You may be wondering whether you can still make and register a Lasting Power of Attorney (LPA) given that we find ourselves in a time of social distancing, shielding and self-isolation. The short answer is that yes, you can, however, there are a few things to consider.
What is an LPA?
An LPA is a legal document which allows you to appoint one or more people to make decisions on your behalf. There are two types, property & finance, and health & welfare. The property and financial LPA allows attorneys to make decisions such as selling your home, accessing bank accounts and dealing with pensions and investments. The health and welfare LPA can allow attorneys to make decisions relating to day to day medical care but also decisions relating to end of life care and life sustaining treatment.
The signing process
An LPA needs to be signed in a strict order: firstly, by the person making the LPA (the donor), then secondly by someone certifying that the donor currently has capacity to make the LPA (the certificate provider), and then thirdly by the appointed attorneys.
The signatures of the donor and their attorneys each need to be witnessed by an independent person. This cannot be over a video call – the witness must be physically present. It is also not possible to use digital signatures – the document must be printed out and physically signed – a scan or photocopy of a signature will not suffice. However, the donor, certificate provider and attorneys do not need each to be present to sign at the same time as each other – the document can be posted to the different parties to sign separately, each with their own witness.
The certificate provider
The certificate provider can be someone who has known you for at least two years, a legal professional or a medical professional. If a solicitor prepares the LPA then they will usually act as your certificate provider. However, if there is any doubt over mental capacity then it is best that the certificate provider is a medical professional. Ideally the certificate provider would discuss the document with the donor face to face. However, this is not essential – the conversation can take place via telephone or video call and then the document sent to the certificate provider to sign.
In order to be valid an LPA needs to be registered with the Office of the Public Guardian (OPG) once it has been signed. An LPA does not need to be registered immediately but the registration process can take three months, so we generally advise clients that they do so, in order that the LPAs are ready to be used if they are needed. The only difference with the registration process currently is that it is taking the OPG even longer than three months to register the documents.
If you lose mental capacity and do not have an LPA in place then, depending upon the decisions that need to be made on your behalf, it may be necessary for someone to apply to become your deputy. This is a similar role to attorney, but a key difference is that there are annual reporting requirements to the Court of Protection. The application to become a deputy can be lengthy, stressful and costly for those involved and so the better alternative is to have an LPA in place. However, there can be ways for people to help before an LPA is in place.
Alternative options for property and financial decisions
If there is an urgent need for someone to be appointed to deal with property and financial affairs, then a general power of attorney could be a simple alternative. A one-page document, although this only lasts for a year and cannot be used if the donor loses capacity, it could be a stop gap. If it is just bank accounts that need accessing then adding someone onto the bank account to make it into a joint account could be the answer, or a ‘third party mandate’ where you can authorise someone to carry out bank transactions for you.
If you have an old-style Enduring Power of Attorney then, as long as this has been completed correctly, this is still valid for property and financial decisions.
Alternative options for health and welfare decisions
An ‘Advance Decision’, also called a ‘Living Will’ is a document which lets people know about your wishes about refusing medical treatment in the future if you are unable to make or communicate those decisions yourself. As long as it meets certain requirements, an Advance Decision is a legally binding document. An ‘Advance Statement’ on the other hand is not a legally binding document but records your wishes to guide family and health professionals in relation to your future care. At the very least you can speak to friends and family to let them know your wishes.
Why use a solicitor?
LPAs give a lot of power to your attorneys, so it is sensible to talk this through with a professional who specialises in them. They can discuss your assets and circumstances with you and make sure you do not fall into one of the many pitfalls when making these documents. We use our experience to make sure the forms are completed correctly, first time, so that the OPG do not charge you a second registration fee.
Don’t use Covid-19 as an excuse for delaying the preparation of LPAs. These are important documents that can save your nearest and dearest a lot of hassle in the future. Perhaps you have a friendly neighbour who can act as both witness and certificate provider – maybe signing in a garden or driveway. However, you do it, there are ways to put LPAs in place but also alternative options in the interim.
If you or someone you know requires legal advice or has a question regarding Lasting Power of Attorney, call us today on 0800 999 4437 or email firstname.lastname@example.org and take advantage of our complimentary initial consultation via telephone or video call.