Posted: Monday, 27 April 2020 @ 11:57
What
is a Lasting Power of Attorney? 
A Lasting
Power of Attorney (LPA) is useful tool when people become incapable of running
their own financial affairs. An LPA allows someone, of the donor’s choice, to
step in and take control of the donor’s finances.
Because of the
great power the LPA gives them, attorneys are often trusted friends or family
of the donor. However, where attorneys abuse this power, measures must be taken
to protect the donor. This is particularly important when the donor cannot
protect themselves or even complain about the way their attorney is acting.
Adults aged 18
or over with the capacity to make decisions can make provision for the event
that sometime in the future they may lack capacity to make certain decisions.
This can be
done by giving another person Lasting Power of Attorney (LPA) - the authority
to act on their behalf or by making advance decisions to refuse medical
treatment.
People given
formal powers under LPA to make decisions on behalf of adults who lack capacity
are bound by the Mental Capacity Act and its Code of Practice. They have a
statutory responsibility to act within the limits of the powers given to them
always to act in the person's best interests.
Adults who
lack capacity and do not have such formal arrangements and require significant
decisions to be made may be subject to a best interests meeting or the issue
may need to be taken to the Court of Protection. The court may appoint a deputy
to act as decision maker or make a declaration about what is in the person's
best interests.
Two Types of LPA
There are two
types of LPA: personal welfare and property and affairs.
LPAs are legal
documents and are only valid if completed on the statutory form
LPAs must be
signed by the donor
LPAs should
normally name people who should be informed when it is to be registered.
LPAs must
contain a certificate completed by an independent third party
LPAs must name
the person (or persons) who is to act as attorney.
LPAs must be
registered with Office of Public Guardian (OPG) before they can be used
If registered
some time ago and not used, the attorney should inform the OPG when they start
to act under it
LPAs may have
restrictions or conditions.
There are some decisions that can never be
delegated to an attorney.
Attorneys
should never be a professional/paid carer who is or is likely to be involved in
the adults care or treatment - the only possible exception being that they are
a close relative
Attorneys can
only make decisions prescribed in LPA, and must carry out the donor's
instructions, i.e. they cannot assume decision-making for any other matters.
They may be
consulted, if appropriate, over other matters unless there are explicit
instructions not to
Property and
affairs attorneys should keep accounts.
An LPA regarding finance would be
immediately effective unless the person specified at the time that this should
not occur until they have lost capacity to make decisions in this area.
Enduring Power of Attorney
An enduring
power of attorney (EPA) is a document that appoints someone (‘an attorney’) to
help manage your property, money and financial affairs.
Your attorney
will be able to help you make decisions or make decisions on your behalf if,
for example, you have an accident or become ill and cannot make a certain
decision at the time it needs to be made (you ‘lack mental capacity’).
The EPA was
replaced with the property and financial affairs lasting power of attorney
(LPA) in October 2007.
Government Guidance Shows Doing An LPA Is Doable in Covid 19 World Albeit Requires Thought
If you need to make an LPA now, you can still do so while observing government guidance on social distancing, self-isolating and shielding.
The guidance on this page was updated in April 2020 and you should look at this..
The primary issue is signing the document.
Because of the current social distancing rules, you should not go into anyone else’s house to get them to sign the LPA or ask anyone to come into your house. Instead use other ways to get the LPA signed and witnessed.
For example, you can post the LPA to the people who need to sign it.
If they live within walking distance, you could take the LPA to the people who need to sign. However, you must:
keep at least 2 metres away from each other at all times
wash your hands before and after handling the LPA
Do not:
use digital signatures - the document must be printed out and signed by hand with a black pen
send people photocopies or scans of the LPA to sign - everyone must sign the same, original document
ask people to send you a scan or photocopy of the page they’ve signed - we cannot register an LPA that includes scans or copied pages
With respect to the actual witnessing the donor and attorneys’ signatures someone must watch the donor signing the LPA, then sign it themselves to say they’ve witnessed the signature. Each attorney and replacement attorney’s signature must also be witnessed.
A neighbour can witness a signature, for example, on the doorstep or over the garden fence. However, they should keep at least 2 metres apart.
You cannot witness signatures over video calls, such as Skype or FaceTime. Signatures must be witnessed in person.
If the donor cannot sign the LPA
If the donor is not able to use a pen and cannot sign the LPA, someone else can sign on their behalf.
The donor and two other people must be there in person to witness the signature being made.
The two witnesses must also sign the LPA.
All the rules on witnessing above apply. The LPA is signed in the right order or it cannot registered.
If you are close to Stansted, our firm can arrange the witnessing process.