July 9, 2020

LASTING POWERS OF ATTORNEY AND COVID-19

HOW LASTING POWERS OF ATTORNEY CAN HELP MANAGE THE AFFAIRS OF OTHERS

Social isolation and social distancing measures to combat the spread of Covid-19 have fundamentally changed the lives of millions. Across the country, hundreds of thousands of volunteers, family members and neighbors are going out of their way to help the vulnerable and isolated in society.

Beyond the daily acts of kindness and support that so many will continue to rely on, lasting powers of attorney (or LPAs) will be important documents during this time. They allow family members and friends to make important decisions on behalf of those who are unable to do so for themselves.

What is a lasting power of attorney?

An LPA is a legal document that allows an individual (known as the donor) to appoint one or more other people (known as attorneys) to act on their behalf. LPAs are commonly used where the donor has lost capacity and is unable to make decisions for themselves (for example, as a result of dementia or another medical condition), although their use and utility can extend beyond this.

What decisions can an attorney make using an LPA?

There are two forms of LPA:

  • an LPA for property and financial decisions: for example, to pay bills, manage property or investments and buy food; and
  • an LPA for health and welfare decisions: for example, to make decisions about medical treatment and where care can be received. This type of LPA can also extend the power to an attorney to give or refuse consent to the continuation of life-sustaining treatment.

Restrictions can be placed on decisions made by an attorney either by the donor or due to statutory provisions. We can discuss these in more detail if needed.

When can an attorney use an LPA?

LPAs can only be used once they have been registered with the Office of the Public Guardian (OPG). An LPA for property and financial decisions can, if the donor chooses, be used immediately after registration and before the donor has lost capacity. An lasting power of attorney for health and welfare can only be used once the donor has lost capacity. At the time of writing, the OPG has confirmed it is still open and registering LPAs, but that Covid-19 may delay timescales and limit the services they provide.

Can LPAs help during the Covid-19 crisis?

Yes. If a registered LPA is in place and, assuming there are no restrictions preventing its use, it could be extremely helpful during the ongoing restrictions.

A common situation may include an elderly relative who has gone into self-isolation and who has previously made and registered an LPA for property and financial decisions, appointing their children as attorneys. As long as the LPA allows them to do so, the attorneys will have the authority to use their parent’s bank accounts to pay bills and purchase food and other necessities on behalf of their parent.

I am an attorney for a relative. Can I use the LPA to purchase an iPad for their use so we can keep in touch while they self-isolate?

If a relative has the capacity and would like their attorney to do this, their bank account can be used to purchase this for them. The purchase can still be made if a relative lacks capacity, though the attorney must be sure they are acting in the donor’s best interests by doing so.

My relative has also asked me to manage their investments as they don’t feel able to anymore. Is this permitted?

Subject to the terms of the LPA, this is permitted but an attorney must be sure they have the knowledge and expertise to make sensible investment decisions. If they do not feel able to manage the donor’s investments, they should consider instructing a professional to do this for them. An attorney will need to check that an LPA specifically allows investment decisions to be delegated to a discretionary investment manager if they wish to adopt this approach.

What if my relative needs to go to hospital?

An attorney appointed by an LPA for health and welfare decisions, where a relative is unable to make decisions about their medical treatment, will have the authority to make these decisions on their behalf.

Does this cover all medical treatment?

This depends on the terms of the health and welfare LPA. Donors must confirm who has the power to make decisions about life-sustaining treatment in their health and welfare LPA: either their attorneys or their doctors. It is important to note that what constitutes life-sustaining treatment can vary dramatically depending on the medical condition.

How must attorneys act when making decisions on behalf of the donor?

When making any decision using an LPA, the attorneys must act in the best interests of the donor. Attorneys cannot benefit personally from using LPAs (for example, they cannot charge for acting as an attorney unless the LPA specifically provides for this) and should make every effort to involve the donor in decision making.

Can I make a lasting power of attorney now?

Yes, but it will be more complicated than normal and could take considerably more time to register. This is because the donor and attorneys must sign an LPA in the presence of an independent adult witness who is not an attorney. In addition, an independent ‘certificate provider’ must confirm that the donor has capacity to make an LPA, understands its significance and is not being coerced.

Signing an LPA while not breaching the rules on social distancing will present a number of practical difficulties but it may be possible to overcome these. At present, electronic signatures or witnessing a signature via a video call is not possible. Talks remain ongoing about whether the rules can be relaxed to make this easier, while at the same time continuing to protect donors.

What happens if I do not have an LPA?

An application to court may be needed to manage an individual’s affairs if they lack capacity and do not have an LPA. The process can be both costly and time consuming for all involved, particularly under current circumstances.

Where an individual retains capacity and needs another to take immediate action on their behalf, there are some short-term measures to consider. Although these may be less versatile and wide-ranging than an LPA, they can still offer alternative support and options for the donor.

Can I provide guidance for my financial affairs without an LPA?

A general power of attorney can be prepared to address financial decisions, but cannot cover health and welfare decisions. A general power allows another to act on behalf of someone generally, or for a specific purpose. For coronavirus, it could be used to finance the purchase of food or other items where the donor is unable to leave their property. It is a less flexible vehicle than a property and financial LPA and crucially cannot be used once the donor lacks capacity.

Can I provide for my healthcare without an LPA?

An individual could prepare an advance decision. This allows them to make a decision now to refuse specified medical treatment at a time in the future, when they lack capacity to consent to that treatment. Any healthcare professional providing treating must adhere to an advance decision if it is correctly made and an individual lacks capacity to consent to such treatment at the relevant time. However, advance decisions are less versatile than a health and welfare LPA as they relate only to medical treatment and do not consider wider concerns such as healthcare needs or where a donor can live.

How can Penningtons Manches Cooper help?

The team at Penningtons Manches Cooper provides a complete service in relation to LPAs, ranging from their creation and execution to final registration.

At present, due to social distancing rules, we are unable to undertake any face-to-face meetings. Instead, we are communicating by video conference, telephone and email. It is ideal if an individual or a third party can receive, open and print documents sent by email. If not, there may be other options available that we can discuss. These restrictions should not prevent the preparation of an LPA or advising on its application if you are an attorney, but we will discuss its practical preparation with you as required. If you would like more information about making an LPA or wish to discuss any other matters of concern during these difficult times, please contact us.

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