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Life and death in a global pandemic - Lasting Powers of Attorney and urgency

11 Dec 2020

In a series of articles, we look back at how work in the Private Client sector has changed since the first national lockdown and how we can help clients as we move forward. Here we look at Lasting Powers of Attorney and urgency.

As mentioned in our previous article, there is a statutory 4 week waiting period when registering a Lasting Power of Attorney (“LPA”) and due to lockdown, there have also been delays in receiving the registered document with the Office of the Public Guardian (“OPG”). There can therefore be situations when an individual needs assistance urgently and an LPA will not be available for several weeks. For instance, where someone is shielding and needs someone to deal with a financial matter, it is not helpful if the process of registering an LPA takes too long.

As an interim measure, we advise clients to enter into a General Power of Attorney which would allow an Attorney to deal with the Donor’s financial affairs immediately.  This can then be lodged with banks and other financial institutions with whom the Attorney needs to liaise on behalf of the Donor.

The General Power of Attorney can be made so long as the Donor has capacity to enter into the document, and once executed it can be used immediately and does not have to be registered with any official body like the OPG. It can then be used for as long as the Donor still has mental capacity and wishes for their Attorney to act.

A General Power of Attorney can be entered into instead of an LPA, however, the authority given to an Attorney will come to an end if the Donor were to lose mental capacity.

It is therefore more often the case that a General Power of Attorney is entered into at the same time as the LPA, so that it can be used whilst the LPA is being registered. It is hoped that the Donor will not lose mental capacity in the time it takes the OPG to register the LPA. If a General Power of Attorney is being used in anticipation of a registered Lasting Power of Attorney being returned, then once the LPA has been registered and returned it is beneficial to lodge this with the relevant organisations in place of the General Power of Attorney as this will avoid any further delays in the future if the Donor were to ever lose mental capacity.

Coronavirus

It is worth noting that General Powers of Attorney only apply to property and financial affairs. If a Donor is concerned about health and welfare decisions being made on their behalf whilst awaiting the return of a registered Health and Welfare LPA, then they can enter into a Living Will, also referred to as Advance Decisions.

This would allow the Donor to set out the circumstances in which they would not want to receive treatment or specify types of treatment they would not wish to receive. This is a very prescriptive document in comparison to the Health and Welfare LPA which allows Attorneys to take the spirit of the Donor’s wishes and apply it to the specific circumstances that may be facing the Donor. However a Living Will can be very effective if there is a concern that the Donor may lose mental capacity prior to the registration of their LPAs and it is anticipated that decisions will need to be made at that time about the incapacitated Donor’s Health and/or Welfare.

For further information and to find out how we can help, please do not hesitate to get in touch with our expert Private Client Team.