Although many aspects of daily life have come to a standstill, the question of who should have the right to speak on your behalf should you lose capacity remains a key concern, particularly during COVID-19.
Having a Lasting Power of Attorney in place may be extremely helpful for the elderly or vulnerable in present circumstances. Their attorneys would have the authority to use their bank accounts, to purchase goods on their behalf, such as food, clothes or other necessities.
Making a Lasting Power of Attorney (LPA) can seem daunting. However, to make this process a little bit easier, we have constructed a guide on making and registering a Lasting Power of Attorney during the coronavirus pandemic.
Government Advice
The government’s advice is to delay, where possible, making and registering an LPA until the restrictions around social distancing and self-isolation have been relaxed although they will continue to provide the registration service for those most in need at this time. Naturally, not all scenarios allow for the delaying of the application, and you should follow steps to ensure you adhere to the restrictions when making an LPA.
How Do I Make an LPA During the COVID-19 Pandemic?
First and foremost, the restrictions around social distancing and self-isolation should be followed throughout all steps of the process. Elderly and other vulnerable people are those most likely to need an LPA, and they are also an at-risk group; therefore, you should continually ensure the safety of all parties.
Signing an LPA During COVID-19
The LPA will still need to be physically signed by all parties as digital signatures are not yet accepted. There are a couple of ways to achieve this whilst maintaining social distancing:
- You could post the LPA document or preferably, the relevant page, to the person who needs to sign. A carer or someone who would otherwise be in regular contact with them, such as a gardener, can help them sign it and act as their witness.
- You can also ask a neighbour, to act as a witness. The person could come to the boundaries of your house, or stay near the fence, ensuring two meters at all times, and you should both wash your hands before and after handling the documentation. Standing outside, you could place the documents on the doorstep after you have signed it and then step back while they sign.
- A witness could also see the signature through a closed window, ensuring they wash their hands both before and after if they sign the documents.
- You could also conduct the signing in a neutral environment, such as in a car park while staying in separate cars and placing the documents on the car bonnet for each person to sign. Again, wash your hands before and after handling the document.
There are also some restrictions on what is accepted on the LPA documentation. For example, you cannot:
- Use digital signatures in the place of ’wet’ signatures.
- Send a photocopy of the original LPA document for someone to sign. The original document must bear all required signatures. You can send just the relevant original page for signing.
- Receive scanned or photocopied pages from people to form one final document. An LPA that includes non-original pages cannot be registered.
Witnessing the Donor and Attorneys’ Signatures
One of the more challenging scenarios with creating an LPA during the coronavirus is witnessing the necessary signatures. It is essential that someone watches the donor sign the document and that the witness then also signs the document. Additionally, the signature of each attorney and replacement attorney needs to be witnessed.
Securing Witnesses
The witness should:
- Be over the age of 18.
- Have mental capacity.
- Not be an attorney or replacement attorney on the LPA.
Rules for Witnessing Signatures
To ensure all witness signatures are valid, these steps should be followed:
- The witness must be shown the form with the blank signature and date box before it is signed.
- The witness should have a clear view of the person who is signing.
- The witness should also be shown the signature and date box immediately after it has been signed.
- The witness must sign straight after the donor/attorney/replacement attorney.
- All signatures should be seen in person; witnessing cannot be done over a digital connection, such as Skype or FaceTime.
These rules also apply if the donor has difficulty signing documents, and therefore, requires someone to sign on behalf of them. In that situation, the person signing on behalf of the donor must do so in the presence of the donor and two other people, who should act as witnesses for this. These two additional witnesses should also sign the LPA. Again, all parties must ensure they do this following the government advice on social distancing.
Signing in the Correct Order
The LPA documentation must be signed in the correct order to ensure it is valid. More information on this process can be found on the government website here.
Conversation Between Donor and Certificate Provider
Under normal circumstances, this conversation would happen face-to-face. However, steps can be taken to ensure this still occurs while observing government guidelines. Using video call software such as Skype or FaceTime is permitted for this conversation; alternatively, a phone call can be used.
It is vital that this call be private, where possible, and that the certificate provider ensures the donor is not being pressured into making the LPA. Where appropriate, NSS Legal can act as the Certificate Provider. However, if this is not possible, we can guide you on how this part of the LPA needs to be completed.
Final Considerations
When submitting the documents, consider who the correspondent should be. This will be the person who receives the registered LPA. The original or a certified copy will need to be seen by banks, building societies and care homes whenever a decision is made on the donor’s behalf. We recommend sending certified copies, where necessary, and ensuring that the original is kept safe.
Finally, during this time, Royal Mail will be experiencing a large volume of letters and parcels. As a result, the delivery time may be longer than expected. As with most places of work, the Office of the Public Guardian will be working with a reduced number of staff, meaning that the times taken to process and register LPAs will significantly increase on their usual timeframe of three months. You should bear this in mind when submitting the application.
For more information on how to manage yours or your family member’s personal affairs during the coronavirus, read our article on signing a Will during self-isolation. You can also get in touch with us directly, as our solicitors provide advice on any power of attorney issues you may have through these uncertain times.
