Is financial privacy coming to an end?

In recent years, we have seen almost daily developments chipping away at long-established boundaries of financial privacy. Before the global recession gave this process real impetus, who would have thought that offshore financial centres would sign automatic exchange of information agreements?

The UK’s proposed public registry of company beneficial ownership may prove to be a game changer if, as the UK hopes, it becomes a de facto global standard. Whether each jurisdiction makes such data publically available, as the UK plans, or ‘consultable by request’ as planned for the new register of French trusts, is arguably less important than the fact that the data is collated at all. The Cayman Island authorities have already announced a consultation on a similar company registry and that they will ‘adopt standards that are practiced worldwide’.

These developments are driven by the goal of preventing tax evasion and limiting avoidance to raise additional revenue. Yet many clients coping with sensitive personal circumstances may have genuine reasons for fearing that their financial privacy is rapidly coming to an end.

Fortunately, the UK registry will allow ‘Limited exemptions from public disclosure … where it is necessary to protect individuals whose safety might be put at risk.’ While this is essential, it is unlikely to help those who seek privacy because personal family relationships are ‘complicated’.

The UK’s proposal to force disclosure of trustees that are beneficial owners of companies (and in some cases the trust beneficiaries) could also be significant if it signals the start of disclosure of trust relationships beyond corporate structures.

Advisors can still direct their clients to jurisdictions where privacy can be maintained but this is now a moving target. However, it is likely to be more productive to work with clients on addressing the underlying reasons for the need for privacy rather than to chase privacy to the ends of the earth.

Identifying the best global locations for clients is about more than seeking out the highest level of privacy. Striking a balance between attractive tax rates, quality of life and cost of living issues is a highly personal decision but advisors can, and should, support clients through the process. A recently published Global Opportunities report compares the benefits of key jurisdictions to illustrate the many options available.

Wendy Walton TEP, Chair of STEP Technical Committee for England and Wales

Time for a Viennese whirl?

In the summer, I flagged up that Austria on 10 July had signed up to the Hague Convention XXXV of 13 January 2000 on the International Protection of Adults, which had then been ratified by the Czech Republic, Estonia, Finland, France, Germany, Scotland and Switzerland.

Last month, less than three after signing, Austria ratified Convention XXXV. It will not, however, come into force there until 1 February 2014.

In Ireland, the Assisted Decision-Making (Capacity) Bill no 83, which will bring Irish capacity law into the 21st Century is making good progress and is likely to come into force during 2014.

This will enable ratification of Convention XXXV which may come into force in Ireland in 2015. Sch.3 to the 2013 Bill sets out Convention XXXV in a similar manner to Sch.3 of the Adults with Incapacity (Scotland) Act 2000 in Scotland and Sch.3 of the Mental Capacity Act 2005 in South Britain.

Many of us think that it extraordinary that although the 2005 Act has been in force in England & Wales since 2007 and that Convention XXXV has been in force since 1 January 2009, the UK still has not got round to ratifying for England and Wales.

The practical difficulties between Scotland and South Britain, involving capacity issues are growing. The acceptance and enforcement of lasting or continuing powers of attorney either side of the border, cause real problems. The UK Ministry of Justice should be ashamed and embarrassed that the law in England & Wales is still half cooked.

Dublin, Edinburgh and Vienna are definitely ahead of London in this particular bake off.

Richard Frimston TEPChair of STEP EU Committee and Co-Chair of the STEP Public Policy Committee