Information for banks

What is the access to funds scheme?

An adult may be unable to manage their affairs due to an illness or an accident. The scheme is designed to enable access to the funds of an adult held in a bank or building society, where there is no continuing attorney, financial intervener or financial guardian to do so.

What is the role of the Public Guardian?

• To authorise applications which meet the criteria and issue a certificate of authority
• To supervise arrangements under the scheme;
• To provide advice and guidance;
• To maintain a register of persons appointed under each provision of the legislation.

What is your role as fundholder?

There are 3 likely scenarios where your bank/building society could be involved.

1. Providing information about the adult’s bank account

Where someone is thinking about making an application to access an incapable adult’s funds, they may have little or no knowledge about the adult’s finances to decide if the scheme is going to be suitable.

By making an application to us, the proposed withdrawer can ask for authority to access the necessary information about the adult’s bank account. We can issue a certificate authorising a proposed withdrawer to approach fundholders with a view to identifying:

• what accounts they hold in the adult’s sole name
• where the account is held
• the account details
• the type of account
• how much is held in the account
• and any other information needed to complete an access to funds application.

A fundholder is obliged to provide the necessary information as detailed on the certificate.  When we issue a certificate we also provide useful information to the fundholder.

2. Opening a new bank account for the adult

The adult may not have an existing bank account.  Any person with an interest in the adult's financial affairs can make an application to the Public Guardian for authority to open a bank account on behalf of the adult. The certificate issued by the Public Guardian will give you the necessary instructions to follow.

3. Setting up the designated account

When we grant authority under the access to funds scheme we will issue a certificate of authority to the withdrawer and provide useful information to the fundholder. The withdrawer will present the certificate to the fundholder, as this contains specific instructions. The fundholder must only perform the instructions as specifically identified in the certificate.

There are two roles that might involve a fundholder. They may be the holder of the adult’s own bank account, referred to as the ‘current’ account and it is from this current account that an agreed amount is transferred each month to a ‘designated’ account.

The designated account is the account which the withdrawer has authority to open and access and is held in the name of the withdrawer on behalf of the adult. The account need not necessarily be held with the same fundholder as the current account.

The withdrawer must not be given direct access to any account other than the designated account.

What you need to know about the adult’s ‘current’ account

• All accounts which are in the adult’s sole name must continue to be so. Under the scheme there is no provision to add the withdrawers’ names to the adult’s account(s). A withdrawer has no authority to access any funds in the adult’s accounts other than what is in the designated account. Funds will continue to belong to the adult;
• Credit transactions can continue on the adult’s accounts;
• Existing direct debits and standing orders can only continue if specified in the certificate of authority issued by the Public Guardian. Otherwise all other existing debit transactions will cease from the issue date of the certificate of authority;
• The legislation provides that none of the accounts are allowed to become overdrawn;
• Apart from credit transactions no further activity is allowed on the accounts other than those specified on the Public Guardian’s certificate of authority.

What should the fundholder of the adult’s current account do?

• always ask to see the certificate;
• carefully note the date of expiry as this is when authority ceases;
• only put in place arrangements which are identified in the certificate;
• continue credit transactions;
• terminate any standing orders/direct debits that were previously arranged on the adult’s account, unless it is detailed on the certificate that they should continue.

What should the fundholder of the designated account do?

• set up the designated account as per the instruction on the certificate
• ensure the account does not receive any funds other than those specified on the certificate of authority;
• only allow the withdrawer to operate the account;
• make sure the account does not become overdrawn.

The fundholder’s liability

The fundholder is liable to the adult for any funds removed from the adult’s account at any time when it was aware that the withdrawer’s authority had been terminated or suspended by the Public Guardian. In meeting such liability, the fundholder of the account has a right of relief against the withdrawer.

What happens if the adult dies?

The certificate of authority will cease to have effect on death of the adult.

Is there any information for fundholders on their duties and responsibilities?

Yes. Further information can be found in the Scottish Government Code of Practice.