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

08 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. We begin with the preparation of Lasting Powers of Attorney. 

When lockdown measures were introduced in March 2020, the challenges that vulnerable people faced when shielding and unable to leave their homes were pushed to the forefront of our practice. Many people sought assistance from family, neighbors and friends to assist with the management of their affairs. This led to an influx of enquiries relating to Lasting Powers of Attorney (“LPA”). As restrictions due to Covid continue we envisage this will continue to be a priority for individuals yet to make such provisions.

A LPA is a document which allows a person (“the Donor”) to nominate one or more individuals to assist with making decisions on their behalf (their “Attorney” or “Attorneys”). There are two types of LPA. One which allows Attorneys to make decisions about the Donor’s property and financial affairs, and the other which allows Attorneys to make decisions about the Donor’s health and welfare.

The process for entering into LPAs is heavily paper based and requires the signature of the Donor, all Attorneys and Replacement Attorneys named within the document, and all of these signatures must be witnessed.

A person must also be named in the LPA to act as Certificate Provider. This can be someone who has known the Donor for at least 2 years, who is not a family member and who sees the Donor at least once a month. Alternatively, the Certificate Provision can be an appropriately qualified professional. The role of the Certificate Provider is to ensure that the Donor knows and understands the authority they are giving to their Attorneys under the Lasting Power of Attorney and that they are not being pressurised into making the same. The Certificate Provider must also sign the LPA, but their signature does not need to be witnessed.

No changes have been made in relation to this process in light of Covid 19.  The LPAs must still be signed by the Donor, all Attorneys and all Replacement Attorneys, and all of these signatures must be witnessed. Preparing and arranging for LPAs to be signed in the current climate has therefore at times being extremely challenging. Fortunately, guidance for Certificate Providers has been issued, which suggests they can perform their duties remotely.

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During the initial lockdown we were also given Key Worker status which meant we could still travel to see clients at home.  To comply with lockdown provisions, it was necessary to witness documents in the garden or from the front gate with the clients being at the door and this became standard practice for us with those that were not shielding.  For those that were shielding, watching clients sign documents through their front window and having the LPAs posted back though the letter box so that we could witness was a strange but practical way of ensuring that the documents were validly executed, whilst ensuring no contact with the client. As restrictions persist this continues to be the case.

Once signed, a LPA can not be used until it has been registered with the Office of the Public Guardian. The Office of the Public Guardian has a statutory 4 week period which must elapse before the document can be registered. This has not been reduced during the pandemic and due to an influx of applications there has also been delays in receiving the registered LPAs by return. Delays can be extremely frustrating particularly when a Donor needs urgent assistance. Whilst interim measures are available (which will be discussed later in the series) it can be beneficial to consider making LPAs sooner rather than, later.

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.