How do I set up power of attorney during coronavirus lockdown?

Advice on setting up a legal failsafe against falling ill while observing coronavirus lockdown and social distancing rules has been issued by the official oversight body.

You can secure your finances in case you can no longer handle them by appointing someone you trust as attorney, usually a family member or friend, to take control of your affairs if necessary.

The Office of the Public Guardian warns that registering lasting power of attorney might start taking longer than the usual eight weeks during the current crisis, but suggests some temporary workarounds which are explained below.

It also cautions people who are attorneys – or deputies, who do the same job for people lacking an attorney – that their normal duties remain the same, but they must obey official guidance on social distancing and self-isolation.

The OPG says attorneys and deputies are not allowed to step down temporarily, only permanantly, but warns: ‘You should think carefully before doing this, as it may leave the person without the support they need.’

The OPG, an arm of the Ministry of Justice which oversees the system and investigates any abuses, explains what to do during the coronavirus crisis here. 

This includes the following advice. 

What if you can’t get hold of the OPG? It is getting a high number number of calls but has fewer staff in the office, so attorneys and deputies can refer to the following online resources for guidance on their duties, mental capacity and becoming a deputy.

‘If you have an urgent safeguarding referral which means someone is in imminent danger, then contact the police.’ it adds. 

How do you set up an LPA while in lockdown? The OPG says you can still do this while observing government guidance on social distancing and self-isolating – and also ‘shielding’, which refers to the stricter lockdown rules for people at the gravest risk from Covid-19.

But it adds that if possible, you might want to delay until after social distancing rules are relaxed, and use the time to discuss and think about your wishes, and prepare the paperwork.

If you must go ahead, you should not go into anyone else’s house to get them to sign the LPA or ask anyone to visit your house.

You can post it, or walk it round to people who can sign, but you should stay two metres away from them and wash your hands before and after handling the LPA document.

Everyone has to sign the single paper document, which must remain intact and not include pages that are scanned or photocopied. You cannot use digital signatures – the document must be signed by hand with a black pen.

The OPG stresses that it is very important that the document is signed in the right order, because if not it won’t be registered and you will have to start again.

It normally takes about eight weeks for registration, including a four-week waiting period required by law. This time is intended to allow anyone you have notified about your LPA to object if they want.

You can read the OPG’s full guidance on making and registering an LPA during the coronavirus outbreak here, including rules on the signing order, witnessing and who can be a witness. 

What if you need short-term options for health, welfare and financial decisions? The OPG says you can only make an LPA or do the things below if you have mental capacity.

– Write down your wishes and feelings about your future health and welfare or your property and financial affairs – but this is not legally binding.

– Speak to your bank or building society about creating a ‘third party mandate’ to authorise someone else to carry out transactions for you.

– Set up a ‘general power of attorney’ which authorises someone to manage your financial affairs or do certain things on your behalf while you have the mental capacity to tell them what you want.

– Make an ‘advance decision’ or living will to let people know your wishes about your future health, welfare and medical treatment. These can be legally binding and the NHS has more on this here. 

– Create an ‘advance statement’ that sets down your preferences regarding your future care, but these are not legally binding.

– Set down an ‘advance care plan’ with your healthcare team, but again this is not legally binding.

If you lose mental capacity and don’t have an LPA someone can apply to be your deputy, but this can be a complicated and expensive process. 

The OPG gives more detail on the options above here.

What should you do if you are an attorney or deputy in the current crisis? Your role and responsibilities remain the same during the coronavirus outbreak, but you must follow official guidance, says the OPG.

You can consult someone who is self-isolating about urgent matters by phone or video call, or have a care worker pass on the information, it suggests.

You could also think about decisions made in the past to see if that can help.

If you are self-isolating or shielding yourself, you still have to make decisions for the person you are the attorney or deputy for, warns the OPG. But you can make a decision and then ask someone else to carry it out.

The OPG has more detail here.  

What if someone is at risk? The OPG says the most serious and significant safeguarding risks are being prioritised, and it is trying to carry out a risk assessment on all new referrals within two working days and complete investigations within 70 working days.

Read more here about how the OPG deals with any complaints against people holding power over others’ affairs, which some sadly exploit. 

