22 Jan 2018
The mention of the Computer Misuse Act 1990 (the 1990 Act) brings to mind hackers sat in darkened rooms infiltrating the government’s top secrets and none of us would, hopefully, imagine committing an offence under it. However, the Act reaches much further and many of us may innocently find ourselves on the wrong side of the law.
Imagine the situation where a family member requires care and for ease and convenience asks that you access their online banking to make payment of the costs. They provide you with their login details and you set up transfers as required.
The 1990 Act prohibits gaining unauthorised access to ‘computer material’, which includes online bank records. While the account holder has provided you with their login details, the bank has not authorised you to gain access to their records and that’s when the problems start. You, innocently accessing your relatives account to help them out, could be deemed as an offence under the 1990 Act.
On the other hand, care providers also have to be wary of the risk that they expose themselves to in accepting payments made by family members. The Proceeds of Crime Act 2002 (the 2002 Act) makes it an offence to knowingly acquire, use or possess criminal property; such offences are commonly known as money laundering. Criminal property would include any funds transferred to the care home by an online transaction in contravention of the 1990 Act. If the care provider had knowledge, suspicion or reasonable grounds to suspect that the monies were being transferred by an unauthorised transaction then they have committed an offence. There would also be further offences committed should the care provider then transfer the monies elsewhere. What looked to be an innocent transaction could grow to be something much worse.
Care providers would find it very difficult to defend such an offence, particularly if they are aware that the monies are being sent electronically but that the individual does not have access to any electronic devices. Such an offence carries a maximum sentence of 14 years imprisonment and may lead to other enforcement proceedings under the 2002 Act.
In order to protect themselves, care providers should be ascertaining from their customers how payments are being made. If there is any suggestion that family members will be making payments electronically, the care providers should refuse such payments.
A Continuing Power of Attorney would allow you to appoint a person who can deal with your finances on your behalf, which could include the power to obtain access to your online banking and the delegation of other transactions. Care providers should always ensure that where payments are received via a third party that there is a Power of Attorney or Financial Guardianship order is in place.
For more information on Powers of Attorneys and how to appoint one please contact the Blackadders Private Client Team.
By Susan Henretty, Trainee Solicitor, Private Client, Blackadders LLP, @susanhenretty, www.blackadders.co.uk