

Open an account

2.21 Where an adult does not have a bank or building society account it is possible to apply for authority to open one if:

• the adult is believed to have funds;
• the adult is entitled to some form of income; or
• funds are held on behalf of the adult by some other person.

If satisfied of the need to open an account, the Public Guardian will issue a certificate authorising this to be done. Once opened the withdrawer must provide the account details to the Public Guardian. This account will be referred to as the 'current account'.

2.22 Where an adult has an account which is not suitable for this scheme, it is possible to apply for authority to open a new account. An example of an unsuitable account could be a 90 day notice account where penalties would apply if regular withdrawals were to be set up.

Open a second account

2.23 It is possible to apply to open a further account, if required. This might, for example, be a savings type account which pays a reasonable rate of interest.

2.24 A withdrawer and a fundholder may only open accounts as specifically directed in the certificate of authority issued by the Public Guardian.

Open a designated account

2.25 When an application is approved, the Public Guardian will issue a certificate which allows access to the funds to be used for the purposes agreed in the application. This may simply be to make arrangements for a regular sum to be paid from the adult's current account to a new account which the withdrawer will need to open. This new account is known as the 'designated account' and may be set up in any bank or building society. The withdrawer can then use the funds in the designated account for the purposes set out in the application. Where direct debits or standing orders are already in place these may continue, or others may be put in place.

2.26 When you have your certificate to access funds, you may apply for a cheque book, cheque guarantee card and/or any cash withdrawal card in relation to the designated account. Different fundholders have different arrangements so you may wish to check with the bank/building society you intend to use before you start - so that you can make the arrangements that are convenient to you.

Transfer of funds

2.27 While the access to funds scheme is principally to cater for the day to day needs of an adult it also allows for the movement of funds between accounts which the adult already has and those set up on his/her behalf. Requests to transfer funds must be authorised by the Public Guardian. Transfer of funds is relatively straightforward but there are several options available dependent on whether the adult's accounts are newly opened or already exist at the time of the withdrawers appointment. The scheme aims to allow accounts to be managed as flexibly as possible for the benefit of the adult.

2.28 There is scope within an application to move money from one of the adult's accounts to any other of his/her accounts, including the designated account. Transfer of funds may be used in a number of situations, for example, where:

• the adult has an account paying little or no interest and you wish to place the funds into a higher interest bearing account;
• there are several accounts in existence and you wish to transfer the funds into one account and close the others;
• where an unexpected expense incurred by the adult might arise.

It may be helpful to discuss your intentions with staff at the OPG who will be happy to assist.

Closure of accounts

2.29 It is possible to apply for authority to close any of the adult's accounts and terminate existing standing orders and direct debits.

Request for lump sums

2.30 The scheme enables a request for a lump sum to be made. This might be needed, for example, to pay off debts, such as nursing home fees, that have built up because no one has been able to access the adult's funds, or to buy specialist equipment which will benefit the adult. It can also be requested to reimburse monies already spent by you or others on behalf of the adult. The access to funds application form gives specific guidance on how to request a lump sum.

Transfer from financial guardianship to access funds

2.31 An existing financial guardian may apply under transition arrangements to become a withdrawer. This will usually be in circumstances where the adult's assets have been reduced and management through the access to funds scheme is a more appropriate form of intervention into the adult's financial affairs in terms of the principles of the Act. Chapter 3 gives more guidance.

Outlays/expenses

2.32 The Public Guardian charges fees for applications under the access to funds scheme. The doctor may also charge a fee for providing the medical certificate. Chapter 3 provides further information about medical certificates. These costs can recouped from the adult's funds as part of a lump sum request.

A withdrawer cannot be paid for acting as such but reasonable out of pocket expenses incurred for the adult's benefit may be claimed from the adult's funds.

Certificates of authority

2.33 When any part of an application is granted the Public Guardian will issue a certificate of authority and record details on the Public Register. The certificate will outline exactly what is authorised.

2.34 During the lifetime of an access to funds appointment it is possible that several certificates of authority may be issued by the Public Guardian relating to your involvement with an adult. For example you may initially apply to open a bank/building society account and to access the adult's funds. If an additional withdrawer is identified or the level of funds needed has changed a new certificate will be issued.

When the scheme may not be appropriate or necessary

2.35 The scheme is not suitable for use where the adult has financial assets of a complex nature, for example, stocks and shares, investment bonds etc to be managed. This will require management through an intervention order or guardianship order, both of which are applied for through the sheriff court.

2.36 The scheme may not be appropriate where the adult's only income is in the form of DWP benefit payments. In such cases DWP appointeeship may be adequate. However, the Access to Funds scheme may be helpful if the person has savings.

Joint accounts

2.37 As noted earlier, the access to fund scheme relates to funds held in an account in the sole name of the adult. If the adult has a joint account with someone else the fundholder should not freeze the account if it is one which is operable on either signature. The joint account holder should be able to continue to operate it (unless there is a court order in force which would prevent this).

2.38 If you are continuing to operate a joint account you will help to protect the interests of the adult and safeguard the adult's funds if you notify the fundholder that the adult has become incapable of managing his or her funds and that you will continue to operate the account. You will then need to discuss with the fundholder any measures that may be appropriate to safeguard against misuse of funds. For example, if the adult in a vulnerable condition is put upon by others to sign over large sums of money, the fundholder could stop such cheques if notified in advance of the adult's incapacity.

2.39 If the fundholder refuses to allow such an arrangement you should find out why - it may be for example that the account is not one that allows any one of the joint account holders to operate alone.