What do legal and financial experts say?

We asked for feedback on the OPG’s advice, and practical tips for people trying to set up power of attorney or carry out attorney duties right now.

People are at high risk of being taking advantage of in their own homes

‘Arguably there has never been a more important time to have a power of attorney in place,’ says Rachael Griffin, tax and financial planning expert at Quilter.

‘However, if you hadn’t one in place ahead of Covid-19 for the past few weeks there has been difficulty as the OPG had not clarified if and how people could put one in place.

‘Finally, several weeks into our new reality and we have some clarity. The balancing act for the OPG is finding a way to allow people to appoint an LPA at this time, without sacrificing security.

‘The compromise seems sensible, but it is not as watertight as it could be.

‘With the current lockdown there are high risks of people being taking advantage of in their own homes.

‘While the OPG is still requiring a certificate provider [the person who certifies someone has mental capacity] must talk to the donor about the LPA to make sure the donor understands it and is not being pressured to make it, currently these conversations aren’t happening face-to-face as often.

‘Professionals such as providers and attorneys need to be on high alert to ensure anyone registering an LPA is not being forced to do so.

‘If you are looking to appoint an LPA you should not rush into the decision. You need to think carefully and choose someone you trust implicitly.

‘Remember as well that you have the opportunity to nominate different people for your financial welfare and your health and welfare.’

Griffin adds: ‘You want to be very careful about who you allow to access your financial affairs, property and healthcare. Remember that scammers are capitalising on the current environment.’

Do not rush into making an LPA unless you have a trustworthy attorney

‘The Office of the Public Guardian’s advice reinforces that the original LPA form, which is approximately 20 pages, must be completed, signed and witnessed and that photocopied or scanned pages will not be accepted,’ says Emily Deane, technical counsel at the STEP trade body of inheritance professionals.

‘The form can be posted to the parties for signing in the correct order (donor, certificate providers, attorneys, replacement attorneys) and the parties signing and their witness should all adhere to the government’s social distancing measures, including the two-metre distance, gloves, different pens and washing of the hands.

‘Although this process may be lengthy and inconvenient, the OPG is reinforcing these safeguards in order to prevent potential fraud or abuse of the vulnerable.

‘You can still use a professional to set up your LPA even though you cannot meet them in person.

‘They may wish to take your instructions over FaceTime or Skype, which will enable them to assess your capacity and ensure that you are not subject to any undue influence.

‘It would be prudent to instruct a professional to ensure that the LPA is completed and registered properly and that no mistakes are made that would render it invalid.

‘As ever, if considering making a LPA, make sure that you choose an attorney who is absolutely trustworthy and who will act in your best interests.

‘Do not rush into making a LPA if you do not have an attorney that you trust implicitly with your health and/or financial wellbeing.’

Attorneys must ensure people are safe and have basic essentials as well as care

‘If you’re acting as an attorney or deputy, the gov.uk guidance reminds us that your duties and obligations continue, regardless of the current crisis,’ says Holly Chantler, board member at Solicitors for the Elderly.

‘However, there are some restrictions to carrying out your duties in the current climate, such as not being able to visit the person you are an attorney or deputy for.

‘In these cases, you should consider alternative ways of keeping in contact and ensuring the person is safe and has everything they need – this includes basic essentials as well as care.

‘To ensure your loved one has continued care during this difficult time, you may need to involve the use of increased video conferencing or phone calls with the person, their carer or their care home, along with arranging deliveries by online shops or activating and involving local neighbourhood networks.

‘Instigating such processes will still require social distancing as per the government guidelines, but the added discussion with their healthcare teams and/or neighbours will help you as their attorney or deputy to ensure your loved one is still getting the level of personal and physical care required.

‘Should you have any concerns or safeguarding queries, it’s important to remember that the Office of the Public Guardian is still open and working.

‘It is currently still possible to make a lasting power of attorney, seeking advice from a specialist lawyer should you wish to do so.

‘The legal profession is adapting to the current environment much like other sectors. As such, lawyers are continuing to work and can still meet with clients digitally, and where crucial, in person – although still exercising social distancing rules.’