Coronavirus has particularly highlighted the importance of putting arrangements in place, should the worst happen. As a result, there has been an increase in the number of people wanting to make Lasting Powers of Attorney (LPA) in the event that their capacity becomes impaired.
Fortunately, if you want to make an LPA during the pandemic, you can still do so while observing government guidance of social distancing, self-isolating and shielding.
Why make a LPA?
No one can predict the future but measures can be put in place to ensure that your wishes are followed and save family members experiencing additional worry and stress, should your capacity become impaired for any reason.
A LPA gives you the control to appoint a trusted individual to deal with your affairs, should you no longer be able to do so yourself.
Many assume that if they are married or in a registered civil partnership, their spouse would automatically be able to deal with their affairs. However, the reality is that without a LPA they will not have the authority to do so.
When should I make a LPA?
A LPA should be put in place early, and most importantly, when you still have the capacity to do so.
Essentially, mental capacity describes a person’s ability to make decision. A person’s mental capacity might be affected if they suffer an illness, injury or as a result of growing older.
Being unwell, vulnerable or suffering an injury does not automatically mean someone lacks mental capacity. Where a person’s mental capacity is in doubt, a healthcare professional will carry out an assessment in relation to the specific decision that the person is making. They will assess capacity by checking whether someone is able to understand, use, remember and communicate information about the decision in order to make that decision.
What types of LPA are there?
There are two types of LPA:
LPA for property and financial affairs
A LPA for property and financial affairs can be put in place to deal with things like operating your bank accounts, managing your investments, dealing with benefits and pensions or selling your property. The donor can opt that the attorney can use the LPA while the donor still has capacity but only with consent.
Standard instructions can be included in this type of LPA to allow for greater flexibility to changing circumstances and allow the contents of your Will to be disclosed where it is in the best interests of you and your estate.
LPA for health and welfare
The Coronavirus pandemic has particularly highlighted the issue surrounding life-sustaining treatment and choice. We all have the right to refuse life-sustaining treatment but difficulties arise where someone has lost the mental capacity to make that decision when it is required.
A LPA for health and welfare provides the opportunity to either authorise your attorneys to give or refuse consent to life sustaining treatment, or to refuse such authority. It can therefore offer peace of mind that should the worst happen, any life-sustaining treatment given on your behalf reflects your wishes.
It also covers decisions about your diet, dress, where you should live and medical treatment.
Unlike the LPA for property and financial affairs, this type of LPA can only be used when the donor loses capacity.
What are the requirements for making an LPA?
Importantly, the donor of a LPA must:
Be over 18 years of age; and,
Have capacity to make the LPA at the time is it executed.
The donor can choose whether to appoint the same attorneys under both types of LPA or different attorneys for each type of LPA.
Where different attorneys are appointed under each type of LPA, the donor should be aware that they may need to work together in relation to certain decisions. For example, the decision as to where a donor lives is a decision attorneys can make under the health and welfare LPA. However, if this decision involves the sale of the donor’s property, the attorneys under the LPA for property and financial affairs would also need to act.
The Mental Capacity Act 2005 and Coronavirus
The Mental Capacity Act 2005 (MCA 2005) provides for and safeguards decision-making for individuals who lack capacity. It applies to anyone involved in the care, treatment and support of people who are unable to make decision(s) for themselves.
The MCA 2005 was not altered as a result of the emergency Coronavirus Act which came into force in March 2020. As such, the five principles which underpin the act remain as important as ever:
Everyone is presumed to have mental capacity until it is established that they do not.
No-one is to be judged to lack capacity until all reasonable steps have been taken to support that person to make a decision, and these have been unsuccessful.
A person cannot be judged to be unable to make a decision simply because that decision appears unwise.
If a person cannot make a decision, then any decision made on her/his behalf must be made in her/his best interests
When making a best interests decision, the least restrictive option – the choice that interferes the least with a person’s freedoms – is the one which must be chosen.
Although there have been no legal changes to MCA 2005, those to which the act applies have had to adapt in order to adhere to its core principles under completely new and unparalleled circumstances. Recognising the challenges COVID-19 may pose, the government have issued emergency guidance for decision-makers during the Coronavirus pandemic.
