MoJ in special measures on charges?

Businesman blows whistle and shows red card
STEP was one of the bodies most actively engaged in the furore that developed around the Ministry of Justice’s (MoJ) proposal to raise probate fees for some estates from £155/215 to as much as £20,000.

One of the things that enraged many STEP members was not just the scale of the increase, but the fact that overwhelming criticism in response to the consultation on the proposals had been entirely disregarded. Moreover, the mechanism by which the MoJ were looking to introduce the new fee – via a Statutory Instrument with minimal Parliamentary scrutiny – appeared to be a clear abuse of process; a view confirmed by a legal opinion commissioned by STEP.

In the end, the increase in probate fees appears to have been shelved, at least for the time being. It has recently emerged, however, that it is not just probate fees that have been getting the MoJ into a spot of hot water. Fees for Powers of Attorney were also raised to levels that more than covered costs, but the MoJ had again failed to follow the procedures needed in these circumstances. Fees for Powers of Attorney have since, with effect from 1 April 2017, been reduced, and the Office of the Public Guardian is looking at ways to refund those who have paid too much. (See Justice ministry to repay GBP89 million of powers of attorney overcharges.)

Even more intriguingly, the MoJ, in its Annual Report, has let slip that it is ‘undertaking a review of lessons learnt [from the Powers of Attorney fees issue] which has led to the creation of a new income strategy unit which will oversee the standards and controls set for all income streams.’

The Report goes on to say: ‘There have also been a number of improvements to the way in which we forecast and monitor fees to ensure compliance with requirements set by HM Treasury.’

Stripping through the civil service code, this sounds like there has been fairly sharp exchange of views between HM Treasury and the MoJ over fees that begin to look like taxes, with Treasury no doubt highlighting that there are supposed to be rules and procedures when it comes to this sort of thing.

The funding gap left by the failure to get the probate fee increase through before the election still needs to be addressed. How the MoJ will eventually fill that gap remains to be seen. It sounds, however, like we can at least expect the MoJ to pay a bit more attention to due process when this issue next comes up than it was minded to earlier this year.

George Hodgson is Chief Executive of STEP

Invitation to members – LPA discretionary investment clauses

Emily DeaneThe England & Wales Office of the Public Guardian (OPG) published an update in September 2015 providing guidance on financial lasting powers of attorney (LPAs) and how attorneys can delegate investment management decisions to a discretionary investment manager.

Under this guidance an attorney can appoint a bank or an IFA to act on their behalf to make investment decisions; however specific wording must be incorporated into the LPA. Since the guidance was issued in 2015, STEP and other professional bodies have contacted the OPG with their concerns.

The primary issue is that if an attorney is currently using a discretionary manager without explicit permission in the LPA, then they need to apply to the Court of Protection to obtain retrospective consent.

The suggested wording within the LPA can be similar to the following, ‘My attorney(s) may transfer my investments into a discretionary management scheme. Or, if I already had investments in a discretionary management scheme before I lost capacity to make financial decisions, I want the scheme to continue. I understand in both cases that managers of the scheme will make investment decisions and my investments will be held in their names or the names of their nominees’.

Tell us your views

STEP would like to invite members to provide examples of how the OPG guidance may be difficult to apply in practice, so that we can present a test case to the OPG and underline that the impact of this issue is potentially far-reaching.

Issues that have arisen include:

  • There is no guarantee that your bank or IFA will accept this wording, and you may need to confirm their agreement in writing before the LPA is registered.
  • HSBC has specific wording that it will not stray from, while other fund managers are willing to continue acting without the delegation clause. Other banks and IFAs may switch to the stringent guidelines in future.
  • You can re-do the LPA where the donor still has capacity, but this option may not be well received by the client, and is time consuming and costly.
  • If the LPA has already been registered without the express wording, the attorney can apply to the Court of Protection for the retrospective authority to appoint an investment manager.

This is also time consuming and costly.

If you are currently acting as an attorney and you have already delegated investment making decisions, there are some options available to you:

  • You could change your discretionary manager to an advisory manager so that you are still ultimately making the decisions, although you should check any potential liability issues that may arise.
  • You could speak to your discretionary manager about the firm’s policy and what their requirements are.
  • You could re-do the LPA where the donor still has capacity, or alternatively apply to the Court of Protection when the existing discretionary manager is not willing to continue/or start acting in accordance with the OPG guidance.

However, it might be prudent to wait and see whether the OPG will consider amending its guidance before taking any action. Currently, the OPG feels discretionary investment management accounts for a tiny percentage of registered Powers of Attorney, so the number of Attorneys affected is relatively small.

STEP is hopeful that by providing the OPG with a test case of practical working examples, then it might recognise and review the difficulties that attorneys and their advisors are facing in this connection.

The best case scenario would be the determination that the delegation of investment management by an attorney to a discretionary investment manager is already legally permissible, without the need to retrospectively apply for it through the court.

STEP will provide an update when further information is available.

We would very much value your input. Please send your examples to policy@step.org by 31 October.

Emily Deane TEP, STEP Technical Counsel