Continuing the theme of safe execution of legal documents during the Coronavirus crisis, I thought it would be useful if we were to remind ourselves of how Lasting Powers of Attorney are signed and how we can continue to complete these essential documents accurately during lockdown.
Remind me what a Lasting Power of Attorney is?
A Lasting Power of Attorney (‘LPA’) is a legal document that allows you to give one or more people (known as ‘attorneys’) authority to make decisions on your behalf.
There are two types of LPA:
1. Lasting Power of Attorney for Property and Financial Affairs; this allows attorneys to make decisions on your behalf about your property and financial affairs, for example paying bills, selling your property, and administering your bank account.
2. Lasting Power of Attorney for Health and Welfare; subject to any restrictions you include in the document, this allows attorneys to make decisions in relation to medical treatment, care, medication, where you live, and even life sustaining treatment.
These LPAs are two separate documents. You can complete one document on its own or both at the same time.
Once completed and registered, each LPA provides the best way to ensure that somebody you trust is authorised to make decisions for you and carry out your wishes should you no longer wish to or no longer be able to make such decisions yourself.
How do you sign an LPA?
An LPA is signed by the donor (the person making the LPA) and the attorneys in the presence of an independent adult witness. The LPA must be signed in the correct order to be valid. Both types of LPA must also be signed by an independent certificate provider.
An independent person must complete and sign a certificate in both forms of LPA to confirm that, in
their opinion, you are making the LPA of your own free will and that you understand its purpose and scope and the powers you are giving your attorneys. This is an important safeguard and your LPA cannot be registered unless the certificate is completed.
A lawyer, a GP or another professional with the relevant skills can act as certificate provider, although there may be a charge for this service from any professional. Alternatively, someone who has known you for over 2 years can act as certificate provider in certain circumstances.
The correct order to sign your LPA is as follows:
- You, the donor, must sign the LPA first, including signing any continuation sheets.
- For Health & Welfare LPAs, you must also sign section 5 (life sustaining treatment).
- You must sign the LPA in the presence of a witness. The witness must be over 18 and cannot be an attorney or replacement attorney. Your witness should sign, date and provide their contact details in the LPA.
- The certificate provider must sign the LPA next. There are some restrictions on who can act as certificate provider and further information is set out in section 10 of the LPA form.
- Attorneys and replacement attorneys must sign after you and the Certificate Provider, also in the presence of a witness, again with their witness signing and providing their details.
How can this be adapted to social distancing?
We would suggest that the following precautions could be taken to ensure that you sign your LPA safely during the COVID-19 lockdown:
- Witnesses can watch you sign your LPA from a safe 2m distance, or even through a window. The original document can then be passed over for witnesses to sign and complete their details, ensuring that a 2m distance is maintained.
- We would also recommend that all parties wear gloves and use their own pen. All parties should avoid touching their face in accordance with Government guidelines.
- A certificate provider must follow the guidance in section 10 of the LPA form. They can discuss the LPA with the donor from a 2m distance or by video call if they are satisfied that they can accurately assess the Donor’s mental capacity and understanding via such a call.
- The certificate provider must sign the original LPA form before the attorneys so arrangements would need to be made for the original LPA to be handed or posted to the certificate provider safely, before being forwarded on to the attorneys for signing.
- The original LPA document can be circulated by post to each attorney or handed to an attorney if it is safe to do so. Again, anyone handling the document is advised to wear gloves, ensure that they do not touch their face and wash their hands immediately after touching the document.
- Finally, the Donor must sign and date section 15 of the LPA, being the application to register the LPA, after everyone else has signed the document.
The Donor should use the checklist at the back of the LPA to check that they have completed the document correctly, before lodging the LPA for registration with the Office of the Public Guardian.
If you need advice on putting an LPA in place, or assistance with preparing and LPA and what to include in the LPA, please contact the Private Client team.
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.