Capacity assessments and Coronavirus
As mentioned above, in order to make a LPA the donor must have capacity to make it at the time of executing it. Where there is any doubt, an assessment of the donor’s capacity is required. The MCA 2005 provides a two-stage test to follow in order to assess capacity:
‘The diagnostic test’ – is there any impairment of or disturbance in the functioning of a person’s mind or brain?
If so, is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
As the MCA 2005 has been unaffected by emergency legislation, this test remains legally valid but the manner in which it is applied has changed as a result of COVID-19.
Sadly, those most at risk of COVID-19, the elderly and those suffering long-term health conditions, are often those that require protection under MCA 2005 and could - but won’t necessarily - need to have their capacity assessed before they can put a LPA in place.
Capacity assessments are often conducted by healthcare professionals in a face-to-face appointment. However, lockdown and the pressure on the NHS has meant that these appointments have not been available.
However, as a response to the Coronavirus threat, assessments are now largely conducted by electronic means, utilising platforms such as Zoom, Facetime and Whatsapp. The general consensus is that assessments of this nature have generated the same outcomes as assessments conducted face-to-face. Further, it appears that remote assessment will continue to have a place as a key assessment tool despite the easing of lockdown because, firstly, COVID-19 will remain a threat (particularly for those in ‘high risk’ groups) but also because some client groups have responded better to this medium.
Applying for a LPA during Coronavirus
LPAs may previously have been viewed by some as a straight-forward ‘form filling’ exercise. However, following lockdown and the introduction of social-distancing guidelines, the process has become much more challenging.
Signing a LPA
Similarly to making a Will, to apply for a LPA, the original document must be signed and witnessed by various parties (including the donor, the attorneys, the certificate provider and the witnesses). Unlike some other legal documents, electronic signatures are not acceptable.
Before lockdown, the option was available for all the parties to gather at the same time to sign the document. However, this is no longer possible in light of the measures in place to protect against the spread of Coronavirus; all parties to the LPA must sign the document while adhering to social distancing guidelines.
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. Our best advice is for each participant to use their own pens and to follow the government recommendations of social distancing, avoiding touching one’s face and washing your hands before and immediately after contact.
Again, witness requirements are similar to those when making a Will. Each person required to sign the LPA must have their signature witnessed in person by an adult independent third party.
It is possible to satisfy this requirement while social distancing, provided that the document can be witnessed in a space where you can maintain an appropriate social distance and the witnesses’ line of sight is maintained throughout the signing process. The witness must be shown the blank signature and date box before the signature is applied and be shown the completed signature and date box again immediately afterwards.
Therefore, a donor or attorney can ask appropriate individuals, such as neighbours or local visitors, to witness their signature via the following methods:
From a different room
Outside (either in the street, garden, or over a fence)
Through a window (of a house or car).
A certificate provider is an independent and impartial person who signs the LPA to verify that the donor has understood the documents and that there has been no undue pressure to enter into them.
There are various options as to who can act as certificate provider, including:
A member of the Association of Independent Visitors
Someone who has known you for 2 or more years
If possible, they should discuss the LPA with the donor in private, without attorneys or other people present, before they sign their part of the LPA. Although this is usually conducted by a face-to-face conversation, it can be done over the phone or via video call instead.
How can Boyes Turner help?
Here at Boyes Turner, we want to reassure our clients that while Coronavirus continues to cause disruption and challenges for many, we are providing the same high level of service to suit our clients’ changing needs.
Our team has taken advantage of Boyes Turner’s investment in technology to enable us to work remotely over the coming weeks, meaning it is "business as usual". We can see clients using conference or video calling, with uninterrupted access to telephone and email facilities.
We are here to provide some much needed reassurance and continuity in what are uncertain times, while ensuring we play our part in preventing the spread of the virus and protecting the welfare of our clients.
In addition, we are offering a 30% discount to NHS workers on our fixed-fee services (including the preparation of Wills and Lasting Powers of Attorney) on presentation of valid NHS ID.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.