News & Legal Updates
Sign up to news & legal updates
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.
The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.
Blackadders takes all reasonable steps to ensure that the content of this site is accurate and up to date. The site is not, however, intended as a substitute for seeking legal or other professional advice but rather as an informative guide to the services provided by Blackadders and topical legal developments. Site visitors should always seek advice tailored to their specific situation. Consequently, Blackadders accepts no responsibility for any loss or damage suffered by anyone acting or failing to act on the basis of information contained on this site. Downloading of material contained on this site is at the user’s own risk and all necessary virus checks must first be carried out by the user. Blackadders is not responsible for the material found on any web sites linked to this one and links to this site may only be made with Blackadders prior consent.
Blackadders owns the copyright in this blog and all material contained on it. The material on this site may be downloaded for personal use only and must not be altered. Otherwise, Blackadders’ written consent is required before any material on this site is reproduced, copied or transmitted in any way.
Information passed to us via this site is kept confidential and will not be disclosed to third parties except if authorised by you or required by law.
© Blackadders LLP 2011
Members of the Law Society of Scotland. Authorised to conduct Investment Business under the Financial Services & Markets Act 2000 by the Financial Services Authority.
Blackadders Solicitors is a trading name of Blackadders LLP, a limited liability partnership, registered in Scotland No SO301600 whose registered office is 30 & 34 Reform Street, Dundee, DD1 1RJ. Reference to a ‘partner’ is to a member of Blackadders LLP.Back to News & Legal updates