As the number of coronavirus cases in the UK continues to rise daily, there has been an increase in the number of people wanting to make Lasting Powers of Attorney (LPAs) and asking whether this is still possible during the UK lockdown.
At Nelsons, not only have we seen an increase across the industry in the number of people wanting to make and amend Wills, we’ve also seen a rise in the number of enquiries relating to LPAs since the coronavirus was declared a pandemic.
Due to the fast-acting nature of the coronavirus, people are looking to put arrangements in place now, as if they do become seriously ill, their capacity to make decisions could be impaired within a matter of days.
We always tell clients that we hope they’ll never have to use their LPAs, but if they do then they are crucial when it comes to making life easier for both the client and their family at what is already a very stressful time. Therefore, it’s vital people are aware of the two different types of LPAs and how to go about making these.
What is an LPA?
An LPA is a legal document in which the person making it (the ‘donor’) appoints one or more people chosen by them to act as their ‘attorneys’.
The donor will continue to make their own decisions whilst they are able but if in the future they lost capacity, for example because of an accident or illness, then their attorneys could step in to act on their behalf.
What are the different types of LPA?
There are two types of LPA and you can choose to make one or both:
Property and financial affairs LPA
This document would give the appointed attorneys legal authority to deal with all the donor’s property and financial affairs on their behalf should the donor find it difficult or become unable to deal with these themselves.
Health and welfare LPA
This document would give the appointed attorneys legal authority to make decisions regarding the donor’s health and welfare on their behalf should they become unable to make these for themselves. This would include, if the donor wanted, the ability to decide on whether or not they receive life sustaining treatment.
It’s worth noting that any LPAs that are made cannot be used by your attorneys until they’ve been registered with the Court. As this process can take around three months, we strongly recommend that all LPAs are registered at the same time as they’re made in case they’re required urgently in the future.
What happens if I lose mental capacity in the future and don’t have an LPA in place?
Without a property and financial affairs LPA, your financial affairs cannot be dealt with until an order has been obtained from the Court of Protection authorising this. It usually takes the Court at least nine months to issue such orders and the application process is often expensive and time consuming.
And without a health and welfare LPA, these decisions would be taken by your doctors and social workers on your behalf in what they believe to be your best interests. It’s worth bearing in mind that this, of course, may not reflect what you would have wanted.
How can I make or amend an LPA with a solicitor during lockdown?
Due to the current restrictions, our Wills, Trusts and Probate team have mainly been speaking to our clients via telephone or video link. The team then prepare the LPA and send it out to the client by post for signature.
At Nelsons, our solicitors are able to work from home and have all the necessary technology that enables agile and secure working. This means that we are still able to engage with our clients in the way we always have done during this lockdown period.
How do I get my LPA witnessed during lockdown or self-isolation?
By law, LPAs have to be signed first by the donor in front of one witness. They then have to be completed by a certificate provider (for example Nelsons) who will confirm they’re happy the donor has understood the document they’ve signed. After this, the attorneys have to sign and have their signatures witnessed.
If someone is self-isolating and lives alone, you could arrange a meeting with a neighbour or friend in your garden, driveway or street. Anyone required to sign should use their own pen, wear gloves and ensure they’re practising social distancing by standing two metres apart. Once complete, you should ensure the document is placed safely in an envelope before removing any gloves.
Will there be any temporary changes to the law?
There has been a suggestion that the Court of Protection might look into speeding up the registration process for LPAs.
However, the law requires a four-week notice period between applying and getting the documents registered, so it’s unlikely that we will see any changes.
Jane Sutherland is a Partner in our Wills, Trusts & Probate team.
For the latest Government advice on the coronavirus, please click here.