IDG52270 - Disclosure when there is 'power of attorney': Northern Ireland

Enduring Power of Attorney:

An enduring power of attorney is made by an individual, known as the donor, before they become incapacitated and will be largely used to appoint a third party, the attorney, to look after their property and financial affairs if or when they become unable to do this for themselves. However, whilst the donor remains mentally capable, and with their agreement, an enduring power of attorney can also be used as though it were a general power of attorney (please see IDG52250 of the Information Disclosure Guide for information on ordinary/general powers of attorney).

The donor can appoint one or more attorneys to deal with their property and affairs. The donor can stipulate the extent of the attorney's powers, for example, they may want the attorney to deal with their finance but not their property. Any document presented to you should therefore be clear in defining what the attorney is empowered to do.

Procedure to follow:

If you are presented with an enduring power of attorney that is not registered with the Office of Care and Protection, you must check with the attorney that the donor is not incapacitated and that the donor has agreed that the power can be used as though it was a general power of attorney. As donors sometimes have written into the document an instruction that the power cannot be used until a certain event has occurred, for example, that a medical practitioner has declared them to be mentally unfit, as an additional safeguard, you may want to check the document to ensure it contains no such instruction.

Once you are satisfied that the donor has consented to the use of the power before their incapacitation, you should then check that the document has been properly certified; this should be in accordance with the instructions contained at IDG52250 covering ordinary/general powers of attorney. You should take a copy for your file.

You may then pass to the attorney information that would have been available to the donor under the terms of the power of attorney. However, you should remind the attorney that, if the donor becomes incapacitated, they must register the enduring power of attorney with the Office of Care and Protection (see details below) and forward an original document to us for verification.

Where the donor is incapacitated:

The legislation governing the management of the affairs of incapacitated individuals can be found at Part VIII of the Mental Health (Northern Ireland) Order 1986 and the Enduring Power of Attorneys (Northern Ireland) Order 1987. The responsible administrative department for Northern Ireland is the Office of Care and Protection (for more details on the Office of Care and Protection (opens new window) please see their website.

Once the donor is no longer able to deal with their own affairs the attorney must register the enduring power of attorney with the Office of Care and Protection. If the document is not registered then the attorney has no authority to receive the donor's HMRC data.

The Office of Care and Protection will return the original document to the attorney and it will be stamped to show the date of registration. You should ask to see this original document and, when satisfied that you are dealing with the correct attorney and that they have authority to access HMRC data, you should take a copy for your file, noting that you have seen the original. You may then provide the attorney with any information to which the donor would normally have been entitled.

If you are in any doubt as to the authenticity of the document you should not release any information and should take advice from the Information Strategy Team.

Full Control Order/Short Procedure Order

Where an individual becomes mentally incapacitated and there is no enduring power of attorney in place, the High Court can appoint a controller to oversee the person's property and affairs. In these orders the incapacitated person will be referred to as the 'patient'. The Court will only appoint a controller once they have received medical evidence that the patient is incapable of conducting their own affairs.

If the patient's affairs are substantial the court will issue a Full Control Order which will specify the identity of the controller and what they are empowered to do. Where the patient has a small estate a Short Procedure Order will be issued.

The powers conferred on a controller will be restricted to financial affairs and will be limited. If the controller needs further powers they are required to return to the court.

Procedure to follow

On appointment a controller will be issued with a sealed copy of the order. This is an office copy of the order which will have been impressed with the Court’s seal. A controller may not make any alterations to the order (not even to correct a spelling mistake) and must return the order to the court for amendment.

You should ask to see this sealed copy and, once you are certain that the person presenting the document is the controller and that they have the authority to access the donor's HMRC data, you may disclose any information to them that would normally have been available to the patient. You should also take a copy of the document for your file having noted it to the effect that you have seen the original.

If you have any doubts about whether a document is genuine, you should not release any information until you have consulted the Information Strategy Team.

The controller will be responsible for overseeing the patient’s income tax affairs and, if they choose to do so, they can appoint a professional adviser to assist them with this. In this event, you will need the controller’s formal written consent before you can disclose information to an appointed third party.

An order will only come to an end if:

• the patient recovers and is able to conduct their own affairs
• the controller wishes to step down and a replacement is required (in which case a new order will be made), or
• the patient dies.

If the patient recovers they will be required to produce medical evidence to the court; they will then be issued with a court order to this effect. The controller will then be discharged from their duty.

If the patient dies the authority of the controller is revoked and the estate affairs should be dealt with by either the executors of the Will or, where there is no Will, the beneficiaries of the estate.