LPAs in Lockdown (Round 2)06 Nov 2020 // Insights
Head of Private Client Stuart Crippin and Solicitor Natasha Southam outline the benefits of making Lasting Powers of Attorney ("LPA").
As England enters a further period of national lockdown, Covid-19 and the associated uncertainty around many people’s health and finances has undoubtedly focused the mind on what can be done to ensure one’s affairs are in order. Such unprecedented times highlight the need to protect against life’s uncertainties, and the extent to which vulnerable individuals and the elderly are more at risk of financial abuse and neglect if these protections are not in place.
This has been starkly illustrated by the recent and sad case of a retired nurse being arrested for attempting to take her 97-year old mother out of a care home before the new national lockdown began. Having valid LPAs in place is vital for demonstrating who has the appropriate authority for taking financial and welfare/medical decisions for someone who is unable to make those decisions for themselves.
Understandably, people will be concerned about how they can make LPAs whilst adhering to the social distancing measures, especially during this further period of national lockdown. Indeed, some of the people most in need of an LPA may well be self-isolating. The self-isolation and social distancing rules could leave the elderly and incapacitated more vulnerable to financial abuse if the correct protective measures are not in place.
What are LPAs and how does having one in place help me?
LPAs can be made in respect of a person’s property and financial affairs and, separately, their health and welfare. They are legal documents which permit the donor to appoint an attorney (or attorneys) to act on their behalf if they are unable to make decisions themselves. This could be, for example, if the donor is unwell, unable to leave their home, or undergoing treatment in hospital.
LPAs are the best means of ensuring that the donor’s wishes are followed in the event of incapacity and are a protection, especially from potential financial abuse. They enable the donor to appoint individuals the donor trusts implicitly to manage their personal affairs and to make decisions for them. Financial Decisions LPAs can be used by the attorney either immediately with the donor’s consent or only when the donor has lost mental capacity. Health and Care Decisions LPAs can only be used by the attorney when the donor has lost mental capacity.
A separate LPA can also be made for a donor’s business, to ensure that the correct individuals are appointed to allow for business continuity whilst the donor is incapacitated. This would normally be more relevant to sole traders or small businesses which are very much reliant on certain individuals running them effectively and where there are no shareholder agreements or similar in place to set out what should happen in their unavoidable absence.
Once the LPAs have been fully signed, dated and witnessed, they need to be registered at the Office of the Public Guardian (“OPG”).
LPA signature requirements
Despite these unprecedented circumstances, it is vital to obtain specialist advice and follow the formalities to ensure that the LPAs are valid and that the donor’s wishes can be fully implemented.
LPAs are deeds and must be signed in accordance with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, whereby the donor and all appointed attorneys must sign in writing and in the presence of one independent witness, who must be over 18 years of age. There is also a strict order of signing which must be adhered to.
The OPG will reject applications to register LPAs if these formalities are not strictly adhered to, wasting both time and fees. Of course, if the LPAs are needed urgently, rejection of the applications by the OPG can prevent the donor’s wishes from being followed. It can also prevent those closest to them from being able to make the final decision. This is particularly important when it comes down to making difficult decisions about life support.
It is now possible to use an electronic signature to execute certain documents (including commercial contracts and deeds) provided that the signatory of the document intends to authenticate the document and that any specific formalities relating to execution of that document are satisfied.
However, this is not possible in the case of LPAs, where wet-ink signatures are required for valid execution.
The main requirement is that the donor and the attorneys sign in the presence of a witness. At present, this requirement is much more difficult to adhere to than usual. Given the new period of national lockdown, it is essential to follow the rules and to have due regard to the Government’s guidelines. Professional advice should be sought in that regard before any action is taken.
The witnesses do not need to be the same for the donor and the attorney(s). The important thing is that the witnesses are completely independent, have mental capacity and are over the age of 18. It would usually be possible to call on neighbours, or perhaps nearby colleagues and/or friends, to act as the independent witness but, of course, the national lockdown makes this much more difficult. Nonetheless, the following options may still be possible but, as mentioned, professional advice should be sought first.
The donor/attorney and the chosen witness could sign on either side of a window or a glass door. The donor’s/attorney(s) signature could then be clearly witnessed before being passed through the window or letter box for the witness to sign in their presence.
An alternative option could be for the LPA, or LPAs, to be laid out on a surface in a garden or in a driveway, or passed over a fence, for example. The donor or attorney, and their chosen witness should position themselves at least two metres apart from one another and then take turns to sign the requisite signature pages with the other party watching.
All parties must wash their hands before and after the signing process. Different pens should be used to reduce the risk of cross-contamination.
A certificate provider is also required when making an LPA. Individuals who have known the donor for at least two years can act as certificate provider or it can be a legal or medical professional.
Importantly at this time of national lockdown, their signature does not need to be in the presence of the donor. However, they must certify that the donor understands the contents of the LPAs and the powers that they are conferring on their attorneys.
In usual circumstances, it is best practice for the certificate provider to have a physical meeting with the donor to confirm these points. However, in the current climate, video calls may be an appropriate alternative Please note that more stringent measures and / or specialist advice does need to be taken if there are any questions over a donor’s capacity.
This article follows on from LPAs in Lockdown, which can be read here.
Still By Your Side
The Private Client team at Seddons continues to operate as normal and the team is here to listen, advise and prepare your LPAs for you in line with your instructions.
We are all working remotely and can arrange to speak to our clients, over the telephone or via video call, so that we can clearly understand their wishes, intentions and objectives. Instructions can be taken via Facetime or a preferred video conferencing app. We are maintaining contact with our clients to provide advice via these means and alongside the normal telephone and email contact.
In the case of LPAs, we take particular care to ensure that there is no third-party pressure into making decisions which do not reflect the donor’s wishes. We also have a network of trusted and specialist capacity assessors who can conduct video mental capacity assessments where this is appropriate.
The OPG is still operating as normal and states that it is currently adhering to its 40-day turnout around times. However, this may of course be subject to change as the pandemic develops.
The information provided in this article is for general guidance purposes only and you should always take professional legal advice before preparing and signing your LPAs to ensure that they are validly signed and witnessed.
If you have any questions regarding this article or any other matter relating to your personal affairs, please get in touch with your existing Seddons’ Private Client contact or the Head of the Private Client team, Stuart Crippin, at firstname.lastname@example.org, or on 020 7725 8056.