Data Protection

Do you hold mailing lists or information about customers, suppliers and other individuals? If so, you may well need to be registered under the Data Protection Act and also comply with the privacy protection and other measures in the Act. Recently the Information Commissioner found that Orange Personal Communications Services had not processed personal data properly. New members of staff were allowed to share usernames and passwords when accessing the company IT system. In a separate case, it also found that Littlewoods Home Shopping had breached the Act in a case where a customer could not stop the company using her data for direct marketing even after she informed them.

Matthew Bailey says:

“The July Annual Report of the Information Commissioner describes many recent breaches of the law by businesses. We advise a wide range of clients on their obligations under the Data Protection Act 1998 and related regulations. At present the IC is consulting on a new code to replace the current Code of Practice on CCTV under the 1998 Act. All those who use CCTV at work need to comply with the current code until the new one is in place. It requires signs to be placed, amongst other requirements, so that people who are being filmed are aware of the filming.

In a related development, the European Court of justice held that the EU acted unlawfully in allowing private personal data about EU passengers traveling to the U.S. to be passed to the U.S. authorities without their permission. Therefore, a new solution had to be found. The EU has now come up with a new Passenger Name Records (PNR) arrangement. If you gather customers’ data and do mailings to them you should ensure you comply fully with the data protection rules. We can advise you on the law in this field and draft documents for you - such as employee email and internet policy documents for use with staff.”

Call Matthew Bailey for further information on 01329 822333

Lasting and Enduring Powers of Attorney

On 1st October, new rules on powers of attorney come into force. It is wise if people appoint a family member or other person to look after their affairs in case they are later unable to do so. Often this is on medical grounds if they develop a condition such as dementia. This can be arranged in advance and the power registered when it is time to take control of the person’s affairs.

John Guest says:

“Until 1st October individuals can sign an “Enduring Power of Attorney”. Until it is registered, they can change the person they nominate and it will only be operated when registered after they lose the ability to manage their affairs. From 1st October, a new system comes into force but along the same lines. However, it is more complex and involves two separate appointments – one for management of finances and one about medical and health matters. There may be some advantage, in terms of simplicity and lower costs, in setting up the old Enduring Power of Attorney now, before 1st October, after which new powers must be the Lasting Power of Attorney (“LPA”).

“Whether before or after that date however, either forms of power are a very wise precaution, particularly given the increasing numbers of older people who lose capacity, who live much longer than was previously the case and indeed, in some cases are subject to financial elder abuse by neighbours, carers and ‘new friends’.

Individuals can make two types of LPA :

• Property and affairs, similar to an EPA.
  
• Personal welfare, which can include provisions for giving or refusing consent to medical treatment in circumstances where the donor has lost the capacity to make such decisions themselves.

The LPA has resulted from the Mental Capacity Act 2005 which is just coming into force now.

There are five key principles in the Act:

• Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them, unless it is proven otherwise;
  
• Every adult must be given all possible help and support to make their own decisions, and to communicate those decisions where necessary, before they can be assumed to have lost capacity;
  
• Just because someone makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision;
  
• Anything done or any decision made on behalf of someone who lacks capacity must be done in their best interests;
  
• Anything done or any decision made on behalf of someone who lacks capacity should be the least restrictive of their basic rights and freedoms.

For further information to sign an Enduring Power of Attorney before 1st October, or after that date an LPA, contact John Guest on 01329 822333