The impact of COVID-19 on Lasting Powers of Attorneys

Private Client barristers Claire van Overdijk and Alex Cisneros consider the benefits and challenges of creating a Lasting Power of Attorney during the current COVID-19 pandemic.

So much has changed in the last few weeks and the legal industry is no exception. Claire and Alex provide guidance on what can be done during COVID-19, taking examples from other jurisdictions where witnessing LPAs by video link has been permitted through emergency laws.

They explore where LPAs developed from and how the legal conceptualisation of substituted decision has been codified in various statutory materials. They also look at two requirements for making an LPA where mistakes are often made; providing a certificate and witnessing signatures.

Finally, the article considers business LPAs as a tool for administering business relationships at a time when individuals may not be able to make decisions for themselves.

Acting as a certificate provider

The article discusses the origin of this concept and why it is seen as a necessary safeguard to protect donors. Claire and Alex consider the recent guidance from the Office of the Public Guardian for certificate providers and suggest practical steps for how the role can be undertaken considering the rules on self-isolation.

Witnessing an LPA

There are two areas of the LPA form that require a witness to attest that the document was signed in front of them:

(1) the signature of the donor and

(2) the signature of any attorneys.

This article draws parallels with the recent discussions about the execution of wills and suggests practical steps for getting an instrument witnessed (for example, asking someone in the same household to do it or signing the instrument through a glass door).

This article also explores the latest guidance from the Office of the Public Guardian and contrasts it with guidance and emergency laws in Scotland, New South Wales, Ontario and the USA to illustrate how other jurisdictions are leading the way in facilitating the making of LPAs during the pandemic.

Business LPAs

Illness, injury, or long-term absence might prevent an individual from making decisions on a temporary or permanent basis and their business could be at risk if they decide how it should be run. The article offers a perspective on business LPAs and the benefits that such instruments may bring for different types of businesses during the current health crisis.

You can read or download the full article here.

More information

This article was written by Claire Van Overdijk and Alex Cisneros of our Private Client Team. For more information and support concerning LPAs such as those discussed in this article, or in relation to litigation concerning mental capacity generally please contact Matt Sale at +44 (0)20 7427 4910, or Peter Foad at +44 (0)20 7427 0807.

Covid-19 22 Apr, 2020