It’s that time of year again when everyone is rushing to submit their tax returns by 31 January. But little did I know that I also had to submit a tax return for my father who has dementia and has lost mental capacity to handle his own financial affairs. I won’t be the only attorney who has to do this, so this is a short guide to understanding what your duties are as an attorney under a Lasting Power of Attorney.
As seen in the…
MyPOA and our editor Rebecca Seeley Harris feature in the article in The Sunday Times on 14 January 2024 Why you need a power of attorney, on submitting the tax return last year.
Submitting a tax return
Firstly, all the same rules apply to you as an attorney submitting a tax return on behalf of the donor. You have to comply with the same deadline and if you don’t you will get a penalty for late filing. The penalty is £100 for filing up to three months late and you will get charged interest on the amount until it is paid. You can appeal against the penalty if you have a reasonable excuse.
You can start with the Tax Return Notes SA150 guidance supplied by HMRC on How to fill in a Tax Return. On page 15 of the guide, it explains that you will need to fill in boxes 23-26 if you have an enduring or Lasting Power of Attorney to act on behalf of someone who is not physically or mentally capable of filling in a tax return. If you have not previously sent evidence of your appointment, you need to send the original document, or certified copy, with this tax return. Unfortunately, HMRC will not accept the digital code provided by the Office of the Public Guardian so, you do have to send in the paper document. If you send a certified copy it should be signed and certified as a true and complete copy, on every page, by either the donor of the power, a solicitor or a stockbroker. HMRC say they will send it back to you within 15 working days.
I would advise not to send the original, in fact, never send the original unless absolutely necessary. It is far better to get a few certified copies made in advance and use these because if it gets lost you still have the original. If the original does get lost or mislaid, you can ask for an ‘Office Copy’ from the Office of the Public Guardian (OPG). This is a copy of the original but, stamped and authenticated by the OPG.
Trusted helper
It is only if the donor has officially lost mental capacity and you have Power of Attorney that you will be able to sign the tax return as the donor’s representative. The donor may, however, still need help but if they have not lost capacity how can you help them? There is a very useful guide on the Low Incomes Tax Reform Group website which states the following:
If you want your family member or friend to help you manage your tax online, they need to be registered with HMRC as a ‘trusted helper’. Please note that a trusted helper can only help you with limited tasks, such as checking you are paying the right amount of income tax, checking or updating your Personal Tax Account or requesting a tax refund. A trusted helper cannot prepare or submit a tax return on your behalf.
The trusted helper or an agent or accountant, for example, can only help whilst the donor still has capacity. Once the donor has lost mental capacity to manage their own financial affairs, the only person who can deal with the tax return is the person(s) who has the power of attorney. If a power of attorney has not been granted, the individual will need to apply to the court to become a court-appointed deputy.
Paper tax return
As an attorney, however, you cannot file the tax return online so will have to submit the return in paper form. Remember though that there is a different deadline for filing a paper return which is the 31 October.
