Coronavirus has particularly highlighted the importance of taking precautions in case the worst should occur. As a result, there has been an increase in the number of individuals seeking to issue Lasting Powers of Attorney (LPA) in the event their capacity is compromised.
Fortunately, if you want to do an LPA during the pandemic, you can still do so while following government guidelines on social distancing, self-isolation, and shielding.
Why do an LPA?
No one can predict the future, but steps can be taken to ensure your desires will be granted and to save family members from additional worry and stress in the event that your capacity is compromised for any reason.
An LPA gives you control to appoint someone you trust to take care of your affairs in case you can no longer do it yourself.
Many assume that if their spouse is married or entered into a civil partnership, they are automatically able to get on with their affairs. However, the reality is that without an LPA they are not empowered to do so.
When should I do an LPA?
An LPA should be set up early and especially when you are still able to do so.
In essence, mental performance describes a person’s ability to make decisions. A person’s mental performance can be impaired if they suffer from an illness, an injury, or as a result of aging.
Feeling unwell, vulnerable, or injured does not automatically mean that someone is mentally lacking. If there is any doubt about a person’s mental capacity, a healthcare professional will conduct an assessment related to the specific decision the person is making. They assess capacity by checking that someone can understand, use, store, 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 real estate and financial matters
A real estate and financial LPA can be set up to handle things like running your bank accounts, managing your investments, handling benefits and pensions, or selling your property. The donor can decide that the lawyer can use the LPA as long as the donor still has capacity, but only with consent.
Standard instructions may be included in this type of LPA to allow greater flexibility as circumstances change and to allow disclosure of the contents of your will when it is in the best interests of you and your estate to do so.
LPA for health and wellbeing
The coronavirus pandemic has highlighted the issue of life sustaining treatment and choice in particular. We all have the right to refuse life support, but difficulties arise when someone has lost the mental ability to make that decision when necessary.
A Health and Wellbeing LPA provides the option to either authorize or refuse consent to life support treatment from your attorneys, or to refuse such authority. It can be comforting, therefore, that in the worst case scenario, any life sustaining treatment given on your behalf will reflect your desires.
It also includes choices about your diet, clothing, where you should live, and medical treatment.
Unlike the real estate and financial LPA, this type of LPA can only be used when the donor loses capacity.
What are the requirements for an LPA?
It is important that the donor of an LPA:
- Be over 18 years old; and,
- Have the ability to build the LPA at the time it is run.
The donor can choose to appoint the same lawyers for both types of LPA or different lawyers for each type of LPA.
If different lawyers are appointed for each type of LPA, the donor should be aware that they may need to work together on certain decisions. For example, deciding where a donor lives is a decision attorneys can make under the LPA for Health and Welfare. However, if that decision involves selling the donor’s property, then the LPA’s real estate and financial lawyers would have to act too.
The Mental Capacity Act 2005 and Coronavirus
The Mental Capacity Act 2005 (MCA 2005) provides for and secures decision-making for people without capacities. This applies to all those involved in the care, treatment and support of those who cannot make a decision (s) for themselves.
The MCA 2005 was not changed due to the Coronavirus Emergency Act that came into force in March 2020. Therefore, the five principles underlying the law remain important:
- It is believed that everyone has mental abilities until it is determined that they are not.
- It should be judged that no one is lacking capacity until all reasonable steps have been taken to assist that individual in decision-making and these have been unsuccessful.
- A person cannot be judged incapable of making a decision just because that decision seems unwise.
- If a person cannot make a decision, any decision made on their behalf must be made on their behalf interest
- When making a decision in the best interest, the least restrictive option must be chosen – the choice that least interferes with a person’s freedoms.
While there have been no legal changes to MCA 2005, those to whom the law applies had to adapt to adhere to its core principles in entirely new and unprecedented circumstances. The government has recognized the challenges that COVID-19 can bring Emergency management for decision makers during the coronavirus pandemic.
Capacity ratings and coronavirus
As mentioned above, the donor must have the ability to prepare an LPA at the time of its implementation. When in doubt, an assessment of the donor’s capacity is required. The MCA 2005 offers a two-step test to assess capacity:
- “The Diagnostic Test” – Is there any impairment or disorder in the functioning of a person’s mind or brain?
- If so, is the impairment or disorder sufficient for the person not to be able to make a particular decision?
Since the MCA 2005 is not affected by the emergency legislation, this test remains legally valid, but the way it is applied has changed due to COVID-19.
Unfortunately, those most at risk from COVID-19, the elderly and those suffering from long-term health conditions, are often those in need of protection under MCA 2005 and may – but not necessarily – need to assess their capacity before deploying an LPA may be available.
Capacity assessments are often conducted by health professionals in a face-to-face appointment. However, due to the lockdown and pressure on the NHS, these dates were not available.
In response to the coronavirus threat, assessments are now largely carried out electronically using platforms such as Zoom, Facetime and WhatsApp. There is general consensus that assessments of this type have produced the same results as assessments conducted face-to-face. In addition, despite the loosening of the lockdown, remote assessment still seems to have a place as an important assessment tool, as COVID-19 remains a threat on the one hand (especially for people in high-risk groups), but also because some customer groups have better on groups this medium responds.
Applying for an LPA during coronavirus
LPAs may previously have been viewed by some as a simple exercise in filling out forms. However, with the lockdown and social distancing guidelines in place, the process has become much more difficult.
Signing an LPA
Similar to making a will, the original document to apply for an LPA must be signed and witnessed by various parties (including the donor, attorneys, certificate provider, and witnesses). Unlike other legal documents, electronic signatures are not permitted.
Before the lock, the option was available to all parties to meet at the same time to sign the document. However, given the measures taken to protect against the spread of the coronavirus, this is no longer possible. All parties to the LPA must sign the document in compliance with social distancing guidelines.
Fortunately, the parties to the LPA do not have to sign the LPA at the same time, although the LPA must be signed in a set order. This means the LPA can be sent to either party of the LPA or, if people who need to sign live within walking distance of each other, the LPA can be hand delivered.
There is evidence that the virus can survive on paper for hours and precautions must be taken when handling a document that has been touched by another person. Our best advice is that each participant use their own pens and follow government recommendations on social distancing to avoid touching their face and washing their hands before and immediately after contact.
Witness requirements
Once again, Witness requirements are similar to drawing up a will. Any person required to sign the LPA must have their signature personally attested by an adult independent third party.
It is possible to meet this requirement during social distancing, provided the document can be seen in a location that allows you to maintain reasonable social distance and maintain line of sight of the witnesses throughout the signing process. The witness must be shown the blank signature and date field before the signature is applied, and immediately thereafter the completed signature and date field must be shown again.
Therefore, a donor or attorney can ask appropriate individuals, such as neighbors or local visitors, to witness their signature in the following ways:
- From another room
- Outside (either on the street, in the garden, or over a fence)
- Through a window (of a house or a car).
Certificate provider
A certificate provider is an independent and impartial person who signs the LPA to verify that the donor understood the documents and that there was no undue pressure to enter them.
There are several ways who can act as a certificate provider, including:
- Your doctor
- A lawyer
- 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 privately with the donor without attorneys or anyone else present before signing their part of the LPA. While this is usually done through a face-to-face conversation, it can instead be done over the phone or via video call.
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