Bereavement and planning ahead

A Power of Attorney enables the donor to give another person (the attorney) the authority to act on their behalf. Once a person has lost their mental capacity, it’s no longer possible to create a Power of Attorney (POA), although representatives can apply to the Court of Protection (COP) for permission to make decisions on behalf of that person.

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• What is a Power of Attorney or Court of Protection order?
• Registering a Power of Attorney or Court of Protection with Fidelity
• What a Power of Attorney can and cannot do
• Fidelity and Court of Protection orders
• Who can certify a client’s POA or COP documents
• The different types of Power of Attorney

A Power of Attorney (POA) enables the donor to give another person (the attorney) the authority to act on their behalf, although the donor can still instruct on their holdings. If there is more than one attorney, they can be appointed to act either jointly, jointly and severally or independently. Depending on the type of Power of Attorney, the authority may continue or be revoked after the donor loses mental capacity. If revoked, it is necessary to replace the POA with a Court of Protection order.

Once a person has lost their mental capacity, it’s no longer possible to create a Power of Attorney. Representatives will need to apply to the Court of Protection for permission to make decisions on behalf of that person.

What happens on the donor’s death?

In all circumstances, if the donor/account holder dies, the Power of Attorney or Court of Protection is immediately revoked and is replaced by normal probate rules. No further information will be supplied to the attorney under the authority of the Power of Attorney.

Before setting up a Power of Attorney (POA) or Court of Protection (COP), we’ll need to see an original or originally certified copy of the original document (we lay out below who is able to certify documents). The documents should be sent to us at:

Fidelity
PO Box 391
Tadworth KT20 9FU

Alternatively, POA documents can be sent to us using our Upload & Send service (this is not possible for COP documents).

If sent to us through the post, we will return any original documents within 72 hours. However, unless requested in an accompanying letter, we will not return certified copies. If documents are sent to us by Special Delivery, they will be returned in the same way.

We may also need identification documents for the client, their nominated attorney or for anyone who pays into the account (we’ll let them know if this is the case). We may request additional information before accepting any request to transact on an asset that is reportable under MiFID II.

Our anti-money laundering procedures

Online access to Lasting Power of Attorney documents

A service from the Office of the Public Guardian allows donors and attorneys to give an organisation access to an online summary of the Lasting Power of Attorney (LPA). In order for Fidelity to view and register the LPA, the donor or attorney named on the LPA will need to provide us with the access code. This code can be posted to us (alternatively, please pass this on to our Client Services team). If the donor or attorney don't currently have an account, one can be set up online. 

Please note, this service can only be used where an LPA registered in England and Wales was issued on or after 1 September 2019. All other POAs need to be submitted to us as laid out above.

Fidelity’s Internal Power of Attorney

If a client wishes to authorise a representative to only operate their account(s) with us, they will need to complete Fidelity's Internal Power of Attorney form and send it to us at the above address.

This form allows the attorney to act only in relation to holdings in Investment Fund Accounts and ISAs held with Fidelity. The attorney will not be able to provide instructions on any holdings in pension or life products, investment bonds or share dealing accounts.

Setting up a POA for Pension Trust accounts

If there is a Company trustee for the pension scheme, they can use the Corporate POA to allow an individual to give switch instructions over the phone or through a form. This is commonly used for Pension Trust accounts to authorise the client to switch investments by phone. 

We cannot accept a POA for private trust accounts.

Fidelity accounts – what a Power of Attorney can do

• Provide dealing instructions on a client’s account, like switching, adding money, and selling investments
• Discuss the client’s accounts with us by telephone and request additional information
• Request copies of reporting documents, such as Statement & Valuations, Confirmations of Transactions and Tax Vouchers
• Have online access to the account with the client’s permission to use their login details.
• This last point is at the client’s discretion and isn’t something we recommend. In the event of suspicious or fraudulent online activity on the account, there’s a risk we may not be able to determine the cause if both the attorney and the client have been accessing the account online using shared details.

Please note, if acting jointly, all the attorneys will need to sign an instruction in order to place a deal or amend an account.  If acting jointly and severally, the instruction can either be sent from all the attorneys or just one of them.

