News and industry insights

Incapacity vs Capacity – ensuring equal rights in financial services

By Estatesearch on March 12th, 2024

In this piece, which was originally published in The Collaboration Network’s Journal, (Issue 16), Ollie Wright, Head of the Estatesearch Financial Institutions Team discusses the issues that are affecting consumers.

No one likes to talk about death or loss of mental capacity. Dementia is the nation’s leading cause of death in women and with cases growing every year, it’s something that we really should discuss. With an estimated 900,000 people currently living with dementia in the UK, at Estatesearch we encourage those working in the financial industry to talk about the challenges faced by those looking after the financial affairs of affected individuals and to try and remove some of the hurdles that they may come across.

Sadly there will come a time in people’s lives when they are unable to speak for themselves. In cases of loss of mental capacity, the responsibility of managing the individual’s estate is then either in the hands of someone with power of attorney or by a court-appointed deputy. Often, when that happens, things suddenly become harder and information requests can be treated differently. Sometimes with less respect or urgency.  We are standing up for clients with mental incapacity to ensure they are treated fairly so that they don’t become ‘dehumanized’ within the financial system.

As one of the founders of the Vulnerable Banking Group, Estatesearch is an ISO27001 accredited organisation and we’ve been working to help private client solicitors who are struggling to pull together information on behalf of those with incapacity in relation to identifying their financial assets, often an essential step to pay for the care that they need.

Any individual or ‘data subject’ may submit a Data Subject Access Request (DSAR or SAR) to an organisation to find out what information has been collected and stored about them or to ask that certain actions are taken with their data. When a solicitor has a court of protection order, it’s best practice to contact the relevant financial institutions to establish the assets within a person’s estate. 

However, if a solicitor doesn’t know where to start, a Financial Profile Search can confirm which financial institutions hold profiles for the client.   To complete a Financial Profile Search for those living with incapacity, Estatesearch makes enquiries to a wide range of financial institutions on behalf of individuals who are represented by either an Attorney or a Deputy, appointed by the Court of Protection.  A ‘yes’ or ‘no’ response is relayed to the appointed solicitor who will then follow up to gain more detailed information as required to ensure the correct and rightful management of the estate. 

However, it has become apparent that some vulnerable people, through their legal representatives, are not being given the same rights and status as those with full mental capacity.  The result is that a significant number of financial institutions have challenged DSAR requests stating they are not applicable to those with loss of mental capacity.

We disagree!  Last year, we sought advice from the Information Commissioner’s Office (ICO) to confirm that those with incapacity are entitled to exactly the same rights as those with full capacity and institutions should respond appropriately to our enquiries.  Following months of detailed conversations, the ICO informed us verbally that their interpretation of the guidance ensured that DSARs (Data Subject Access Requests) should be responded to appropriately, irrespective of whether the individual client had capacity or not, provided the legal representative has the relevant authority to act on their behalf.

We wrote to the financial firms in question, but still received pushback from some.  It was clear numerous organisations were still not interpreting the guidelines correctly.  The ICO went on to chair a meeting with one of the leading financial institutions and ourselves. It was discussed and mutually agreed that we should work together to provide better outcomes for those with incapacity and that regardless of the individual’s personal circumstances, enquiries should be dealt with in the same manner.

In order to reflect the ICO’s position and to encourage firms to adopt this approach we were provided with a letter to distribute when required.

The ICO confirmed individuals are entitled to confirmation as to whether an organisation is processing their personal data.  The letter stated:  “The Right of Access, often known as a subject access request or SAR, is a fundamental aspect of data protection law. It allows individuals to understand what personal data organisations, known as controllers or data controllers, hold about them. A SAR is valid in any format (letter, verbally or via email/instant message or other electronic equivalent), and whilst an organisation may ask for a request to be made via a certain format, or via a form, this must not be compulsory. Organisations have a calendar month from when it is received to respond.”

The letter went on to confirm that an organisation should perform reasonable searches for the information requested and supports our stance that legal representatives can act as long as they have relevant authority.

Following the information provided by the ICO, the financial institution we originally met with is now responding to SARs.  They even use one of our automation tools  – a CSV process that exchanges information on an Excel spreadsheet – to manage responses efficiently.  The firm created a matching script enabling them to respond to data subject access requests even more swiftly.   

This is incredibly positive for those with mental incapacity as previously, even if financial institutions did respond to SARs, it could take up to six weeks for information to be provided, unnecessarily delaying the process of releasing funds for care provision. 

The good news is that other financial firms have followed suit.  The result is better outcomes for those with mental incapacity, their families, and the legal representatives they work with.  Legal firms can now establish the extent of assets within a client’s estate more easily and swiftly and manage funds appropriately to ensure the clients receive the care provision they need.

Vulnerability comes in many shapes and sizes.  As an industry, we need to proactively find ways of working together to help rather than hinder the processes involved in supporting vulnerable people.  As a legal technology company for private client practitioners working on bereavement and loss of mental capacity cases, Estatesearch is dedicated to working with financial services organisations to ensure mental incapacity and bereavement are dealt with correctly and appropriately. 

To find out more about Estatesearch’s solutions please contact Ollie Wright, Head of Financial Institutions Team on [email protected]

Give us a call today, or send a message and we'll get back to you straight away.

0330 900 1700
[email protected]