Lasting Powers of Attorney

The recent outbreak of the Coronavirus in the United Kingdom has impacted almost every aspect of daily life. This period of uncertainty has led many to cast an eye to the future, and for some, this has meant considering their arrangements for Lasting Powers of Attorney (LPAs).

Streathers has received an increase in enquiries concerning Lasting Powers of Attorney in recent weeks. Many of the questions posed have concerned whether or not our clients need a LPA, and if so, how they can go about making one whilst they are self-isolating or social distancing.

We have set out some of the most commonly asked questions below and collated all of the necessary information so you can make an informed decision about whether or not this is something you need to consider further.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney, also known as a LPA,  is a legal document which allows a person (known as a “donor”) to choose one or more people (known as “attorneys”) to make decisions and take actions on their behalf.

There are two types of LPA which are independent of each other. One deals with financial and property affairs and the other deals with health and welfare decisions.

They are primarily intended for use when a donor has lost capacity and is unable to make decisions themselves, but in certain instances, can be used when the donor still has capacity but wishes someone else to act under a LPA for convenience. This can be particularly useful for vulnerable individuals that are in self-isolation as part of the government’s guidance.

Who can I appoint as my attorneys?

You can appoint any individual to act as your attorney but most commonly, a donor will choose a family member or friend. If appropriate, you can appoint a suitably qualified professional to act as your attorney.

What sort of decisions can my attorneys make?

Under a LPA for financial decisions, attorneys are given authority to manage and make decisions about the donor’s finances and property. This may include dealing with the donor’s finances, bank accounts, tax affairs or  buying and selling property.

Under a LPA for health and welfare decisions, attorneys are given authority to make decisions about the donor’s care and medical treatment. This may include dealing with the donor’s accommodation and other care arrangements, and if the donor has given them authority, the attorneys may also consent to or refuse medical treatment on the donor’s behalf.

Do I have to have both LPAs?

Not at all. You can have one, the other, or both.

How do I make a LPA?

Broadly speaking, there are three stages to completing a LPA: (1) preparing the LPA for signature; (2) executing the LPA; and (3) registering the completed LPA with the Office of the Public Guardian.

Taking each stage in turn:

• Preparing the LPA – LPAs are in a government prescribed form and need to be completed with the donor’s details, details of the chosen attorneys (and any replacements), and with any restrictions or express instructions to apply under the LPAs.
• Executing the LPA – There is a strict formality to the execution of LPAs. The LPAs must be signed by the donor in the presence of a witness and also by the attorneys in the presence of a witness.

Someone also needs to sign a certificate in the LPA confirming they have discussed the contents of the LPA with the donor and that they are satisfied that the donor understands what they are signing and is not under undue influence to sign. This is usually a professional such as a solicitor or medical practitioner or someone that has known the donor for at least two years.

• Registering the LPA – Once completed, the LPA must be registered with the Office of Public Guardian before they can be used. There is a fee payable to the OPG of £82 for each LPA submitted for registration.

I am social distancing. How do I have my LPA correctly executed?

The social distancing measures enacted by the UK Government present difficulties in arranging independent witnesses to be present when the LPA is signed as well as seeing a relevant professional to have the certificate of capacity signed off.

Taking each of these issues in turn:

Certificate Provider

Visiting a professional or a friend who has known you for in excess of 2 years may not be possible at the moment in accordance with the latest government guidance. However, one of our private client solicitors at Streathers is able to act as the certificate provider for your LPAs.

In order to sign this certificate, we will simply need to arrange a video conference with you within which to confirm your identity and to discuss the LPAs so we can sign the certificate.

Witnesses

The role of the witness is not to review the contents of the LPA, but to simply confirm that the donor or attorneys, as applicable, are signing the LPA, and so, there are many practical ways that this can be achieved whilst complying with the social distancing guidelines (such as a neighbour witnessing through the window, or from across your garden, etc.).

Also, the donor and the attorneys do not need to meet in order to sign the LPAs and each can deal with their respective obligations separately where necessary.

We can assist you throughout this process by providing detailed guidance on how to ensure your LPAs are validly executed whilst complying with the social distancing guidelines.

How long does it take to register a LPA and should I expect any delay?

Usually, the Office of the Public Guardian take around eight weeks to register a LPA.

The OPG’s latest guidance states that they are still aiming to meet this timeframe, but they have warned that some delay may be inevitable as offices are working with skeleton crews and staff members may be away with illness.

It is therefore important that any applications for LPAs are submitted as soon as possible so that they can be available for use when required.

What happens if I do not have a LPA and I lose mental capacity?

If you lose mental capacity and do not have a LPA in place then your family members/friends will not be able to lawfully make decisions or take action on your behalf.

If it were important that someone manage your affairs whilst you were unable to, an appropriate individual would have to apply to the Court of Protection to be appointed as your “deputy”.

A deputy has functions and responsibilities similar to that of an attorney. However, applications to court can be time consuming, complex and expensive and there is no guarantee that a deputyship order will be granted or that the person looking after your affairs is the person that you would like to appoint.

What if I change my mind?

You can cancel or revoke your LPA at any time while you still have the capacity to do so, by sending formal notice to the Office of the Public Guardian.

Streathers can assist you throughout each stage of this process giving you advice on the content of the LPAs, their valid execution, and undertaking the registration with the OPG on your behalf.

If you would like to find out more about Streathers LPA services, then please contact a member of our Private Client Team who will be pleased to assist you with the process.