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MLR requirements under power of attorney

is the solicitor wrong, or is it me?

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I am acting for a client under lasting powers of attorney for a client who has lost mental capacity.  

The attorney is the daughter, who is an existing client, and all MLR compliant.

They are selling the old family home which has been rented out for some time (hence our involvement),  and the conveyancing solicitor is now seeking to rely on our MLR check on the client on the basis that they tried running one on the client, but its failed for the obvious reason the old girl is in a care home and has nothing in her name, no passport and her driving licence long since rescinded. 

Solicitors are adamant that the checks need to be made on the old girl and not the daughter and threatening to report us for failures in MLR policy on the basis we don’t have MLR proof on file they can rely on.  Cheeky doesn’t come close!

I am adamant they need a certified copy of the LPA, and to ID the daughter and to back off my case.

Am I going Jan mad?  Or does the solicitor need to wind their neck in?

Replies (12)

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By Cheshire
19th Jan 2021 17:50

Sorry cannot actually answer, not one Ive had the pleasure of dealing with. Although interested due to the potential for such issues in future with my Dad.

The cheek of the solicitors in their threat though. Wonder what they would do if you told them that you had ID but you are refusing to allow them to rely on it? (not that Im advocating that before anyone jumps on me).

Do you have a certified copy/original of the certificate?

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Replying to Cheshire:
By ireallyshouldknowthisbut
19th Jan 2021 18:29

The threat has arisen as I said blanket they could not rely on our MLR (happy to be responsible for myself but not a 3rd party) and now they have said to the client I am holding up the sale due to this stance as they cant ID the old girl. They seem to think I am being awkward - which to be fair i am - and it will flush out ID by threatening me, but its just got my back up and I cant give 'em what I don't have and I don't think they need.

I have a certified copy of the LPA, indeed it came from the solicitors originally. They prepared the thing.

Client of course is being told one thing by me, and one thing by the solicitor.

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Replying to ireallyshouldknowthisbut:
By williams lester accountants
20th Jan 2021 07:46

If they prepared the LPA, did they not ID the client at that time?

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Replying to williams lester accountants:
By ireallyshouldknowthisbut
20th Jan 2021 09:00

@williams lester, the point did occur to me, but to be fair this was 5+ years ago. This is why I don't like 3rd party reliance, as invariable ongoing checks don't involve much more than being aware of what is going on. There is no formal requirement to re-run ID checks for existing clients albeit some accountants seem to do this.

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By Wanderer
19th Jan 2021 18:32

Refer the solicitors to Regulation 39 of the MLR and say you aren't willing to enter into any such arrangement with them. That puts the ball in their court.

If they still make threats refer them to the reply given in Arkell v Pressdram.

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By mrme89
19th Jan 2021 20:02
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By jwgrogan
19th Jan 2021 20:44

Don't know whether this is the most recent guidance, but:

Joint Money Laundering Steering Group
GUIDANCE FOR THE UK FINANCIAL SECTOR PART I
5.3.99
When a person deals with assets under a power of attorney, that person is also a customer of the firm. Consequently, the identity of holders of powers of attorney should be verified, in addition to that of the donor.
5.3.100
Other than where the donor or grantor of a power of attorney is an existing customer of the firm, his identity must be verified. In many cases, these customers may not possess the standard identity documents referred to in paragraphs 5.3.75ff, and firms may have to accept some of the documents referred to in paragraph 5.3.115. There may also be cases where the donor or granter is not able to perform face-to-face identification (e.g., disabled, home bound, remote location); due consideration should be given to the individual’s circumstances in such cases.

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Replying to DJKL:
By ireallyshouldknowthisbut
20th Jan 2021 08:57

@DKL, that's perfect. I can quote that to the solicitor, copy my client in and try not to look too smug at the same time.

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Replying to ireallyshouldknowthisbut:
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By Cheshire
20th Jan 2021 13:06

Oh, look smug! Brilliant DJKL.

Do let us know how you get on.

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Replying to Cheshire:
By ireallyshouldknowthisbut
20th Jan 2021 17:14

I have had no response, but equally no further calls or emails from the plonkers which suggest they have backed off for now.

I think that's a virtual dram to DJKL. Make it a treble.

Thanks Aweb, its help like that which really helps the sanity.

I will have to casually ask the client if everything is now going OK in a couple of days is the don't get in contact....

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Replying to ireallyshouldknowthisbut:
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By Paul Crowley
20th Jan 2021 17:25

Still difficult to believe a professional firm of solicitors would act so belligerently. I can only assume they consider accountants as untermenschen.
Never come across such a firm, and hope never to do so

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