How to get a Lasting Power of Attorney during the COVID-19 pandemic

The current pandemic, caused by a coronavirus called Covid-19, has caused widespread problems for those who struggle to manage their own finances. People who are often able to do things with assistance, such as go to the bank or buy food, may now have to socially distance from the person or people who would normally help them.

Additionally, with many more people suffering from complications caused by Covid-19, there can be uncertainty about who is entitled to make decisions if a patient lacks the capacity to do so. In some situations, this could even relate to the life-sustaining treatment the patient should receive.

Due to issues like this, many people will be looking to make a Lasting Power of Attorney (LPA) at this time.

What is an LPA?

An LPA is a document which allows another person or people to manage your affairs on your behalf. There are two documents, one for Property and Finances, and one for Health and Welfare matters.

Why should I make an LPA now?

Often the person (called the “donor”) wants to create LPAs to allow trusted friends or family (called “Attorneys”) to manage their affairs on their behalf should they lose capacity to do so themselves. Attorneys can also use a Property and Finance LPA with the donor’s consent whilst the donor has capacity. This can be extremely useful if the donor needs to spend time in hospital or if they are “shielding”.

How do I make an LPA during lockdown?

With 15% of LPAs completed incorrectly each year, unfortunately it is not a simple case of “form filling”. It is vital to ensure that your wishes are accurately reflected in the document, and that it is drafted to allow your Attorneys to act with as much flexibility as you want. LPAs which are not drafted accurately can cause practical difficulties for the Attorneys in the event that the donor loses capacity - we see this impacting families and friends who want to do right by their loved one but are unable to do so. You may therefore wish to instruct a solicitor to prepare the documents for you.

To prepare an LPA, you will need to know:

• Names, dates of birth and addresses of everyone you want to act as your Attorney.
• Whether you want your Attorneys to make all decisions together, or whether some decisions can be made separately.
• Do you want anyone to step in as a backup if one or more of your Attorneys cannot act? If so, you will also need their name, date of birth and address.
• Can you ask someone to act as your certificate provider? This is a person who can certify that you know what you are doing, you understand what an LPA does and the power it confers, and that you are not under any pressure or influence to make the document. If you instruct a solicitor to prepare your LPAs then the solicitor will normally act as your certificate provider, though if this is not possible in the current circumstances then there are other people who can do so.
• If there is anyone who might have concerns about the appointment of any of your Attorneys, or anyone who should know the LPA is being made.

The most difficult part of preparing an LPA in the lockdown situation is getting signatures witnessed. There are ways to deal with this and we can assist you in deciding how best to do so.

Once the document is correctly signed and dated, it is valid for use whilst you still have capacity. We would normally recommend that the LPA is also registered with the OPG immediately so that it can also be used in the event that you lose capacity in the future.

Normally the OPG takes around 3 months to register an LPA where there are no objections. At the moment we are seeing much longer delays as the OPG are working with a skeleton staff.

The OPG will then return the original LPA with a “registered” stamp at the bottom. This is the only original document you will receive and must be kept safe.

Sophie Forsyth is a solicitor in the Wills, Trusts and Probate team dealing with LPAs on a daily basis. If you would like more information or to book an appointment, please phone 01295 661556 or visit our dedicated Powers of Attorney webpage at https://www.brethertons.co.uk/site/individuals/wills-trust-probate-solicitors/powers-of-attorney/