Signing your Lasting Power of Attorney during the coronavirus pandemic

Following the recent publication of our advice to enable clients to safely and legally sign their new will during the current coronavirus pandemic, we have now produced a separate advice note for completion of your Lasting Power of attorney (`LPA`).

This guidance note provides a summary of the current position during the lockdown period and will enable your LPA to be completed while respecting the social distancing guidelines.

Can Rutherfords LLP prepare LPA`s?

Yes, our team of private client lawyers are working from home using a secure digital network to ensure continuity of service.

We can take instructions by email, telephone conference and Zoom video conference.

Call our experienced team on 01827 311411.

Your call will be diverted to a specialist in the department or we will arrange for your call to be returned.

What are the types of Lasting Power of Attorney?

There are two types of lasting power of attorney:

• Property & Financial Affairs – to allow attorneys to make decisions about your property (your home) and to look after your bank accounts
• Health & Welfare – to allow your attorneys to make decisions about your medical treatment, care needs, medication, where you should live, and can include making decisions about life-sustaining treatment

We can discuss your particular needs and your choice of attorneys, and also consider whether you need just a single LPA or both, as these are two separate legal documents.

Our team can discuss any queries over the telephone, or if you prefer, video conference.

Who has to sign an LPA?

Your LPA must be signed by you (as the donor) and the attorneys in the presence of an independent adult witness.

Your family or your attorneys cannot act as a witness. Neither can your employee (or attorneys’ employee) or the owner, manager or employee of a care home where you live (or a member of their family).

The LPA must also be signed by an independent certificate provider.

For your LPA to be valid it must be signed in the correct order.

What is a certificate provider?

This is a person who is required to sign a declaration confirming that:

• You are making the LPA of your free will
• You understand the significance and purpose of the LPA
• You have not been put under pressure to make your LPA
• There has been no fraud involved in making your LPA
• There is no other reason for concern

This is an important safeguard. The certificate provider should discuss your LPA with you in private without the attorneys or other people present (if possible).

Your LPA cannot be registered and used until signed by the certificate provider.

Who can act as a certificate provider?

The certificate provider must be at least 18 years old and either:

• A lawyer or someone with professional skills to properly judge whether you understand what you are doing and that you are not being forced to make an LPA
• A friend, colleague or someone you have known well for at least 2 years who is trusted and capable to make this assessment

The private client team at Rutherfords LLP are experienced at acting as certificate providers for our clients and taking protective measures and safeguards to ensure that the LPA is in your best interests.

Rutherfords LLP will act as your certificate provider as part of the quoted fee and also register your LPA with the Office of the Public Guardian (`OPG`).

Your LPA cannot be used until it has been registered.

What is the correct order of signing?

To ensure your LPA is valid it must be signed in the following order:

• You should sign the LPA first as the donor including 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 at least 18 years and cannot be the attorney or replacement attorney.
• The certificate provider must sign the LPA
• Attorneys and replacement attorneys must sign after you and the certificate provider (also in the presence of a witness)

How do I sign an LPA during the pandemic?

Due to the risks of coronavirus additional safeguards are needed during the signing process.

• If you intend for the witness to be present do not arrange for a witness to sign your LPA if you (or the witness) have symptoms of coronavirus or are isolating under the `stay at home` guidance because someone in your household may have symptoms.
• If you intend for the certificate provider to be present and you are not using a professional certificate provider do not arrange for a friend or colleague to act as a certificate provider if you (or the certificate provider) have symptoms of coronavirus or are isolating under the `stay at home` guidance because someone in your household may have symptoms.

We recommend that the COVID-19 risks are minimised by following the social distancing guidelines and ensuring that the LPA is signed in the correct order:

• Do not allow the witness (or certificate provider) to enter your house
• Make sure you and the witness stay 2 metres apart at all times
• Both you and the witness should wear gloves (if they do not impede signing)
• Do not share a pen (you and each witness should use their own pen)
• Avoid touching your face in accordance with the Government guidance
• You can then sign the LPA at section 9 (and continuation pages) with the witness present (but standing 2 metres away)
• The certificate provider must follow the guidance under section 10 of the LPA form. Either post the LPA to the certificate provider to sign or, if they are present, discuss the LPA with the certificate provider keeping a safe distance of two metres. Alternatively, if the certificate provider is not present you should discuss the LPA with them by telephone or video conference call
• The certificate provider will then sign the original LPA
• Post the LPA to Rutherfords LLP who will check the document and then post to each attorney or replacement attorney to sign. If the attorneys are present, make sure that they sign from a safe distance of 2 metres to respect the social distancing guidelines
• Anyone touching or handling the LPA is advised to wear gloves, ensure they do not touch their face, and wash their hands for at least 20 seconds after touching the document
• You then sign and date section 15 as the donor to enable your LPA to be registered
• Place the LPA in an envelope

Return the original LPA to Rutherfords LLP so that we can check that the document has been completed correctly and lodge the LPA with the Office of the Public Guardian for registration

Your LPA cannot be used until registration is complete.

Can I sign my LPA remotely?

Unfortunately, you cannot approve and sign your LPA remotely, and neither can your attorneys or certificate provider.

It is not possible to sign your LPA via video link or video messaging.

How do I proceed?

Please call 01827 311411 or make an enquiry through our website rutherfords.cocoonfxmedia.io/

Tony Illsley is a partner with Rutherfords LLP