Fidelity accounts – what a Power of Attorney cannot do

• Submit an ISA application signed by a prospective client’s attorney unless it’s sent with either:

1. A Lasting Power of Attorney (LPA) which has been registered with the Office of the Public Guardian, and which doesn’t place any restriction on the attorney in regard to making the decision to open an ISA
2. An original sealed Court of Protection order or Enduring Power of Attorney stamped by the Office of the Public Guardian (where the client is mentally or physically incapacitated)
3. Where the applicant is physically incapable of signing the form, we may accept an application under a General Power of Attorney (provided the applicant has the required mental capacity). In such circumstances, we would require confirmation that the applicant is physically incapable of signing the required documents.

• The attorney will not be able to provide instructions on any pension or life products, investment bonds or share dealing accounts.

Once a person has lost their mental capacity, it’s no longer possible to create a Power of Attorney. Representatives will need to apply to the Court of Protection for a decision to be made on their affairs. However, if there’s a continuing need to make a decision on the person’s behalf, the representatives can ask the Court of Protection to appoint a deputy.

How it works

Once we receive the Court of Protection, we will:
 

• Update the address on all accounts held by the donor
• No longer allow online dealing so that we can make sure the customer isn’t making unwise investment decisions. This means that the attorney won’t be able to do any online dealing either, but they will be able to do so over the phone
• If the account holder wants to retain the ability to make decisions, it is up to the deputy to specify the circumstances under which the customer may do so. It’s the deputy's responsibility to make these exceptions or restrictions known to the account holder.
• If we receive any dealing instructions directly from the client, we’ll seek confirmation from the deputy.

What a Court of Protection order means for donors and attorneys

• The donor can provide and receive information for an account
• A donor cannot deal on the account
• The attorney can provide and receive information for an account
• The attorney can deal on the account
• Neither the donor or attorney are able to have online access.

The following individuals can certify a client’s POA and COP documents:

• Solicitor
• Judge or Magistrate
• Notary Public
• Financial Adviser or registered Stockbroker
• A representative at the Fidelity Investment Centre

When certifying documents, the individual must include the following information:

• The words “I have seen the original document and I certify this to be a true copy of the original”
• The certifier's signature and their name printed in full
• The certifier's full address and postcode
• The certifier's telephone number
• Details of the certifier's professional capacity with the official’s or institution’s stamp applied as appropriate

Please note all of the above must appear on each page of the document. Stick on label certifications cannot be accepted.

There are three main types of Power of Attorney:

Enduring Power of Attorney (EPA): Since 1 October 2007, it’s no longer been possible to establish a new Enduring Power of Attorney (EPA). However, if an EPA was set up before this date, it can still be registered with the Office of the Public Guardian (OPG) and, if already registered, it will still be valid and enable the attorney to manage someone’s property or financial affairs.

An EPA can be used before someone loses their mental capacity or, if registered with the OPG, after they have lost their mental capacity. The attorney has a duty to register the EPA with the OPG as soon as they believe that the donor is becoming or has become mentally incapable. The OPG will stamp the document on each page to verify the change in the mental status of the donor.

Lasting Power of Attorney (LPA): This was introduced by the Mental Capacity Act 2005 and replaced EPA from 1 October 2007. An LPA enables someone, while they are still mentally capable, to decide who can deal with their personal affairs after they become incapable of acting and making decisions for themselves.

Before an attorney can act on behalf of the donor, the LPA must be registered with the Office of the Public Guardian (OPG). Registration is confirmed by the OPG stamp on each and every page of the power. Having the LPA registered with the OPG does not mean that the donor has lost their mental capacity. Once registered, the attorney can act for the donor regardless of whether the donor has full capacity or not, unless there are restrictions or conditions stated within the power which restrict the attorney from doing so.

There are two different types of LPA – one for Property and Financial Affairs and one for Personal Welfare Affairs. We require a Property and Financial Affairs LPA to allow attorneys to manage a client’s account.

The rules covering this type of Power of Attorney vary between England and Wales, Scotland and Northern Ireland but each administration will have the following common features:

1. All require a Power of Attorney for incapacitated individuals to be registered with either a public guardian or a specialist court. If they are not registered, they have no validity.
2. Any amendments to the Power of Attorney should have been notified to the public guardian or court, who will either have annotated the document to show they have seen and approved the amendment or will issue a replacement document showing the revised powers.

General or Limited Power of Attorney: A client can give someone the General Power of Attorney to deal with their financial affairs or only certain matters. It is also known as an Ordinary or Limited Power of Attorney. There is a standard form of words to use if the client wants to grant a General Power of Attorney (a solicitor can give additional advice).

A General Power of Attorney is not valid if a person loses mental capacity. Under these circumstances, it may be more appropriate to use a Lasting Power of Attorney or apply for a Court of Protection Order.