Age-related vulnerability as a risk factor for the breakdown of client relations
Over the last 45 years, life expectancy has dramatically increased around the world, to the point where the number of people over 60 is the fastest-growing. However, while 2/3 of people under 80 are in perfect health, ageing is not without its problems for financial organisations as it leads to vulnerability, for medical or psychosocial reasons. All the more so since this poorly anticipated vulnerability can lead to a breakdown in client relations. Why define a vulnerability policy? How to implement it? How to identify situations that present risks of vulnerability? Elements of response
WHY AND HOW TO DEFINE A VULNERABILITY POLICY?
Financial organisations provide services to clients who are going through difficult times and/or who are suffering from age-related illnesses or disorders. As a result, some of these clients may be particularly vulnerable. Yet,
- These clients must be able to exercise their rights in the same way as anybody else;
- Clients are committed to the safeguarding of banking confidentiality and privacy;
- We must safeguard against possible lawsuits for abuse of states of weakness.
As a result, companies that take into account their clients' vulnerability not only promote the safety and well-being of vulnerable people, but also have a positive impact on their own reputation. Anticipation guarantees reliability and fluidity in business relations. It is therefore necessary to train staff to listen and understand, to provide them with flexible options and, where appropriate, enable them to refer particular problems to specialists inside or outside of the company, who have the expertise and discretion to deal with difficult situations.
ASSESSING VULNERABILITY: THE BENEFITS OF KYC
The challenge for a financial institution lies in assessing the situations that can lead to client vulnerability. Indeed, the latter is multifactorial. Thus it is quite possible to maintain without any particular problems a business relationship with a client over 80 showing no vulnerability. Conversely, people under 60 may already show signs of vulnerability. Only a thorough analysis of each person's situation will we be able to identify potential vulnerability.
- Mourning (for someone very close or repeated bereavements of people from a wider circle)
- Loss of autonomy
- Lack of language proficiency
These different elements are indicators, isolated or combined, which must alert of any possible vulnerability situation, to be taken into account in the client relationship. And this is again to safeguard both the client and the establishment. However, in order to identify these indicators, it is imperative to integrate them into the KYC process, which then becomes twice as efficient (on the one hand to combat money laundering and terrorist financing, and on the other hand to identify vulnerable persons).
EXAMPLE OF PROCEDURE TO BE IMPLEMENTED
- Audit the client's file and identify people at risk; implement an in-house procedure for dealing with vulnerability.
- Establish a "progress form" to note all the key stages in the relationship, any important dates (establishment of a curatorship, for example), set deadlines to refocus the relationship. Regularly document/verify the powers of legal representatives. Schedule interviews.
- Establish in writing the agreed methods of communication with the client, who may not have integrated the new methods of communication (this also helps to identify anything suspicious). If the client is in a nursing home or reliant on a third party, particular attention must be paid to safeguarding the client's banking secrecy and privacy.
- Establish whether an adequate proxy has been appointed: it is important to check their age, their relationship with the holder, the degree of involvement with the holder (a nurse, a carer, a neighbour, etc.) and the influence they are likely to exercise on the holder.
- Manage the scope of powers entrusted to the proxy in order to preserve the client's interests.
- Consider their ability to give instructions.
- Suggest the client sets up a power of attorney for personal care: art. 360 to 369 CC.
- Periodically check that the objectives initially assigned by the client are respected.
If it is too late and contact is lost
- Inquire about the client's situation and determine the circumstances that prevent them from contacting their bank. Determine the degree of severity.
- Check if legal measures have been taken to appoint a legal representative to safeguard the person's interests.
- Confirm whether the measures automatically applied to persons incapable of judgment (articles 374 to 381 CC) are appropriate to the circumstances: Spouses/registered partners right to legal representation. Spouses and registered partners living with a person incapable of judgment have the right to legal representation in the absence of curatorship or a power of attorney for personal care. This right is limited however, and allows, for example, only "ordinary" management of income and wealth. In case of impaired judgment, the competent child and adult protection authority (APEA) appoints a curator ex officio or at the request of a relative of the person incapable of judgment. Their skills go beyond the right of legal representation but have their limits. Not even a curator can act "as they see fit" and they must obtain APEA approval for certain transactions (exhaustively listed by law), such as the purchase or sale of real estate. In addition, the APEA reviews the curator's annual financial report and activity report.
KEY FINDINGS: YOUR TOOL FOR MANAGING VULNERABILITY
Of course, managing the situation will also depend on the holder's nationality and place of residence. Under these circumstances, the procedure for finding out about the situation will often require a field investigation, obtaining the appropriate documentation, if necessary, translated, certified and apostilled, which in some countries is a real headache. These are the exercises that we have broken down and we can, if necessary, provide useful assistance on the matter. Feel free to contact us to help you with any queries.