The problems facing attorneys and trustees during COVID-19

One of the effects of the pandemic has been to increase awareness of the need to put one's financial affairs in order. Just as there has been visibly increased demand for will writing, many individuals have wanted to make a Lasting Power of Attorney (LPA) just in case their capacity, mental or physical, should become impaired.

As usual, we start with some basics.

Which power of attorney?

Leaving aside any existing Enduring Powers of Attorney ( EPAs), which continue to be valid if they were executed before 1 October 2007 but cannot be made now, in England and Wales an individual has a choice between a Lasting Power of Attorney (LPA) and a general (ordinary)  power of attorney (GPOA). The latter tends to be overlooked these days.  However, in the present circumstances, it may be the one that will be most suitable for many individuals.

GPOAs

The GPOA is granted to authorise the attorney to manage the donor’s property and financial affairs.  The attorney’s authority comes to an end if the donor ceases to have mental capacity.  The relevant legislation is contained in the   Powers of Attorney Act 1971 which still applies. Typically, a general power would be granted to allow the attorney to carry out certain financial transactions on behalf of the donor for a limited period, e.g. during the donor’s absence from the country or during a period of physical incapability or, indeed, during the period of self-isolation. The GPOA does not need to be registered and is therefore fully effective as soon as the person ('the donor') creating it has signed it. The signature should be witnessed but otherwise, there are no other special formalities.

Given that it takes 8 to 10 weeks to register an LPA (if there are no mistakes in the application), it may be a good idea to grant an ordinary GPOA as an interim measure.

LPAs

There are two types of LPA:

LPA for property and financial affairs

The property and financial affairs LPA allows an attorney to make decisions about all money and property affairs, including operating bank accounts, paying bills, collecting income, such as pensions and benefits, managing investments, selling the house and making gifts.

The donor can opt that the attorney can use the LPA while the donor still has capacity but only with consent.

LPA for health and welfare

A personal welfare LPA allows the attorney to make decisions about the donor’s welfare, e.g. where they live and with whom, moving to a residential care home, giving or refusing consent to particular types of treatment as well as day-to-day matters such as clothing, diet, holidays etc. A special express power may be included in the LPA to make decisions about “life-sustaining treatment” (i.e. treatment needed to keep the donor alive), e.g. major surgery, cancer treatment or an organ transplant. 

The issues surrounding life-sustaining treatment and choice have become particularly important during the pandemic, of course.

Unlike the LPA for property and financial affairs, this type of LPA can only be used when the donor loses capacity.

What are the legal requirements for an LPA  to be valid?

Signing an LPA

As with wills, completing an LPA is still a paper exercise. Although the document can be prepared electronically, it is compulsory for the parties signing an LPA to do so in person using a wet signature. Digital signatures are not acceptable.

While some COVID restrictions have been lifted, the requirements for social distancing mean that there may still be some difficulty ensuring that the LPA is executed properly.

It is important to remember that all the parties, i.e. the donor, the attorney(s) and the certificate provider if required, must sign the same original document.

Fortunately, although the LPA must be signed in a set order, the parties to the LPA do not need to sign the LPA at the same time. This means that the LPA can be posted to a party to the LPA or, if people who need to sign live within walking distance of each other, they can deliver the LPA by hand.

Evidence suggests that the virus can survive on paper for several hours and precautions must be in place when handling a document that has been touched by someone else. The recommendation is for each participant to use their own pen and to follow the government recommendations of social distancing, avoiding touching one’s face and washing hands before and immediately after contact.

Witnesses

A witness must watch the donor signing the LPA and then sign it themselves to say they have witnessed the signature. Similarly, each attorney’s signature must be witnessed. A friend or neighbour can do this at a distance outside the house. A signature can be witnessed through a closed window.

Witnesses must be shown blank signature/date boxes before they are completed by the person signing the LPA. They must have a clear view of the person signing and then be shown the completed signature/date boxes before signing in their capacity as a witness. Signatures must be witnessed in person – video calls are not acceptable.

Someone who the donor or attorney lives with can witness their signature, as long as that person is not a party to the LPA. However, if the donor appoints more than one attorney and those attorneys live together, they can witness each other’s signature.

Certificate providers

A certificate provider is an impartial person who confirms that the donor understands what they are doing and that nobody is forcing them to make an LPA. The certificate provider must ensure the donor understands their LPA and they are not being put under any undue pressure. This conversation normally takes place face-to-face, but it can be done over the phone or via video call instead.

An LPA can only be used once it has been registered with the OPG. The current fee for registration is £82 for each LPA.

Guidance from the OPG in relation to deputies and attorneys' duties during COVID-19

In April 2020 the OPG  advised deputies and attorneys in England and Wales that they cannot temporarily give up or delegate their role if they cannot visit the protected person during the coronavirus crisis, even if they themselves are in isolation or shielding because of government guidelines.

'During the coronavirus outbreak, your role and responsibilities as a deputy or attorney remain the same', the OPG’s guidance states. 'If you are self-isolating or shielding, you must continue to make decisions for [the protected person P]. You cannot ask anyone else to make those decisions for you.' However, attorneys and deputies can make a decision and ask someone else to carry it out.

The OPG has also issued guidance for people who have not yet granted an LPA but who may need someone to look after their affairs during the outbreak. It advises against organising house visits to get the LPA signed and witnessed and suggests posting the form to the signatories instead.

New online service for LPA process

On 17 July 2020, the OPG  unveiled its new digital LPA tool, which will help those acting as an attorney to contact organisations, such as banks, insurance companies and healthcare providers, more easily.

Once an LPA  is registered, attorneys and donors will be sent an activation key to allow them to create an account online and add the LPA to the account. They can then create an access code that they can give to any other relevant organisation so that it can view an online summary of the LPA and authenticate its holder. This should enable attorneys to more easily confirm their authority to act where necessary, replacing the current paper-based system that can take weeks, while maintaining the current safeguards to protect the donor from abuse by someone posing as an attorney, says the OPG.

The service is being rolled out first for LPAs registered from 17 July 2020, although the OPG is now working on extending it to LPAs registered earlier in 2020, and some from 2019. It does not have a date for this extension yet and has no current plans for opening up the service to LPAs registered before 2019 (there are apparently over 4 million registered LPAs in total).

Trustees  appointing attorneys

Although an attorney has wide powers to deal with both the donor’s personal financial affairs and investments, it must be remembered that an attorney cannot act on behalf of a donor when the donor is acting as trustee. There are some ways around this, though, depending on the circumstances.

The first, section 25 of the Trustee Act 1925, enables a mentally competent trustee to delegate authority to act to another person for a maximum of 12 months.  However, the attorney automatically loses the authority to act on behalf of a trustee if that trustee loses mental capacity.

If there is a known risk that a donor who is a trustee is in danger of losing mental capacity it is preferable for them to resign. If they have already lost the mental capacity to act, the other trustees may be able to appoint a replacement trustee under section 36 Trustee Act 1925 if there is no express power in the trust to do this (which ideally there should be). In some cases, an application may be needed to the Court to have the incapable trustee removed.

Comment

The challenges posed by the pandemic keep emerging and, whilst the financial resilience of many clients continues to be tested, there is an increasing need for quality advice in relation to all estate-related matters. Next month we will look in more detail at trustees' duties and responsibilities during this testing time.